Yesterday President Bush promised the people of Iraq that Saddam Hussein would “now face the justice he denied to millions.” In the context of ongoing reconstruction efforts, putting Saddam on trial offers new and important opportunities. For the Iraqis, it will allow them to shed light on decades of brutal rule and could provide a common unifying process to counter divisive rivalries. For the U.S, the trials could help ease tensions and foster broader international participation in an effort to take the American face off the occupation.
The dearth of details provided by the administration about how Saddam will actually be brought to justice, however, reveals the enormity and difficulty of that task. Prosecutions for genocide, war crimes, and crimes against humanity are legally complex and fraught with political land mines. Similar questions and challenges have plagued efforts to prosecute war criminals over the past decade in the Balkans, Rwanda, Sierra Leone, Cambodia and East Timor.
In Iraq, the basis for beginning the work has already been laid. Last week, the Iraqi Governing Council established a Special Tribunal mandated to prosecute officials from the former regime for crimes committed since 1968. The law was drafted in close consultation with U.S. occupation authorities and was approved by Washington. Within that law there is a provision that requires the presence of international experts to assist Iraqi jurists. It also allows, but doesn’t require, the Governing Council to appoint non-Iraqis to the five-judge panel responsible for trying cases.
The challenge for the U.S. is to give the tribunal the best chance for succeeding without having its fingerprints all over it. Several thorny issues will present the Bush administration with a host of complex challenges and important decisions in the upcoming weeks:
• Legitimacy. The administration should immediately seek an unambiguous resolution from the United Nations Security Council that recognizes the new Iraqi court as independent of the U.S. occupation. Failure to do so would leave the court vulnerable to charges of being a puppet of the Coalition Provisional Authority. The resolution should also call upon all member-states to cooperate under Chapter VII authority, thus easing the efforts of Iraqi authorities to negotiate timely bilateral agreements regarding extradition, information-sharing, and witness protection. However, U.S. negotiators must ensure that discussion of the resolution does not disintegrate into slow and unproductive exercise in micromanaging.
• Location. International ad hoc tribunals for the former Yugoslavia and Rwanda were located away from the scenes of the crime due to security concerns. Saddam’s trial could offer a target for violent insurgents, as well as provoke attempts to free him from incarceration. One option is to prosecute Saddam in Iraq while imprisoning him abroad during and after the proceedings. If this is under active consideration, the administration should already be identifying and approaching respected third-party states interested in taking on this responsibility. Alternatively, an agreement could be negotiated with the Yugoslav tribunal to put him in a detention cell next to Slobodan Milosevic at The Hague, sending a signal that Saddam’s crimes rank with those of the world’s worst offenders.
• Legal capacity. Experts agree that the current state of the Iraqi judicial system is in tatters and not capable of conducting a clean and proper trial. Financial and technical assistance is sorely needed. The Coalition should take advantage of the flexibility in the new Iraqi tribunal law and assume the lead in recruiting international assistance from around the world – but without monopolizing the effort. This could be achieved by including explicit language in a new Security Council resolution that calls upon member-states to coordinate their contributions through the new United Nations Special Representative of the Secretary-General.
• Speed. Time is of the essence to capitalize on positive momentum and deliver justice for the Iraq people. Reasonable demands for robust international involvement must not trump the need to show timely progress. Many have argued for explicitly including the appointment of foreign judges and attorneys in the Iraqi tribunal. Despite the merits of going this route, past experience of the U.N. demonstrates that the traditional process of coming up with and naming qualified international candidates is painfully slow. As a fast-track option, the U.N. Secretary-General should immediately provide a list of candidates with adequate experience available on short-notice to serve as judges.
• Public Information. Publicizing the day to day progress of the trials is essential for allowing the Iraqis to feel involved in the process and invested in the eventual verdict. However, this challenge will present the Coalition with significant difficulties. Already distrusted in Iraq, U.S. radio and television programs will not be adequate. The CPA should immediately move to internationalize public information operations to include other countries, including voices from Muslim countries, for the upcoming trials. Failure to do so would forfeit coverage of the trials to anti-Coalition media outfits that could promote suspicions and sympathy for Saddam.
The administration is right to proceed with caution, but should also seize the moment. The days ahead will be filled with intense debate about the scope and shape of Saddam’s trial. As the first major high-profile public act of a new Iraqi authority, the swift, credible, and fair prosecution of Saddam by an Iraqi Special Tribunal could give governance in Iraq a good name.
Michael Pan is a senior analyst at the Center for American Progress and a former political adviser to the prosecutor of the Special Court for Sierra Leone.
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