Global Policy Forum

By Alex Boraine

If leaders of Saddam Hussein's regime are prosecuted by, or on behalf, of the United States, Iraqis will view the prosecutions as "show trials" and the overwhelming majority of Arab nations and other countries opposed to the U.S.-led occupation of Iraq will reject them as "victor's justice." Every effort must be made to avoid such an outcome. It is in no one's interests that efforts to pursue justice for the terrible crimes committed under Saddam are discredited because they are conducted under U.S. auspices.

Until a democratically elected Iraqi government is established, only the United Nations has the credibility and legitimacy to establish a human rights court. An expert commission should be set up immediately to consult widely and advise the UN secretary-general on various options. Legitimate representatives of the Iraqi people, including victims themselves, should be consulted before trials, truth commissions, or vetting procedures are fixed.

Useful lessons can be drawn from the ad hoc tribunals for Rwanda and the former Yugoslavia and the "hybrid" tribunals currently operating in Sierra Leone and East Timor. The ad hoc tribunals, acting with the authority of the UN Security Council, have considerable enforcement powers and substantial resources, but have been criticized as slow, expensive, and distanced from local populations. By drawing on both national and international staff, the "hybrid" tribunals have sought to blend international expertise and impartiality with local ownership and legitimacy.

The United Nations could also consider a human rights court comprising Iraqi, Arab and international judges to try those leaders most responsible for war crimes and human rights abuses under Saddam's rule. Designating the court's official language as Arabic would expedite its proceedings and reduce the perception of judicial imperialism.

A new Iraqi government must also be adequately equipped to build a new criminal justice system. Any human rights court will be able to prosecute only a small fraction of the total number of abusers and will play a limited role in protecting rights and rebuilding the rule of law. Both East Timor and Afghanistan have an alarming institutional vacuum because of insufficient planning and resources devoted to building the local justice system. The international community's efforts to pursue accountability in Iraq must strengthen local legal institutions rather than siphon off skills and resources to temporary international bodies.

Several organizations have called for an Iraqi truth commission that would paint a full picture of human rights abuse in Iraq over the past 25 years. A legitimate Iraqi government could consider such a commission to give victims a voice, unearth the causes of human rights abuse, consider measures to assist victims and prevent future violations. The commission should not grant amnesty for international crimes because this will promote impunity, undermine the rule of law and provoke anger and cynicism among victims and citizens.

The commission could explore ways of promoting reconciliation and harmony between different ethnic and religious groups in Iraq. It could also examine the role other countries have played in supporting and sustaining Saddam's rule - a form of collusion that risks being airbrushed from history. Finally, an Iraqi truth commission could serve as a potent reminder to the international community, and to Western powers in particular, of the consequences of supporting repressive rule in the Middle East.

As Iraq's public administration is reconstructed, U.S. officials have begun to implement a rudimentary system to exclude members of Saddam's Ba'ath party. While it is legitimate and indeed desirable to prevent those responsible for human rights abuses from assuming positions of public trust, a new Iraqi government should avoid implementing a system that discriminates purely on the basis of political belief or ideology.

A democratic Iraqi government could legitimately establish a carefully targeted vetting program, providing it uses fair procedures to screen all civil servants for serious misconduct or involvement in human rights abuse.

Iraq's future will be influenced not only by the steps its new leaders take to deal with its past, but also by any missteps by external actors. If justice is to be done and the full truth is to be told, then the ownership and design of these processes must be left to legitimate representatives of the Iraqi people, acting with the full support and assistance of the United Nations.

The writer, president of the International Center for Transitional Justice in New York, is a former deputy chairman of South Africa's Truth and Reconciliation Commission.

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