by Holly Sun
Once upon a time, there lived a tyrannical king who consecrated his authority by decimating his opposition. During his reign, over 400,000 people were systematically slaughtered and displaced. Because no laws in his country prohibited him from doing so, the king continued his genocidal pastimes until an old friend turned on him and formed a team of allies to dethrone him. This team established new laws, set up a special court to enforce these laws, and put the old king on trial for his 35-years of cruelty and abuse. But while the old system was autocratic, it was also orderly. In its absence, entropy and conflict abound. Sectarian conflicts divide the country, violence pervades the homes of civilians, and foreign forces struggle to maintain order in the face of open hostility. As for the old king – his refusal to acknowledge this new legal authority, especially those attempting to bring him to justice, jeopardizes his country’s transition to concord and stability.
As the threat of further upheaval intensifies in Iraq, lawmakers and those involved in the Saddam Hussein trial must try to address this last obstacle as a means to ameliorate the others. Their efforts,of course, are thwarted at every turn – by competing interests, a muddied legal system and international intervention. What the Iraqis are left with is a rocky road to success and a Machiavellian rickshaw.
The journey began when the United States and coalition forces took control of Baghdad on April 1, 2003. According to a 2004 Congressional Research Service (CRS) report, the Coalition Provisional Authority (CPA) was established shortly thereafter. This international body was charged with bringing stability and legitimacy to a new Iraqi government. Within a nine-month period, CPA enacted legislation that outlawed certain “crimes against humanity,” and established a special military tribunal to adjudicate Saddam Hussein and the members of his repressive Baath regime. But in their haste to apprehend and bring these men to justice, the CPA failed to address the larger implications of its actions, for both the Iraqi people and the legacy of the war itself.
On October 19, 2005, the Supreme Iraqi Criminal Tribunal (SICT) convened to hear the first of approximately one dozen cases involving Hussein. While this particular case concerns only the 1982 massacre of the residents of al-Dujail, a 2004 USAID report confirmed that at least 400,000 people had been murdered under Hussein’s regime – their crude remains found in at least 270 mass graves. Given the gravity of the crimes, the stature of persons involved, and the implications for the future of Iraq, all eyes have focused on the trial. In just under one year, the conduct of the trial has been denounced, threatened, postponed and undermined consistently by domestic and international parties. Members of the international community have called for a multilateral approach, seeking to move the trial to the International Criminal Court (ICC) in The Hague. Others have decried the SICT’s de facto authority to impose capital punishment. Still others have questioned the mandate of the SICT, since it was created under the influence of the United States and only has jurisdiction over ex post facto laws created by the Iraqi government in 2005. Essentially, if the SICT convicts Hussein and his co-defendants on the charges of premeditated murder, false imprisonment, forcible expulsion of residents and other crimes, it will be doing so based on laws that were created nearly two decades after these alleged crimes were committed.
The SICT recently announced plans to issue its verdict either in late October or early November of 2006. But before one can even begin to discuss the implications of this verdict, one must understand how to properly balance the interests involved.
Initial proposals to conduct the trial in The Hague were overruled based on the lessons learned from the trial of former Yugoslavian president Slobodan Milosevic. In 2002, Milosevic was indicted on 66 counts of international war crimes, as defined by international customary law and the 1949 Geneva Conventions. During the course of the trial, investigators, witnesses and lawyers had to be transported back and forth from Yugoslavia to the Netherlands, incurring high costs and leaving them more vulnerable to threats and attacks. More importantly, the outside jurisdiction disconnected the Yugoslavian people from the trial, and denied them the right to prosecute one of their own countrymen. Moving the trial of a head of state to a foreign country undermines one of its most important functions – to serve as an example of democratic justice for the new government. Separating the trial from the very public that needs to see and understand this system is a cure worse than the disease. More important than the SICT’s verdict is the ability of the Iraqi people to rationalize and accept the values that produced it.
The United Nations is another of SICT’s critics. John Case, the United Nations Human Rights Chief in Iraq, issued a statement in December 2005 saying that the SICT would never satisfy international standards because of ongoing violence and flaws in Iraq’s legal system. Since the trial began in October 2005, three defense lawyers have been murdered, while others involved in the trial have been attacked and threatened. The latest victims were the relatives of Mohammad Oreibi al-Kalifa, the chief judge of the five-judge panel presiding over the court. Mr. al-Kalifa’s brother-in-law was shot dead, and his nephew and sister were badly injured. Citing these events, the UN strongly questions the ability of the SICT to conduct a fair trial.
Authority of the Court
Drawing on certain provisions proposed by the CPA, Iraq issued Law Number 10 in October 2005, establishing the SICT and its purposes and functions. It also officially encased the SICT’s subject matter jurisdiction to criminal offenses that occurred between July 17, 1968 and May 1, 2003. By focusing only on actions committed prior to its inception, theSICT’s primary oversight relies on ex post facto principle, a practice that has been largely rejected both in theory and in practice. Article 15 of the International Covenant on Civil and Political Rights states that “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed”. A total of 157 countries ratified this treaty, including Iraq on January 25, 1971 and the United State on June 8, 1992. Both countries also ratified the Convention on the Prevention and Punishment of the Crime of Genocide(1951), an international treaty that expressly prohibits the very crimes allegedly committed by Hussein and his co-defendants. Presumably then, these men should be adjudicated by an international judiciary, or at least one with the authority to enforce international law. The SICT is neither the former nor the latter.
So what is to be done? Clearly the atrocity of the acts in question warrants retribution of some kind. This was the argument used to justify the Nuremburg trials of the World War II criminals, when international prosecutors and judges drafted the Charter of the International Military Tribunal. Because the criminals were detained before anyone knew how they were to be adjudicated, there was no way to circumvent ex post factolaw. The drafters reasoned that certain crimes, while maybe not explicitly outlawed domestically, have been customarily rejected in international practice for years. It would not be logically incorrect then, to simply apply these principles formally. Indeed, retributive justice may be necessary to prevent and deter future atrocities.
With respect to the SICT’s judicial framework and authority to impose the death penalty, the UN outlines convincing arguments. Law Number 10 integrated several principles fundamental to the American justice system, including the right to a speedy trial, the right to confront one’s witnesses, and the right to remain silent without consequence of guilt or innocence. However, other aspects of the SICT lack this commonality. There is no jury or independent prosecutor, and there is a prohibition of any government authority to grant clemency or reduce the sentence of any punishment handed down by the SICT. Finally, and perhaps most troubling, is the conspicuous lack of a corresponding penalty for the crimes enumerated in Law Number 10.
In creating Law Number 10, the Iraqi government took great pains to define what actions constitute a “crime against humanity.” But their failure to assign a penalty for committing such an act in either a criminal statute or the Iraqi penal code leaves the SICT with a wild card. On June 19, 2006, the prosecution capped its closing argument by demanding the death penalty for Hussein and three of his co-defendants. By November 2006, the SICT will have to play its card. Amidst the political turmoil, sectarian violence and legal ambiguity, they must make a bad decision or a worse decision, and be prepared to back it up.
The complexities of this trial are twofold because of the ongoing violence and increasing casualties. The struggle to bring Hussein and the Baathist regime to justice is set against the backdrop of a war-torn country. The rift between the Sunni and Shiite sects has only increased since Hussein’s deposal, and whether it will continue to do so may largely depend on the outcome of this trial. A conviction and the death penalty will enrage the now Sunni-minority, since many still sympathize with Saddam and remain loyal to his party. On the other hand, Shiites will be outraged if Saddam and his men escape without a death sentence for the genocide of hundreds of thousands of Shiites. Shiite lawmaker Hassan al Suneid told USA Today that anything less than a death sentence will be to the neglect of justice.
Fully aware of how its verdict will be perceived by both sects, the SICT must weigh heavily on the implications that the verdict and its methodology will have on the fragile country. However flawed the legal system may be, the end result must preserve some modicum of justice, even if it comes at the expense of other values. The entire judicial process is reflective of Iraq’s desperate struggle to reclaim its identity and legitimacy after 35 years of oppression and abuse. Embracing democracy after decades of totalitarianism, military rule, intermittent waves of communism and a succession of wars is no easy task. While this is not the first time that Iraq has endured such volatility, it is their first experience in post-conflict resolution. The first step in attaining this goal hinges on the complicity of the Iraqi people – their acknowledgement and acceptance of the SICT’s authority and decision. Without it, this and future trials are nothing more than a prologue to turmoil and tragedy.
Email Holly Sun at email@example.com