Former Iraqi president Saddam Hussein is now in the dock. According to right groups, approximately 300,000 people remain “missing” after his 34-year rule. Mass disappearances, torture, arbitrary detentions, extra judicial killings, and the use of chemical weapons have been widely documented. |
|
The trials of members of Iraq’s former Ba’athist government have been branded “an unprecedented opportunity to provide some measure of truth and justice”, according to the NGO, Human rights Watch (HRW).
The first such trial began in October 2005, representing the hundreds of thousands of victims of grave human rights violations that occurred at the hands of the Iraqi state between 1979 and 2003..
No fewer than 300,000 people remain “missing” after the 34-year rule of former President Saddam Hussein, according to rights groups. Mass disappearances, torture, arbitrary detentions, extrajudicial killings, and the use of chemical weapons have been widely documented, along with reports of the destruction of thousands of villages, mass displacement and ethnic cleansing.
Iraqis are keen on retribution. A countrywide survey released two years ago found strong support across ethnic and regional lines for transparent public trials and even the death penalty. These trials – being held on Iraqi soil and controlled by Iraqis - will try Hussein, his family, and his closest followers.
Iraqis emphatically rejected the prospect of trials dominated by either the international community or other foreign states, the International Centre for Transitional Justice (ICTJ) and the Human Rights Centre at the University of California reported in their findings. There was mixed support for international “assistance”.
“The anger and disappointment at the failure of the international community, particularly the UN, to effectively protect Iraqis, may explain the negative attitude toward international involvement in, for example, the prosecution,” said the ICTJ. Iraqi lawyers and judges had also expressed the need to restore the dignity of the domestic legal system and national pride.
As early as 2003, however, two separate assessments conducted by both the US-led Coalition Provisional Authority (CPA) and the UN High Commissioner for Human Rights concluded that the Iraqi judicial system did not have the capacity to conduct the necessary trials.
“The concern was that the Iraqi judicial system, after 30 or 40 years of corruption, oppression and nepotism, would struggle to mount trials on such major issues as crimes against humanity, war crimes and genocide,” explained Hanny Megally, director of the Middle East and North Africa Programe at the ICTJ.
Legal experts and rights groups advocated the establishment of an Iraqi-led international commission of experts to review the country’s needs, and propose a “comprehensive strategy” for addressing its past. However, amid accusations that the US wanted to maintain sole “control” over the judicial process, the CPA insisted on an Iraqi-led tribunal without establishing any process of formal consultation with victims, according to HRW.
In August 2005, the Supreme Iraqi Criminal Tribunal (formerly called the Iraqi Special Tribunal) - currently trying Hussein and seven associates for the alleged executions and disappearance of over 140 individuals by security forces in the town of al-Dujail in 1982 - was born as a result.
Problems at the Iraqi tribunal
A dozen separate trials are expected to be held by the tribunal, each focusing on separate incidences, such as the gassing of Kurds in Halabja in 1988, or the 1991 repression of the Shi’ite uprising. Despite the fact that under Iraqi law, those found guilty should face the death penalty within 30 days, assurances have been made that Hussein will be tried on several different counts. “They have said there is no danger that if convicted in this first trial he will be executed,” said Megally.While the tribunal is being held in Arabic, within Iraq, and before television cameras, thereby guaranteeing accessibility to the Iraqi population, its statute and procedures have been the subject of widespread criticism from legal and rights experts since its inception.
The tribunal’s very establishment by the US, which necessitated making alterations to domestic Iraqi law to accommodate the crimes of genocide, war crimes and crimes against humanity, may contravene international humanitarian law, according to the ICTJ.
“Essentially the court was set up by an occupation force which already is questionable under the laws of war. It was then legitimated by the governing body later, but it would have been better to wait for the Iraqi Governing Council to create it from scratch,” said ICTJ president, Juan Mendez.
Furthermore, criminal procedure law in Iraq and the tribunal’s rules of evidence and procedure do not provide sufficient safeguards to ensure fair trials, according to rights groups. “Of concern is the fact that many positive elements borrowed from international practice that were present in the original statute have since been stripped away,” the ICTJ reported.
Aside from security concerns, by October 2005 five tribunal employees had been killed, as well as a defence lawyer.
Meanwhile, rights groups’ complaints have included the following: the language of some of the lesser offences is vague and open to politicised interpretation; the standard of proof required for a conviction is considerably lower than the internationally recognised “beyond reasonable doubt”; the role for international judges has been significantly reduced.
They add that defendants have insufficient access to lawyers and facilities to prepare a defence; access of the defence team to documents and evidence is unequal; judicial personnel are susceptible to dismissal at any time; and that parliamentarians have requested that judges be dismissed.
Ra’ad Juhi, the tribunal’s chief investigator, has defended the tribunal’s fair standards. “We are adhering to standards of international law in compliance with the sovereign law of Iraq and are working hard to keep its quality and fairness based on international human rights law,” he said.
But based on its observation of trial proceedings between October and December 2005, HRW said it had “real concerns” about the capacity of Defence Office lawyers to effectively defend their clients, in particular given their lack of training.
Political interference
“We are independent from any committee or government because we are the law. For sure we would not put a person in a judge chair without being sure of his capacity and honour,” said a prosecutor at the tribunal, Khalid Muhammad.
Nevertheless, direct and indirect political interference in the proceedings has been ongoing, say some rights groups. This has been facilitated by revisions to the tribunal statute, which, for example, require that no member of its staff has ever been a member of the Ba’ath party, a standard far higher than those stipulated by ongoing de-Ba’athification mechanisms.
Paradoxically, membership of the party was a prerequisite for admission to judicial training.
According to Mendez, the tribunal’s vetting procedures are being used as a tool in the ongoing power struggle in Iraq. “We are in favour of people who participated in abuses being excluded from participating in a reconstituted set of democratic institutions, but it cannot be done as a witchhunt, chasing after people for the sole ‘crime’ of having had to sign a membership or the like,” he said.
“Several politicians see the trials as a means to attain political advantage; the government …has made repeated prejudicial comments that call the court’s independence into question,” the ICTJ noted in a recent report.
The tribunal’s heavy financial dependence on the US has also raised many eyebrows. The 2005 budget for supporting the tribunal’s investigations and proceedings – which is taken from a unit in the US embassy in Baghdad - was US $128m, in sharp contrast to the US $15m from the Iraqi general budget.
“The original suggestion by many human rights organisations that a hybrid court be set up that would exercise Iraqi jurisdiction, but with major support from the international community outside Iraq, would have been a better choice,” Mendez said.
Victims’ rights
Aside from a desire for accountability, the ICTJ/Human Rights Centre survey also found broad support for an official process of truth seeking. There was also widespread support for both material and symbolic compensation for losses: “Most felt that a programme of compensation and rehabilitation was necessary if Iraqi society was going to be able to move beyond the legacy of Saddam Hussein,” said a report.
However, the rights of the Iraq’s victims have largely been ignored by both the international community and the authorities, according to the International Commission of Jurists (ICJ).
Iraqi men searching for the “missing”. By international law, victims have a right to seek and obtain information about past violations of human rights, including receiving the bodies of executed or “disappeared” loved ones.
Credit:Mike White/IRIN
|
|
Again, the statute’s rules of procedure fall short of international standards, failing to ensure victims’ rights to a remedy and compensation, despite the fact that they are guaranteed by international legal instruments such as the International Covenant on Civil and Political Rights, which Iraq ratified in 1971.
In international law, victims not only have a right not to financial assistance, but also to rehabilitation measures, such as medical and psychological care, as well as legal and social services. “These aspects of the right to reparation are extremely important in the Iraqi context, as they would finally mean the official recognition of the victims’ suffering after more than twenty years of silence and repression,” said the ICJ in a recent report.
Furthermore, victims have a right to seek and obtain information about past violations of human rights, including receiving the bodies of executed or “disappeared” loved ones.
Criminal prosecutions and truth-telling mechanisms are both obligations of a state in transitional justice, according to Mendez. “I think they can, and should, work together harmoniously,” he said. “It is important that the courts be complemented by an investigation that is less formal and goes to a wider range of issues, patterns and episodes.”
In August 2005, Laith Kubba, spokesman for the then interim Prime Minister, Ibrahim al-Jafari, announced that the Ministerial Council had approved a draft law to establish a commission “to take care of the martyr’s families”, which would be forwarded to the National Assembly.
As yet no further information on the law, or any form of truth and reconciliation commission, has been made available to the public, according to Isabelle Scherer, officer for the Middle East and North Africa with the ICJ. At the same time, discussion about such a commission “can only become relevant once the political climate and leadership are mature enough for this mechanism,” she said. “This prerequisite is currently non-existent.”
Uncertainty ahead
The manner in which justice is delivered by the Iraqi tribunal and other mechanisms will set a precedent for respect for the rule of law not just in Iraq, but perhaps the entire region, say certain rights groups.
For the time being however, many questions about Iraq’s so-called transition and the political will to obtain justice remain unanswered. When are the middlemen who perpetrated atrocities going to be tried? How can the historical record be set straight in the current security climate? How can we speak of justice in Iraq with ongoing human rights abuses being leveled at insurgents, criminals, Iraqi security elements and occupying forces alike? Notably, the Iraqi tribunal has no jurisdiction over non-Iraqi nationals, including the coalition forces.
Given the current climate in Iraq, and the uncertainties about the ongoing trial of Saddam Hussein, the prospects for justice remain ever more uncertain. “The longer the trial goes on, the harder it is to make a positive judgment,” said Mendez. “But the circumstances in Iraq require that we withhold judgment until we see the result.”
[ENDS]
|