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Is it International Enough? A Critique of the Iraqi Special Tribunal in light of the Goals of International Justice
Date: 2/9/2004


Is it International Enough? A Critique of the Iraqi Special Tribunal in light of the Goals of International Justice
Michael P. Scharf1


Introduction

On December 10, 2003, Iraq's U.S.-appointed government promulgated the "Statute of the Iraqi Special Tribunal,"2 in order to set the legal framework for the prosecution of high level members of the Ba'ath regime for genocide, war crimes, and crimes against humanity. Just a few days later, Saddam Hussein was captured and will presumably be tried by the new Special Tribunal along with the thirty-eight other "most wanted" figures now in custody who appeared in the U.S.-issued deck of Iraqi fugitive "playing cards." Among the crimes most likely to be prosecuted are the genocidal Anfal campaign against the Iraqi Kurds, which resulted in the deaths of over 100,000 civilians and the destruction of more than 4,000 villages; the use of chemical weapons against Iranian troops and Kurdish civilians during the Iraq-Iran war; the "disappearance" and executions of hundreds of thousands of Iraqis; the large-scale killings that followed the 1991 uprisings in the north and south of Iraq; and the destruction and repression of the Marsh Arabs.

While some commentators have opined that the design of the Special Tribunal is too much like the International Criminal Tribunals for the Former Yugoslavia and Rwanda, this essay argues that the proposed Iraqi Special Tribunal is in fact not international enough to successfully accomplish the goals that have been set for it. As currently structured, the Iraqi Special Tribunal risks being seen by both Iraqis and outsiders as a puppet of the Occupying Power, and as a tool for vengeance by Saddam Hussein's enemies, rather than as the cornerstone of a new judicial system committed to the rule of law.

Why the Perception of Impartiality Matters

The stakes are quite high for the Iraqi Special Tribunal. If viewed as legitimate, the trials conducted by the Tribunal could potentially serve several important functions in the transition to democracy and the rule of law in Iraq.3 First, by pinning prime responsibility on Saddam Hussein and other top Ba'ath figures, and disclosing the way the Iraqi armed forces and security services were compelled to commit war crimes and crimes against humanity against foreign nationals and Iraqi citizens alike, the trials would facilitate national reconciliation. While this would not completely absolve the thousands of underlings of their acts,4 it would make it easier for the northern Kurds and southern Marsh Arabs (Shi'ites) to agree to remain in a unified Iraq and participate in a national government made up of Kurds, Shi'ites, and Sunis. This would also promote a political catharsis in Iraq, enabling the newly elected leaders to distance themselves from the discredited repressive and bellicose policies of the past. Second, the historic record generated from the trials would educate the Iraqi people, who were long misled by Saddam Hussein's propaganda, about the acts of aggression, war crimes and crimes against humanity committed by the Ba'ath regime. Documenting the mass scale of these atrocities with credible evidence by an impartial court would also help justify the American invasion and diminish support for opposition groups which continue to wage a guerilla war against U.S. and other foreign troops and officials stationed in Iraq. Third, the work of the Tribunal would send an important signal that the new Iraq will be based on principles of justice, fairness, human rights and the rule of law. Fourth, the Tribunal would act as a model for how other countries can deal with accountability for past atrocities after emerging from repression.

To achieve these important goals, the Iraqi people, and others in the region and around the world, must be convinced that the Tribunal is fair and impartial. In contrast, trials widely seen as "victor's justice" at the hands of a "puppet court" would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shi'ites, and Sunis. The historic record developed by such trials would forever be questioned. And the trials would transform Saddam Hussein and his cronies into martyrs, fueling violent opposition to the United States and the new Iraqi government, both within and outside of Iraq.

How International Must the Iraqi Tribunal Be to Succeed?

The United States has pushed the idea of an all-Iraqi court with no U.N. involvement, arguing that the Iraqis themselves, as the main victims of the Ba'ath regime, should be entitled to try their own persecutors. Reflecting this, the Statute of the Iraqi Special Tribunal, which was drafted by the United States,5 provides that the judges shall be Iraqi nationals to be selected by the U.S.-appointed Iraqi Governing Council,6 and that expert assistance would be provided by non-Iraqis (read Americans).7 The United States will also be providing the funding of the Tribunal, at a cost of $75 million.8 There are three problems, however, with staffing the Tribunal exclusively or even predominantly with Iraqi judges in this manner.

First, the operating assumption that the Iraqis were the main victims of the Ba'ath regime is simply wrong. It ignores the thousands of Iranians and Kuwaitis, as well as hundreds of Americans and Israelis, who were the victims of the Ba'ath regime's war crimes during the Iraq/Iran war, the Iraqi invasion of Kuwait, and the first Persian Gulf war. Iran, for its part, has indicated its desire that the former Ba'ath rulers be tried in an international tribunal.9 Iran's argument is not without merit. The international dimension of the Iraqi war crimes suggest that they should be addressed in a tribunal that has a strong international flavor.

Second, obtaining qualified and impartial Iraqi judges to staff the fifteen-judge tribunal may be nearly impossible since jurists who served under the old regime are likely to be seen as tainted, while the objectivity of those returning from exile will also be questionable at best.10 Borrowing a page from the tactics of Nazi Germany,11 the Ba'athist Constitution of 1968 weakened and compromised the Iraqi judiciary by ending separation of powers, making civilian courts subservient to the military court system, and creating special courts outside the regular judicial system.12 As a recent U.S. Institute of Peace study concluded, under the Ba'ath regime, the civilian courts "suffered from corruption" and were "powerless to resist political direction from the government and interference from the security service."13

Third, lack of expertise is a daunting problem. Few, if any Iraqi judges have ever participated in trials of the complexity that they would face when prosecuting leadership figures for acts of genocide, crimes against humanity or war crimes. Criminal trials in Iraq traditionally involved only brief proceedings, usually lasting but a few hours. Moreover, the isolation of the Iraqi jurists from the outside world during the rule of the Ba'ath regime restricted access to international jurisprudence, which in the case of international criminal and humanitarian law has expanded geometrically during the past decade. Local Iraqi courts will eventually be needed to try many cases related to past human rights crimes, but the complexity of the trials of the most senior officials will require a stronger international role. While the presence of U.S. advisers assisting the Chambers might help bridge the gap in expertise, it would at the same time make the Tribunal appear to the outside world as a "puppet court."

Consistent with the above observations, two recent studies of the Iraqi judicial system, conducted by the U.S. Department of Justice and the United Nations, describe a legal system riddled with corruption and incompetence.14 The U.N. study concluded that as a product of such "a degraded justice system," Iraqi judges are in the near-term "not capable of rendering fair and effective justice for violations of international humanitarian law and other serious criminal offenses involving the prior regime."15 By comparison, a local tribunal for war crimes in Bosnia was established only in 2003, fully eight years after the end of the fighting and the commencement of international trials at The Hague, and the International Criminal Tribunal for Rwanda has only recently determined that the domestic Rwandan Courts are now capable of fairly prosecuting some of the lower level offenders of the 1994 genocide presently in the Tribunal's custody.16

Since Iraqi judges are in the near-term likely to be seen as unqualified, tainted, biased, or the stooges of the U.S. advisers to the Tribunal, the legitimacy of the Iraqi Special Tribunal can best be achieved by appointing distinguished international jurists with experience in war crimes trials to the Tribunal's bench. In particular, there are several available judges from Muslim countries that have served with distinction on the International Criminal Tribunals for Yugoslavia and Rwanda, who would make ideal candidates for the Iraqi Tribunal. A new mechanism for the selection of such judges is also needed, since the current one, whereby the U.S.-installed Governing Council appoints the judges, has political overtones and detracts from the independence of the judiciary.17

Following the model of the Special Court for Sierra Leone,18 the bench could be a mix of international and Iraqi jurists, with the international judges appointed by the U.N. Secretary-General. Impartiality would be guaranteed so long as the international judges outnumber the national judges on each chamber. At the same time appointing international judges to sit alongside Iraqis should not be seen as abdicating dominion over the Special Tribunal's decisions to outsiders. Instead, the international judges would complement the unique experience and knowledge of Iraqi judges to ensure that the accountability process achieves its desired objectives. The sharing of expertise between international and Iraqi judges will also enhance the capacity of the Iraqi justice system more generally as the Iraqi members of the Special Tribunal subsequently move on to other important positions in the judicial system.19

Can an Internationalized Tribunal Avoid the Pitfalls of the Milosevic Trial?

Given the above analysis which reveals that the Iraqi Tribunal will not be successful if it is seen merely as a "puppet court" of the Occupying Power, it is ironic that this was the very thing that the U.S. authorities set out to establish. In designing a Tribunal to be staffed by Iraqi nationals hand- picked by the U.S.-appointed Governing Council and instructed by American advisers, the United States consciously elevated the interest of U.S. control of the proceedings over that of legitimacy. To understand this decision, one must be familiar with the Bush Administration's dissatisfaction with the conduct of the Milosevic Trial by the International Criminal Tribunal for the former Yugoslavia, which was in its second year when the Iraqi Special Tribunal was being conceived.

Throughout 2003, witness by witness, document by document, the prosecution was slowly constructing a formidable case against Slobodan Milosevic at The Hague. Convinced that exposure to the Milosevic trial would have a cathartic effect on the Serb population, the U.S. Agency for International Development helped underwrite the costs of broadcasting the trial proceedings throughout Serbia. During the trial's first couple of weeks, five channels carried the proceedings live, and more than half of all Serbian households were tuned in.20 At the trial's midpoint in 2003, the trial proceedings were still being shown for up to five hours each day on Station B92, where it receives the network's biggest market share - an average of 27 percent.21

Perhaps the trial broadcasts would have achieved the hoped for effect if it were not for Milosevic's refusal to play by the rules; that is, to let a lawyer defend him in the conventional manner. While his defense strategy is unlikely to win him an acquittal, it has been described by a Balkans expert as "brilliantly cunning, designed to play on Serbia's psychological vulnerabilities and continued Serb resentment of the 1999 NATO bombing."22 To the extent that it is aimed not at the court of law, but the court of public opinion back home in Serbia, Milosevic's strategy is unquestionably paying off. His approval rating in Serbia doubled during the first weeks of his trial.23 A recent poll found that thirty-nine percent of the Serb population rated Milosevic's trial performance "superior," while less than twenty-five percent felt that he was getting a fair trial, and only thirty-three percent thought that he was actually responsible for war crimes.24 Milosevic has gone from the most reviled individual in Serbia to number four on the list of most admired Serbs, and, in December 2003, Milosevic easily won a seat in the Serb parliament in a nation-wide election.25 "You really have two trials going on at the same time, one in the court and the other in the forum of public opinion," observes Judith Armatta, an American lawyer who monitors the trial for the coalition for International Justice, a non-profit organization that supports international efforts to bring war criminals to justice. "You may get two very different results."26

This is just what the United States desires most to avoid with respect to the trial of Saddam Hussein and his cronies. The thought of Saddam Hussein appearing on the nightly news throughout the Middle East, riling against the illegal U.S. invasion of Iraq, insisting that the United States was complicit in Iraqi war crimes against Iran, and encouraging his followers to commit acts of violence against the United States, was obviously foremost in the minds of the U.S. drafters of the Statute of the Iraqi Special Tribunal.27 But the faults of the Milosevic trial were not inherent in its international character. Rather, they stem exclusively from an unfortunate decision of the Trial Chamber to permit Milosevic to represent himself at trial instead of requiring that he try his case through a lawyer who is acceptable to the Tribunal.

As a result of this misguided decision, Milosevic has been able to generate the illusion that he was a solitary individual pitted against an army of foreign lawyers and investigators. Day after day he sits alone in the courtroom behind a row of conspicuously empty desks that would ordinarily be occupied by the defense team. In reality, Milosevic has had a squadron of legal counsel assisting him from behind the scenes, including some of the world's most distinguished trial attorneys. Under their direction, lawyers and supporters of Milosevic dig up files and background on witnesses who are about to appear in court, enabling Milosevic to become the Serb "Perry Mason."28

An even more significant ramification of the Yugoslavia Tribunal's ruling is that it has given Milosevic the chance to make unfettered speeches throughout the trial. In contrast, a Defendant is ordinarily able to address the court only when he takes the stand to give testimony during the Defense's case-in-chief, and in the usual case, the Defendant is limited to giving evidence that is relevant to the charges, and he is subject to cross examination by the prosecution. By acting as his own counsel, Milosevic was able to begin each stage of the trial with hours of opening arguments, which have included Hollywood-quality video and slide-show presentations showing the destruction wrought by the 1999 NATO bombing campaign.29

Bending over backward to maintain the appearance of fairness, the Tribunal's judges have allowed Milosevic to treat the witnesses, prosecutors, and themselves in a manner that would earn ordinary defense counsel expulsion from the courtroom. In addition to regularly making disparaging remarks about the court and repeatedly brow beating witnesses, Milosevic pontificates at length during cross examination of every prosecution witnesses.30 Summing up the impact of Milosevic's trial performance, one former employee of the Tribunal has stated: "You can't help falling under his spell. He's very sharp and he's funny. It's sick, I know, given what he's there for, but he's so cynical and quick that he's had the courtroom in fits of laughter at times."31

Although most countries permit a defendant to decline appointed counsel and represent himself if he is determined to be of sound mind, the right to argue one's own case (rather than to act through a lawyer) is not a fundamental right enshrined in international law. Thus, in designing the Special Tribunal for Iraq, the United States could have avoided the pitfalls of the Milosevic fiasco, by stipulating that the defendants must act through counsel acceptable to the Tribunal, without sacrificing the legitimacy of the proceedings, which can best be ensured by internationalizing the bench.



1Professor of Law and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law, and President of the American National Section of the AIDP. The author previously served as Attorney Adviser for U.N. Affairs at the U.S. Department of State.
2Statute of the Iraqi Special Tribunal, Issued December 10, 2003 [hereinafter IST].
3For a detailed discussion of the roles of justice in the aftermath of conflict, see PAUL R. WILLIAMS AND MICHAEL P. SCHARF, PEACE WITH JUSTICE? (Rowman & Littleield, 2002) at 11-23.
4It is estimated that there were over 50,000 "full members" of the Ba'ath party in Iraq. United States Institute of Peace, Special Report: Establishing the Rule of Law in Iraq, April 2003, at 8.
5See Associated Press, Iraq to Create War Crimes Tribunal in Coming Days, . (reporting that the Statute for the Iraqi Special Tribunal that was adopted by the U.S.-appointed Governing Council in December 2003 is nearly identical to the draft provided by the United States six months earlier).
6See IST, Art. 28. Article 4(d) of the Statute provides that the "Governing Council, if it deems necessary, can appoint non-Iraqi judges" (emphasis added), but this clause is unlikely to ensure sufficient internationalization of the Tribunal.
7See IST, Art. 6(b) and Art. 7(n).
8See Bringing the Old Regime to Trial, 369 THE ECONOMIST, December 13, 2003, at 41.
9Radio Netherlands, Saddam Trial Will Take Time, December 16, 2003.
10The Iraqi Governing Council has been vetting all present Iraqi judges for their integrity and for their past membership in the Ba'ath party. But this has not been seen as a serious process. The records of over half of the Iraqi judges have so far been examined, and only one in five has been disqualified, despite outside evidence that nearly all were significantly tainted or biased. See Bringing the Old Regime to Trial, 369 THE ECONOMIST, December 13, 2003, at 41.
11Ranking Nazi German judges and prosecutors were convicted at Nuremberg of willingly participating in a justice system that perverted justice. See U.S. v. Joseph Altstoetter, et al. (The Justice Case), summarized in JORDAN J. PAUST, M. CHERIF BASSIOUNI, AND MICHAEL P. SCHARF, ET. AL, INTERNATIONAL CRIMINAL LAW (1996) at 243-254.
12United States Institute of Peace, Special Report: Establishing the Rule of Law in Iraq, April 2003, at 5.
13Id. at 6.
14See Associated Press, Iraq to Create War Crimes Tribunal in Coming Days.
15See Associated Press, Iraq to Create War Crimes Tribunal in Coming Days.
16CBSNews.com, Debate Rages Over Saddam Trial, December 16, 2003, .
17M. Cherif Bassiouni, Ace in the Hole, CHICAGO TRIBUNE ONLINE EDITION, December 21, 2003 .
18Michael P. Scharf, The Special Court for Sierra Leone, The American Society of International Law, ASIL Insights, available at http://www.asil.org/insights/insight53.htm (October 2000).
19This point was made by Human Rights Watch in its Memorandum to the Iraqi Governing Council on the Statute of the Iraqi Special Tribunal, December 2003,
20THE NEW YORKER, May 27, 2002.
21Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW 915, 930n.83 (2003), citing Marc Champion, Court of Opinion: With Hague Case, Defiant Milosevic Wins at Home, WALL STREET JOURNAL, January 10, 2003, at A-1.
22Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW 915, 930n.83, citing Dusko Doder, Book Review of Slobodan Milosevic and the Destruction of Yugoslavia by Louis Sell, THE NATION, May 27, 2002, at 25.
23Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW 915, 930n.83, citing Andre Purvis, Star Power in Serbia; Slobodan Milosevic's Performance at his War Crimes Trial has Won Him Increased Popularity at Home, TIME, September 30, 2002, at 46.
24Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW 915, 930n.83, citing Joseph Lelyveld, The Defendant; Slobodan Milosevic's Trial, and the Debate Surrounding International Courts, THE NEW YORKER, May 27, 2002, at 82; Transcript, CNN International: Q&A Early Afternoon, February 12, 2002.
25Dosan Stojanovic, Milosevic Wins Serb Parliament Seat, THE PLAIN DEALER (Cleveland), December 30, 2003.
26Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW 915, 930n.83, citing Marc Champion, Court of Opinion: With Hague Case, Defiant Milosevic Wins at Home, WALL STREET JOURNAL, January 10, 2003, at A-1.
27The noted French defense attorney, Jacques Verges, who has been hired to defend Saddam Hussein's aide Tariq Aziz, has previewed a defense strategy based on proving that the United States was complicit in the Iraqi invasion of Iran and the use of chemical weapons in that conflict. According to Verges, "In the course of a trial, the fundamental element will be 'You treat me like a pariah, but I was your friend. What we did, we did together. I fired the bullet, but you're the one who gave me the gun. You even pointed out the enemy.'" PRNewswire, Administration Officials Say Possible Iraqi Trial of Saddam Hussein Won't Happen Until There is a Sovereign Government; Trying Him Before Then Would Be Handing Him Over to a Rabble, Says Official, December 21, 2003
28Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW at 918.
29Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW at 919.
30Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW at 919.
31Michael P. Scharf, The Legacy of the Milosevic Trial, 37 NEW ENGLAND LAW REVIEW 915, 930n.83, citing Marc Champion, Court of Opinion: With Hague Case, Defiant Milosevic Wins at Home, WALL STREET JOURNAL, January 10, 2003, at A-1.



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