Muhan Jabr al-Shuwaili no doubt knew the risks he faced when he ventured out of his house in Najaf on November 3, 2003. But the head judge of the Najaf governorate, member of a commission collecting evidence against former Iraqi officials possibly complicit in crimes against humanity, quickly discovered just how dangerous his job had become. That morning, Shuwaili and a prominent Najaf prosecutor, Arif Aziz, were kidnapped by unknown parties who told them that “Saddam has ordered your prosecution.” The two men were driven out into the desert. Aziz was released along the way, but the kidnappers headed off into the twilight with their captive Shuwaili. A day later, his body was found out in the desert. The jurist had been shot in the head at point-blank range.

Shuwaili’s assassination was one of three killings of Iraqi judges in the early weeks of November — a clear warning to the judiciary as the Coalition Provisional Authority (CPA) and the Iraqi Governing Council prepare to launch the first efforts to administer justice for the former regime’s crimes. Shuwaili was trying a high-profile case against several former Baathists, in an experimental trial relocated from Baghdad to a local court in Najaf. The case is now awaiting a new court date with a new judge, but so far, sources say, there are no takers.

As this issue went to press, the Iraqi Governing Council was expected to hand down legislation to launch the Iraqi Special Tribunals, venues set outside Iraq’s criminal and civil court system. The courts will be based largely on Iraqi laws, minus several onerous amendments put in place under Saddam Hussein’s regime. They will be bound to new human rights codes intended to bring national law up to international standards.

“The coalition has taken the decision that this is an Iraqi trial and must be an Iraqi-led process,” said David Hodgkinson, director of transitional justice in the CPA’s office of Human Rights and Transitional Justice. “It’s tied very closely to issues of sovereignty and all Iraqis have said that Iraqis should try the criminals.”

The tribunals are controversial with international human rights groups that have pushed for accountability for the crimes of the past, partly due to concerns that defendants may not get fair trials under the former regime’s ostensibly corrupt courts. After some early wrangling, the US-British occupation authority opted to hand over the tribunals to Iraqi courts and Iraqi judges, in accordance with a decision by the Governing Council.

For the last six months, the CPA’s transitional justice team and Iraqi judges have been out to prove that Iraq does in fact have the infrastructure to put on a fair trial. “[The critics] don’t believe Iraqis can deliver justice,” says one Iraqi-American lawyer involved in the process. “It’s ironic considering the international community has had 5 years since [the gassing of Kurds at] Halabja to try Saddam but have done nothing about it. Saddam’s crimes far outweigh Milosevic’s and if you’re going to try Milosevic, there’s no reason not to try Saddam.”

The statute setting up the tribunals will be rooted in Iraqi basic law, but also borrow from case law set by similar trials in Bosnia, Kosovo and Sierra Leone. For example, it will establish crimes against humanity—not classified as crimes under previous Iraqi law — as prosecutable offenses. Other amendments will include special due process requirements and guidelines on documentation. “We were lucky that the 1968 basic law and the 1971 criminal laws are a good basis to start with,” said Hodgkinson. “Compared to other tribunals, the Iraqis have moved much faster.” Initially, the tribunals will try the 45 key Baathist leaders in US-British custody, but the courts will move on to prosecute thousands of former regime loyalists accused of complicity in war crimes and crimes against humanity.

In its final report, the Working Group on Transitional Justice in Iraq, established by the Iraqi Jurists’ Association (IJA), charted a blueprint for much of the transitional justice legislation. The IJA stressed that the trials are at first intended to reveal the truth and eliminate the impulses for vengeance and violence, then to bring the perpetrators to justice. “In this sense, they are an effective contribution to [international norms of ] transitional justice,” the IJA stressed.

But before any of the trials can begin, teams overseen by a group of judges like Shuwaili must investigate the former regime officials and build ironclad cases against them. There is no statute of limitations for the prosecution of such crimes, nor are they covered by any amnesty. The investigation teams will be heavily supported by international experts, to ensure the integrity of evidence, while drawing help from specialized institutes to uncover and preserve incriminating material.

The good news, say investigators, is that despite the fires and looting that overtook most Iraqi institutions after the fall of the regime, the transitional justice team in fact has more documentation than it can handle. But some of the most critical documents are in the hands of political parties and other groups with particular agendas. Some have even gone as far as to offer documents for sale to the team. “One of the problems is that there are so many places where the documents are being housed,” said Hodgkinson. “People are beginning to sell the documents and charge people to see them. That’s why we need a whole process in place to get at the documents.” Investigators are working to obtain scans and copies of such material, if not taking over the document storehouses outright.

Even after the evidence is in order, judges will face logistical difficulties. Though the details have not been finalized, jurists foresee holding simultaneous trials in four to seven chambers, each presided over by three to seven judges. Choosing defendants will also be complicated. One tack is to try the 15 or so worst offenders first. A second option is to choose the worst seven or eight crimes and try all the defendants implicated therein. A third possibility is to proceed along both of these tracks in concert, in order to ensure the most thorough presentation of evidence. Either way, the trials could ensnare thousands of defendants in proceedings that could take years to complete.

Yet, as underscored by Shuwaili’s assassination, the biggest problem facing the Iraqi Special Tribunals is security. Many judges are said to have turned down offers to sit on the tribunal panels, stressing their lack of confidence in the security provided by the US military. “Security is going to be a serious concern here for the most capable judges,” says Hodgkinson. “But security is expensive. For courts that deal with this, it will be a major part of the cost.” Sources at the Office of the General Counsel to the CPA stress that a portion of the $20 billion approved by Congress for Iraq “reconstruction” will go toward protecting judges.

In their recommendations, the IJA called for taking measures to foil attempts at vigilante justice. One is to impose a 24-hour curfew upon the municipality on the first day of every trial, to be relaxed over time as security and order are established. All police forces would be put on guard and tribal and clan leaders would be used to help control rural areas. Most important, says the IJA, new laws and decrees must be promulgated through mass media to ensure that the trials operate with as high a degree of transparency as possible. The jurists also recommended that a stern warning be issued against acts of vengeance and that interim governors make clear that all vigilantes will be brought to trial.

The other challenge, however, will be to get the tribunals up and running fast enough to allay Iraqi fears that former regime figures will get away. A rash of assassinations of former Baathists in Basra and other southern cities in October highlighted the growing impatience of Iraqis seeking justice.

At a recent conference on transitional justice, Iraqi human rights groups lashed out at a representative of a similar effort in Cambodia, where the process has taken decades and has yet to begin in earnest. “How can we be expected to wait 23 years like you?” demanded Ibrahim Idrissi, president of the Freed Prisoners Association. “We want to get some justice
here and we wish that this process would start tomorrow.” No doubt millions of other Iraqis do, too.

How to cite this article:

Hassan Fattah "Will Iraqis Find Justice in War Crimes Tribunals?," Middle East Report 229 (Winter 2003).

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