Global Policy Forum

By Anthony Dworkin

From Rwanda to Iraq, Serbia to Sierra Leone, the search for "transitional justice" in post-conflict states involves difficult choices. Anthony Dworkin of the Crimes of War Project maps the current stage of a long-term process.

"No reason to waste time," said the spokesman for Iraq's new prime minister, announcing that the first trial of Saddam Hussein would begin within two months. "The position of the government is to speed up the trial," he added pointedly.

The comments may have served to reassure some Iraqis that their government, struggling to contain a surge of violence, was at least able to offer the satisfaction of a public accounting for their former leader's worst acts of brutality. But they were evidently not welcome to the supposedly independent investigative judges of the Iraqi Special Tribunal, the body that will hear the cases against Saddam and his co-defendants. They rushed out a press release to affirm that there was "no exact schedule" for Saddam's trial and that the final decision was up to the judges alone.

This skirmish over the political independence of the court is only one of the reasons why the Iraqi war-crimes tribunal has been greeted with some skepticism by many of those generally sympathetic to the cause of "transitional justice" – the idea that legal accountability for atrocities committed by an outgoing regime can help to heal divided societies. Human-rights groups have complained about the tribunal's failure to require proof of guilt beyond a reasonable doubt, and about the fact that Saddam and other defendants were not given a lawyer before their initial arraignment. Most significantly, many outsiders are horrified that the tribunal has the power to impose the death penalty – a fact that has prevented all European countries as well as the United Nations from cooperating with any investigation or prosecution.

How worried should we be by these deficiencies? Clearly the Iraqi Special Tribunal is not a model of the highest standards of international due process. Yet it should be evident by now, twelve years after the idea of international justice was revived from decades of neglect to be applied to the abundant crimes of the Balkan wars, that there are rarely simple answers in the aftermath of mass atrocity.

The notion that rendering justice for such offences is a legitimate international concern is here to stay – indeed it is institutionalised in the International Criminal Court (ICC), now up and running in The Hague. But the way that justice is applied remains a matter of frequent compromise and ambiguity.

"Special tribunals": lessons from ex-Yugoslavia, Rwanda and Sierra Leone

A recurrent tension is that between international standards of justice and local credibility or "ownership" of the proceedings. The first two in the modern wave of war-crimes tribunals – set up to prosecute crimes in the former Yugoslavia and Rwanda – were based outside the countries concerned and staffed entirely by international (i.e. non-Yugoslav or Rwandan) officials. There were good reasons why this should have been so – the Bosnian war was still continuing, and the Rwandan justice system had been laid waste by the country's genocide.

However it's now widely accepted that in each case there was a cost. Whatever the tribunals' achievements in providing justice to victims and removing the worst offenders from public life, they appear to have had a limited impact on Serbian and Rwandan opinion. In Rwanda there have been regular complaints that the most culpable figures tried by the international tribunal in Arusha, Tanzania can only be sentenced to life imprisonment, while lower-level killers left to Rwandan courts face death. In Serbia, it seems that the recent television airing of a videotape showing the execution by Serbian paramilitaries of Bosnian Muslim prisoners from Srebrenica may have done more to force acknowledgement of the crimes committed in Bosnia than several years of testimony in The Hague.

The lessons of the Rwandan tribunal in particular were by all accounts instrumental in determining the shape of the war-crimes court set up in Sierra Leone in 2002 – a so-called "hybrid" body with Sierra Leonean and international judges sitting together in the country's capital city, Freetown. The Sierra Leone Special Court represents an attractive model for transitional justice but with the advantage of comparatively propitious circumstances: a war that had ended, a government that supported the idea of accountability, and a judicial system that – though weak – was able to provide some officials to participate in the court's operations.

Nevertheless the Special Court has suffered some setbacks – notably in its inability to gain access to the former Liberian president, Charles Taylor, who was given asylum in Nigeria when he left power in 2003. Taylor was offered refuge with the tacit consent of Britain and the United States in a deal to prevent a bloody battle in the Liberian capital Monrovia between his supporters and attacking rebels – a reminder that balancing the objectives of peace and justice is not always as straightforward as some rights advocates make out.

The ICC: Congo and Darfur

Meanwhile, the landscape of international justice has been transformed by the ICC, established in July 2002. This permanent court represents a move away from the ad hoc nature of earlier tribunals created to respond to individual conflicts: international criminal justice is now an established part of our global order.

The ICC is built around a vision of international justice as a last resort. The court is "complementary" to national judicial systems: it steps in when domestic courts are unable or unwilling to deliver genuine justice. The first two situations it has begun to investigate are the Democratic Republic of Congo and northern Uganda, operating in both cases with the endorsement of the respective country's government. These investigations are likely in different ways to test the question of how far the ICC's prosecutor should take political considerations into account.

In Congo, leaders of some groups that undoubtedly committed atrocities during the country's cataclysmic war of 1998-2003 are now partners in a fragile coalition government. In Uganda, a group of non-governmental organisations have lobbied the court not to take steps that would derail a possible peace agreement with the Lord's Resistance Army.

In a joint statement with some of these groups, the court's chief prosecutor Luis Moreno Ocampo agreed recently to try to "integrate the dialogue for peace, the ICC and the processes of traditional justice and reconciliation." The court's statute gives the prosecutor discretion to judge when a local wish not to prosecute is based on genuine considerations of national interest (as opposed to partiality or weakness) but there is already some muttering among international justice advocates that Ocampo is tacking too far in a political direction.

Most recently, the ICC has taken on what may be its biggest challenge and most high-profile investigation, into possible crimes in the Sudanese region of Darfur. Darfur was referred to the court by the United Nations Security Council over the protests of the Sudanese government, which is not likely to cooperate with the investigation.

The Security Council has set in motion a judicial process without taking any significant steps to halt the conflict, and it remains unclear whether it will do anything to compel Sudan to allow investigators access to gather evidence and speak to potential witnesses. Persuading the Sudanese government to hand over potential defendants will be a bigger challenge still. However, the example of the Yugoslav tribunal – which after twelve years of operation is at last gaining custody of prominent suspects with the help of the Serbian government – shows that international justice can be a very long game.

Saddam's trial, Iraq's options

What then of Saddam Hussein and the other Iraqi "regime criminals"? Initially it was hoped by some coalition officials that the Iraqi tribunal would emerge as a hybrid body with international judges and advisors involved alongside an Iraqi majority. However it has instead taken shape as a purely Iraqi body, albeit with substantial American advice and support.

This development apparently reflects the desire of the Iraqis involved to assert their own authority and competence (indeed there have been recent suggestions that the country's government may introduce legislation to re-establish the legal basis of the tribunal, removing the taint of occupation that attached to its original statute). Similarly, trials will be conducted according to some Iraqi – rather than international – rules of procedure and with the death penalty available in keeping with Iraqi traditions.

Nevertheless it seems too early to condemn the proceedings. The trend in international justice has been to favour local solutions wherever possible, and if the trials turn out to be well-run and fundamentally impartial they could help establish the principle of the rule of law in Iraq. Conversely, anything that smacked of a show trial would probably reinforce the sense of exclusion among Iraqi Sunni Muslims.

The release of video footage showing Saddam being questioned about a series of executions in 1982 – the incident that will provide the tribunal's first case – suggests that his first appearance as a defendant may indeed be imminent. Supporters of transitional justice should recognise the advantages of a tribunal that has credibility with Iraq's population while looking to see that a reasonable threshold of due process is met.

This article originally appeared on openDemocracy.net under a Creative Commons licence.
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