Justice in Iraq 

Bringing the old regime to trial
Dec 11th 2003 
From The Economist print edition

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Why the plan for an Iraqi tribunal worries human-rights campaigners

IT SHOULD be cause for satisfaction, even catharsis, if not celebration. A special tribunal is being set up to try top people in Saddam Hussein's regime for genocide, torture, mass slaughter, and other atrocities. Human Rights Watch, a respected international lobby group, reckons that at least 290,000 Iraqis were murdered in the last two decades of Mr Hussein's rule; that figure excludes those—probably many more—who died as a result of wars started by Mr Hussein. Nor does it include the millions of Iraqis who suffered in other ways. Bringing the chief perpetrators to book and creating a new system of law must surely be applauded. 
Not yet. The trouble is over who should oversee a new judicial process. This week Iraq's American-appointed Governing Council announced that a tribunal would be set up to try the miscreants—and that it would be run entirely by Iraqis. International human-rights groups, the United Nations, and even Britain, America's main partner in Iraq's ruling Coalition Provisional Authority (CPA), are worried. They fear that the tribunal may fail to comply with international standards of fairness, in particular by waiving a right of habeas corpus. It may seek to impose the death penalty on the worst culprits. Most worryingly and self-defeatingly, it risks being seen by both Iraqis and outsiders as a tool for vengeance rather than as the beacon of a new, clean and impartial judiciary.
Most tribunals set up over the past decade—to try war crimes and crimes against humanity in such troubled places as Rwanda, the former Yugoslavia, Sierra Leone, and, most recently, Cambodia—are under the auspices of the UN and have at least a strong component of international judges. All are conducted in accordance with international law. None permits the death penalty. But the planned Iraqi court is being set up, with America's encouragement, without reference to the UN. It will be run entirely by Iraqi judges, mainly under Iraqi criminal law and procedure, which often clash with international law. Once the CPA hands over formal sovereignty to a transitional government in July, the new rulers may insist that the tribunal be empowered to re-impose the death penalty the Americans suspended after toppling Mr Hussein in April.
The British, in particular, were alarmed by the plans for the court, and quietly urged Bertrand Ramcharan, the UN's acting High Commissioner for Human Rights, to write last week to Paul Bremer, the American proconsul who heads the CPA, to mark his concern over the draft plan's apparent incompatibility with international humanitarian law. Mr Ramcharan also suggested that international judges, prosecutors and investigators with experience in human-rights cases should be more involved. The Governing Council's draft mentioned international lawyers only as possible advisers.
Thanks to Mr Ramcharan's intervention, the council made some last-minute amendments. Details of the court's statutes have yet to be published. But the council is believed to have decided, for example, to let international lawyers be brought in as investigators, though not as judges. And defendants are to have a right to legal representation and to an appeal. But no explicit ban on capital punishment is included in the tribunal's statutes. Indeed, some council members have hinted that it could well be resuscitated and imposed on Mr Hussein, in absentia if necessary, and on his closest aides. This would make it virtually impossible for Britain and any other European Union country to hand over prisoners to the tribunal.
“It will be a noble experiment,” says Adnan Pachachi, a former foreign minister who is in the Governing Council. “It shows we want to apply the rule of law and not let the desire for revenge take over.” Human-rights groups are not convinced. Richard Dicker, legal director of Human Rights Watch, worries that “this could degenerate into political show trials.”

Motes and beams
In any event, finding qualified and impartial Iraqi judges and lawyers to man the proposed five-judge tribunal will be hard. Many of those who worked under the old regime are likely to be seen as tainted, while the objectivity of those returning from exile, many of whom were victims of Mr Hussein, may be queried too. The CPA is vetting all present Iraqi judges for their integrity and for their past membership of Mr Hussein's Baath Party. The records of half of them have so far been examined; only one in five has been disqualified.
Hitherto, the Americans have supported UN-sponsored war-crimes tribunals. But in Iraq, from the outset, they have promoted the idea of an all-Iraqi court with no UN involvement, arguing that the Iraqis themselves, as the main victims of Mr Hussein, were entitled to try their own persecutors. They have even offered $75m to support the court. But many suspect that the Americans' opposition to an international tribunal for Iraq is part of their campaign against the UN's International Criminal Court, not because of a genuine change of opinion. In the case of the former Yugoslavia, they certainly took the opposite view, even threatening to cut loans to a reforming Serbian government if it did not hand over Slobodan Milosevic to the UN's war-crimes tribunal in The Hague. 
Of the 7,000 or so people still being held by coalition forces in Iraq, only around 100 are classified as prisoners of war: that is, uniformed soldiers captured on the battlefield. Under international law, they must either be freed or brought before a military court when hostilities have officially ceased. Around 2,200 are “criminal detainees”, looters and the like, who will eventually be handed over to the Iraqi authorities for trial in normal Iraqi courts. The remaining 4,800-odd are so-called “security internees”: suspected insurgents, al-Qaeda terrorists, would-be suicide bombers, and anyone else deemed to pose a threat to the coalition's forces or to Iraqis in general. They include 101 “high-value detainees” suspected of the worst atrocities under Mr Hussein, including 38 of the most wanted 55 people (two of whom have been killed) in the Americans' “deck of cards”.
Unlike America's 660 prisoners in Guantánamo Bay, all its security internees in Iraq are being held in accordance with the Geneva Conventions. Though they have not been charged and have no access to a lawyer, their cases must be—and are being—subject to regular review. If no longer considered a danger, they may be freed or, if suspected of a crime, switched to the criminal-detainee category to await trial in an ordinary court. But those still deemed a security threat can continue to be held by the “occupying power”, namely the CPA, for as long as the occupation continues. 
What will happen to the detainees come July 1st next year, when the Iraqis are supposed to take over? No one is sure. Most of the mass murderers and other gross violators of human rights will probably end up before the new special tribunal, which is expected to start operating next year. Others may be freed. But the Americans will probably ask to keep those thought likely to provide useful information for its war on terror. So they could then fall into the same legal limbo as the prisoners in Guantánamo Bay.