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| Volume XI, Summer 2004, Number 2 |
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| ABSTRACT: Victims' Justice, Victors' Justice: Iraq's Flawed Tribunal |
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| Beth K. Dougherty |
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Dr. Dougherty is associate professor and Manger Family professor of International Relations at Beloit College, Beloit, Wisconsin.
The capture of Saddam Hussein in December 2003 focused attention on the opportunity to hold his regime accountable for the egregious human-rights abuses it perpetrated against the Iraqi people. The Iraq Special Tribunal (IST) will try Iraqis accused of international and Iraqi crimes, including genocide and war crimes, committed during the 35 years of Baathist rule, in Iraq or in neighboring countries. The IST however suffers from grave weaknesses that threaten its ability to conduct fair, impartial, independent and legitimate trials. Its statute fails to incorporate lessons learned from the operation of other tribunals such as those for the former Yugoslavia, Rwanda and Sierra Leone. There are six critical issues to be considered: personal and temporal jurisdiction, the qualifications of court personnel, the penalties to be imposed, the role of the international community and the seat of the court. The IST's sweeping jurisdiction and the stated intent to try hundreds of cases will overwhelm its capacity to conduct trials up to international standards in a reasonable period of time. The qualifications for critical positions at the IST are not as high as those specified by other tribunals. The failure to abjure the death penalty will restrict the support of major actors including the United Nations and the European Union. As a purely domestic court, the IST requires a level of expertise and experience Iraq's shattered judicial system is not equipped to provide. Yet international participation is restricted to the status of advisers and observers, contrary to the prominent role of internationals at the other tribunals. The IST's statute also neglects to permit the court to move out of Iraq should the security situation necessitate it. Without full international participation the court risks the appearance of victims' justice, especially as the statute does not rule out the appointment of individuals who were jailed or tortured by Saddam's regime. Finally, the IST's integrity is threatened by the extensve American involvement in its establishment, funding and training programs for personnel. The United States holds most of the highest-ranking officials likely to be indicted, as well as tons of documents. This raises the specter of victors' justice.
The prosecution of Saddam's regime is too important to be risked on such a flawed institution. The IST's statute should be amended: the full involvement of internationals should be permitted; qualifications for judges and prosecutors should be tightened; the court's jurisdiction should be circumscribed to apply only to those most responsible for the abuses; the death penalty should be eliminated; and the court should be able to relocate if security deteriorates in Iraq. Other recommendations include the establishment of a truth and reconciliation commission to handle the cases of lesser-ranking persons, and the development of a robust witness and victims' protection program.
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