Global Policy Forum

Justice Abandoned


By Michael A. Newton

International Herald Tribune
November 25, 2004

The worst kind of hypocrisy is the sort that pretends to stand on principle. The latest example is the failure of the United Nations, America's European allies and nongovernmental groups to support Iraqi efforts to bring Saddam Hussein and his henchmen to justice.

Oppression by the Baathist regime directly caused the deaths of more than 300,000 Iraqis and the destruction of around 5,000 villages. That is why creating a system for imposing criminal punishment in accordance with established international standards was one of the earliest priorities for the new Iraqi government. Employing the hybrid model successfully used in Sierra Leone, the Iraqi Special Tribunal was established in December.

The statute creating the tribunal incorporates the full range of modern international crimes into the fabric of a binding domestic law, and it is in compliance with established human rights norms. For instance, for the first time under Iraqi law, a judge is forbidden to draw an inference of guilt from the silence of the accused at trial. The statute also reflects the strong desire of the Iraqi authorities to ensure a process free from political constraint, stating that the tribunal "shall be an independent entity and not associated with any Iraqi government departments."

Last month I spent a week in London working with the group of judges and prosecutors who form the core of the special tribunal. They are a distinguished group of patriots who know more than any outsider how critical the rule of law will be for the future of their country. Yes, just like other inexperienced judges on previous tribunals elsewhere in the developing world, they have much to learn about conducting complex trials in accordance with the most modern nuances of international law. But they are dedicated to doing so. As one Iraqi told me, "My job is to judge, not to murder."

Unfortunately, their pleas for assistance are going unanswered. For example, some of the most experienced practitioners from the International Criminal Tribunal for the Former Yugoslavia had initially agreed to participate in the London sessions. At the last minute, however, UN Secretary General Kofi Annan lamely insisted that these experts were all too busy in The Hague to help the Iraqis, and he ordered them to stay home.

Similarly, Amnesty International has issued a press release insisting that the "trial of Saddam Hussein must draw on international expertise," but has failed to provide any such help. Human Rights Watch took testimony from Iraqi victims who thought they were helping develop cases against Iraqis suspected of crimes. But according to American officials, the organization, without consulting the witnesses, refused to provide all the statements or to give all the victims' identities to the special tribunal. Human Rights Watch has even taken issue with the statute's ban on former Baath Party members sitting in judgment of the accused. Would the group have wanted Nazis passing judgment at Nuremberg?

Of course, what really has the armchair lawyers riled up is that Iraqi authorities have decided that those convicted of the gravest offenses can be sentenced to death. Just as at Nuremberg, the death penalty is available in Iraq because no one can figure out what other punishment fits such crimes.

In any case, it seems clear that the choice of punishments should be reserved for sovereign governments. When self-appointed arbiters of justice refuse to help, their smug self-righteousness is clear: "How dare those Iraqis try and build the rule of law for themselves?"

And this elitist attitude goes beyond the tribunal. For example, the world saw the grisly remains of Kurdish victims lifted from mass graves outside Hatra, Iraq, last month. But it went largely unreported that European countries declined Iraqi requests for forensic assistance, because they feared that any evidence they recovered would be used at trial. American and Iraqi officials, knowing that there was plenty of evidence in the first two mass graves uncovered, told the Europeans that if they assisted at the other five sites, what they found would be used only to identify victims, not for prosecutions. Still, Europe refused.

Now the cash-strapped Iraqi government may have to leave the rest of the bodies at Hatra buried. The price for the victims' families will be high: Young women who cannot document the deaths of their fathers will not be able to marry in some places; widows may be unable to remarry.

Trials based on the principles of justice will be a vital step toward healing Iraqi society and will be the cornerstone of a peaceful democracy. It's a shame those who profess to hold the highest ideals won't be a part of it.

More Information on International Justice
More Information on the Iraq Tribunal
More Information on International Criminal Tribunals and Special Courts
More Information on the Iraq Crisis


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