The court, known as the Iraqi Special Tribunal for Crimes Against Humanity, will be held in Baghdad and will rely almost exclusively on Iraqi nationals to serve as judges, prosecutors and investigators.
If Hussein’s trial is run professionally, international law experts agree that holding the deposed dictator accountable to his own subjects in Iraqi court could provide a powerful national catharsis and be an important step toward building democracy in Iraq.
Still, critics decry the court as another example of the Bush administration’s go-it-alone approach and question whether Iraq’s court system — crippled by decades of corruption and isolation — has the expertise or the credibility to handle complex war crimes cases on its own. While the statute provides for international advisers and possibly non-Iraqi judges, it creates no formal role for the United Nations.
“I don’t think anyone has demonstrated that the Iraqi justice system will be capable of taking on the entire burden,” says Georgetown University law professor David Scheffer, former U.S. ambassador at large for war crimes issues during the Clinton administration. “In my view, there has not been a strong enough embrace of international involvement.”
Though U.S. officials have not said where Hussein will ultimately face trial, President George W. Bush pledged last week to “work with the Iraqis to develop a way to try him in a way that will stand international scrutiny.”
Salem Chalabi, legal adviser to the Iraqi Governing Council and the nephew of council member Ahmad Chalabi, a controversial figure in Iraqi politics, says the council’s goals are “to demonstrate a fair trial and to have Iraqi ownership of the process.”
Last week, 100 Iraqi judges and lawyers completed a two-week training course on war crimes and international law put on in Baghdad by the Coalition Provisional Authority. Among the discussion topics: witness protection, evidence collection and the exhumation of mass graves. For many members of the Iraqi bar, it was their first exposure to the lessons learned from international tribunals such as the courts established in the aftermath of strife and war in Rwanda and the former Yugoslavia.
Those pushing for broader international participation maintain that bringing former regime members to justice will require resources and experience that the Iraqi judicial system cannot provide alone. In addition, they argue that Hussein must be held accountable not just to Iraqis, but to the world community, for his alleged crimes.
“While Saddam’s crimes have been largely against the Iraqi people, there are many, many other victims — Iranians, Kuwaitees, Americans and others. For those people to feel invested in this, there needs to be robust international participation,” says Elisa Massimino, director of the D.C. office of the Lawyers Committee for Human Rights. “If it’s done right, this could really be the way the international community pulls back together after the divisiveness over the decision to go to war.”
Instead, U.S. support for an Iraqi tribunal, on the heels of a decision to bar nations that opposed war in Iraq from lucrative contracts, has deepened the rift between the United States and the international community.
And the desire of Iraqi leaders to impose the death penalty on Hussein and members of his regime makes compromise unlikely.
Indeed, U.N. Secretary General Kofi Annan closed the door last week to U.N. support for any tribunal that included the death penalty as a punishment.
“This tribunal will cost hundreds of millions of dollars, if it’s done professionally,” says Scheffer. “It’s extremely important that [the Iraqis] recognize that imposing the death penalty will shut the door to any U.N. or European effort to support the court.”
Without funding from the international community, the United States could find itself in the awkward role of underwriting an Iraqi tribunal, thus creating the unwanted appearance of U.S. control.
“If the courts are Iraqi and the people behind it are the United States, then you have a concern about how this will be perceived in the Arab world and globally,” says Hanny Megally of the International Center for Transitional Justice.
Salem Chalabi, who helped to draft the statute creating the Iraqi special tribunal, says the Iraqi council will not abandon the death penalty to woo international support.
“I think the Iraqi people feel that death should be included,” says Chalabi, a London-based attorney who attended Northwestern University Law School. “If someone is found guilty of killing hundreds of thousands of people and gets only a 20-year sentence, that would be seen by the Iraqi people as illegitimate.”