“Baghdad, if you ask your friends about it, has one re- markable peculiarity.” [1] So wrote Freya Stark in 1937 in her famed, and more than slightly Orientalist, collection of travel essays, Baghdad Sketches. Today, Baghdad has a number of peculiarities, though its most staggering is the pervasiveness of the memory of atrocities under Saddam Hussein’s 25-year rule.
Despite efforts by the Coalition Provisional Authority literally to erase his image from public spaces, evidence of the no- torious dictator’s might is everywhere. His statues and portraits still litter the Baghdad landscape and the elaborate mosques he intended as monuments to his regime still tower — some half-finished — over the Iraqi capital. Military facilities and prisons bear silent witness to his regime’s wars of aggression and repression of dissent. Once flourishing Shi‘i neighbor- hoods have been reduced to neglected slums.
The most enduring scars of Saddam Hussein’s brutality can be observed on the Iraqi people themselves. Much more often than not, Iraqi living rooms contain photos of family members lost in one of his wars, to one of his genocidal campaigns or under circumstances that will never be precisely known. The culture of fear that pervaded Iraq under his rule has not yet subsided. Hussein’s atrocities are an indelible feature of the Iraqi psyche.
Years of Silence
Over the past two decades, there had been little talk of seeking justice for these crimes. Instead, shortly after Hussein’s regime launched its war against Iran, the United States embraced Iraq as an ally. In December 1983, Donald Rumsfeld traveled to Baghdad as a special envoy to assure the Iraqi dictator of Washington’s support. At this time, Hussein began to accumulate some $5 billion in US-guaranteed loans, much of which was used to enlarge Iraqi military stockpiles. During this same period, willful indifference and funding from the US and other Western powers enabled Hussein to acquire between 2,000 and 4,000 tons of chemical weapons. [2]
During the Iran-Iraq war, the regime unleashed systematic violence against Iraq’s Shi‘i and Kurds, whom it accused of being collaborators with Iran. In the 1987 Anfal campaign against the Kurds, Hussein became the first leader ever to use chemical weapons against citizens of his own country. The destruction of entire villages was commonplace, as the dead were deposited in dozens of mass graves scattered throughout Iraq. Even as reports of these depredations surfaced, however, US officials were hesitant to criticize. When, in 1988, the State Department finally issued a condemnation of the confirmed use of chemical weapons, presidential spokesman Marlin Fitzwater tempered it with assurances that the criticism was “in no way intended to diminish our interest in…bilateral relations” with Iraq. [3]
But those bilateral relations soon dissolved. Following Iraq’s invasion of Kuwait in 1990, the UN implemented crippling economic sanctions against Iraq. For the UN, the stated purpose of sanctions was to compel Saddam Hussein’s adherence to UN resolutions prohibiting non-conventional weapons programs, while, for the US and Britain, the objective was to weaken Hussein’s regime. Sanctions did not stop Hussein from ordering the harsh repression of Shi‘i and Kurdish uprisings in 1991 nor did they stop him from committing further abuses against a vulnerable Iraqi population in the succeeding decade. Meanwhile, large numbers of Iraqis suffered severe health problems as a result of malnutrition and poor sanitation. The UN Security Council, mainly at the behest of Russia and France, also blocked attempts to establish an international war crimes tribunal to try Saddam Hussein. The plight of Iraqis was once again met with relative silence.
Interests at Stake
Now, in the wake of Saddam Hussein’s capture and detention, all eyes appear to be fixed on the manner in which he and other high-ranking members of the formerly ruling Baath Party will be tried for their crimes. The significance of these proceedings cannot be overstated. For Iraqis, the tribunal will provide the first-ever public record of crimes that were essentially ignored for over a decade. By bringing war criminals to justice, the tribunal promises a major step away from the dismal Baathist past in furtherance of Iraq’s quest for sovereignty.
As is often the case with Iraq, the interests at stake are not only Iraqi. For the Bush administration, Hussein’s appalling human rights record is the sole remaining justification for its decision to invade Iraq. In light of the Abu Ghraib scandal and other transgressions of the US-led occupation, the trial of war criminals is possibly the Bush administration’s last opportunity to curry favor with an increasingly wary Iraqi public. As Deputy Secretary of Defense Paul Wolfowitz stated in July: “It goes without saying that Saddam’s trial is going to be one of the most important trials of the last hundred years, including Eichmann. This will finally convince Iraqis that his regime has really been brought to an end.” [4]
The trial of Saddam Hussein also has notable implications for the future of international justice. Like the war crimes tribunals convened in The Hague, Sierra Leone, Tanzania and Cambodia, the Iraqi war crimes tribunal will play an important role in efforts to utilize international legal institutions as a mechanism for remedying human rights abuses. Proponents of this approach argue that an international system of justice is of particular necessity in nations where justice is otherwise unavailable, either because national laws do not contemplate such acts or, as is the case with Iraq, the state is undergoing a transition in which the most basic elements of the rule of law are lacking. [5] As to Iraqi war crimes, a number of human rights organizations urged the US to partner with the UN in creating an international tribunal to try war criminals of the deposed regime, reasoning that the involvement of the international legal community is necessary to ensure proper enforcement of international law. [6]
In December 2003, the Bush administration — unabashed in its aversion to international justice—rebuffed calls for an international tribunal and announced that Saddam Hussein would be tried in a tribunal of the Coalition Provisional Authority’s making. The CPA has insisted that its decision to reject international involvement came at the behest of Iraqis who wanted to try Saddam Hussein themselves. [7] Nonetheless, the design of the Iraqi Special Tribunal (IST) bears the unmistakable imprimatur of the United States. In authorizing the Iraqi Govern- ing Council to establish the IST, the CPA required that all provisions of the tribunal statute be coordinated with its personnel, and that CPA head L. Paul Bremer would have veto power over any provision with respect to either crimes or procedure “if required in the interests of security.” [8] The US has further assured its long-term influence over the tribunal by placing at its helm Salem Chalabi, nephew of one-time Pentagon favorite Ahmad Chalabi. (The younger Chalabi’s August 2004 indictment on charges of murder by the interim Iraqi government may delay the tribunal, but likely will not stop it.)
Though the US rejected meaningful international participation in the IST, it has stressed that tribunal proceedings nonetheless promise to be consistent with those that would have occurred in an international setting. To this end, the statute borrows heavily from the same body of law that would be enforced by the UN. Three of the four categories of crimes set forth in the tribunal statute — genocide, war crimes and crimes against humanity — are explicitly premised upon international humanitarian law. The statute also stipulates that Iraqi jurists and prosecutors be assisted by “non-Iraqi advisors and observers” who are well-versed in international law.” [9] Thus, while international jurists cannot preside over proceedings or prosecute war criminals, the statute allows for them to share their expertise with their Iraqi counterparts.
While these provisions may give the impression of “putting international law in Iraqi hands,” other factors indicate otherwise. In the tribunal statute, there is a fourth category of crimes — beyond genocide, war crimes and crimes against humanity—based upon a miscellaneous collection of Iraqi laws. Among these is a 1958 provision that proscribes “the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country.” This provision is clearly intended to address Iraq’s 1990 invasion of Kuwait. Another such provision is an Iraqi law that makes criminal “the wastage of national resources and the squandering of public assets and funds,” a provision that addresses the abuse of Iraq’s oil supply.
The inclusion of local laws in what is intended to be an international proceeding is arguably at odds with the idea of enforcing neutral rules to prevent politicized proceedings. Indeed, the statutes of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda contain only international legal provisions. [10]
One might argue that specific provisions regarding the invasion of Kuwait and attendant oil issues are innocuous, given that the invasion violated international law. However, the inclusion of these sections alongside the conspicuous absense of any specific provision with respect to Iraq’s war with Iran creates a peculiar disparity. [11] By specifically addressing Iraq’s invasion of Kuwait, the CPA and its Iraqi proxies seemingly emphasized this war over Iraq’s war with Iran. That the war with Iran benefited from the quiet support of the United States, while the invasion of Kuwait was the subject of severe US reprisal, indicates that the CPA may have imposed its own ideas about which of Hussein’s acts should take higher priority. That prioritization is largely out of step with Iraqi public opinion, which generally considers Iraq’s brief occupation of Kuwait to be less significant than its eight-year war with Iran. The disparity makes unambiguous the US gloss upon tribunal proceedings, something that will likely jeopardize the IST’s legitimacy.
Matters are further complicated by the fact that, aside from some Iraqi participants, the tribunal has been implemented exclusively by the United States. All of the non-Iraqi advisors provided for in the tribunal statute are employees of the Justice Department, which in March appointed a special liaison, George Kehoe, to the proceedings. The New York Times Magazine reports that some 70 other members of the Justice Department have been sent to Iraq to assist with the work of the IST. Kehoe describes American participation in the IST as “pyramidal”; Justice Department lawyers have assumed the role of investigating war crimes and developing cases to be tried, while those actually bringing and hearing the cases will be Iraqi. “So, by the time you’re actually in the courtroom, at the tip of the pyramid,” Kehoe explained to the New York Times, “it’s an Iraqi-led process.” This “pyramidal” structure indicates that Iraqi participation could become symbolic. Indeed, the threat to the tribunal’s legitimacy is already apparent: the same story quoted a prominent Iraqi jurist as saying that “this tribunal is not ours; it is somebody who came from abroad who created a court for themselves.” Noted international legal scholar M. Cherif Bassiouni echoed this sentiment: “Where in the world can you say this is an independent judiciary, with US proxies appointing and controlling judges, with US gift-wrapped cases?”
Let the Games Begin
The central US role in the prosecution of war criminals is something that has not escaped the attention of Hussein’s lawyers, who plan to capitalize on this factor at trial. [12] In April 2004, Jacques Verges, a French lawyer who has been hired by the Hussein family, stated that he hopes to nullify Hussein’s crimes by demonstrating that the US was complicit in their commission. The tactic will serve to politicize the proceedings, thus distracting from the substance of war crimes. With the issue of the US relationship with the Hussein regime taking center stage, Arab popular opinion has begun to take the view that the trial is more a case of “US imperialism versus the Arab world” than the Iraqi people versus Saddam Hussein. This is likely why Hussein’s ever expanding legal team is replete with lawyers from various Arab bar associations who view the proceedings as an opportunity to confront the United States.
Whether extensive US involvement in the IST will in fact hamper the ability of prosecutors to secure convictions against Hussein and his cohorts remains to be seen, although in all likelihood it will not. Nonetheless, the threat to the tribunal is grave. The politicization of the IST will reduce the proceedings into a circus of finger pointing and grandstanding. As it has been for three decades, Iraqi suffering will likely be cast aside, thus denying the Iraqi people any meaningful justice and leaving them far from their goal of achieving sovereignty.
Ironically, US involvement in tribunal proceedings will do little to assist the Bush administration in its mission to bring stability to Iraq. Quite the contrary, rehashing the US relationship with the Baathist regime will likely weigh heavily on the fragile relationship between the US and the Iraqi people. Any failure of the tribunal to deliver the justice that the Iraqi people expect will constitute yet another transgression of the US-led occupation. The United States would clearly be better served by assuming the role of spectator; instead, it has insisted on playing judge and jury.
Herein lies the trouble with the tribunal. Perhaps the great- est lesson to be learned from the missteps of the CPA is the value of international legal institutions in politically charged contexts. It is the very purpose of international law to bring independence and uniformity to the prosecution of human rights abuses by extending the rule of law where it is otherwise not present. These purposes are thwarted when they are en- forced in a venue that is rife with special interests. Fortunately, the Iraqi people are not beholden to the CPA-designed Iraqi Special Tribunal. One of the few powers accorded the Iraqi Interim Government that assumed nominal sovereignty on June 28 is the ability to amend the tribunal statute. The interim government will better serve Iraqi interests by acknowledging the inherent problems with the predominant US role in the proceedings. Specifically, the interim government should seek the involvement of international jurists and prosecutors alongside their Iraqi counterparts to neutralize the proceedings and revisit those aspects of the tribunal statute that seemingly supplant the interests of the Iraqi people with those of the United States. These measures will assure the tribunal’s integrity and, in doing so, will bring about the most remark- able of peculiarities: justice for the people of Iraq.
Endnotes
[1] Freya Stark, Baghdad Sketches (London: Guild Books, 1937), p. 14. The peculiarity that Stark found so remarkable was that it was impossible to live in Baghdad “for less than a pound a day.” In 1937, one British pound had the purchasing power of nearly 49 pounds, or $90, today. According to the 2004 CIA World Fact Book, the average monthly income for Iraqi families today is approximately $134.
[2] Samantha Power, A Problem From Hell: America and the Age of Genocide (New York: Perennial, 2002), pp. 178-186, 236.
[3] Ibid., p. 224.
[4] Peter Landesman, “Who v. Saddam?” The New York Times Magazine, July 11, 2004.
[5] See Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2002).
[6] See, for example, Human Rights Watch, Saddam’s Hussein’s Trial (New York, December 2003).
[7] Tom Parker, “Judgment at Baghdad,” New York Times, July 7, 2004.
[8] CPA Order 48, Section 1(4-6). The order does not define these security interests.
[9] Statute of the Iraqi Special Tribunal, Article 6 (c). The statute says, “It would be preferable that such non-Iraqi advisor or observer shall have…acted in either a judicial or prosecutorial capacity in his or her respective country, or…have experience in international war crimes trials or tribunals.”
[10] The Statute of the Special Court for Sierra Leone contains local provisions with respect to child rape and malicious property damage. Notably, these laws do not regard political acts towards other nations, as do the IST’s provisions.
[11] While, in its preamble, the statute states that the tribunal will address crimes committed in connection with Iraq’s war with Iran, these will be prosecuted to the extent they violate international law. The statute does not contain specific provisions with respect to Iraq’s instigation of war with Iran.
[12] New York Times, April 4, 2004.
