Issue #3: Is the Iraqi Special Tribunal, which was established on December 10, 2003 by the Occupying Power and the unelected Iraqi Governing Council, a legitimate judicial institution?
YES: By Linda Malone**
The Geneva Conventions mandate that the laws of an occupied state be changed only in cases of military necessity. Therefore, a narrow interpretation of occupation law under the Geneva Conventions would require finding that the Iraqi Special Tribunal (IST) was not a legitimate judicial institution, solely in regard to its status as a creation of an occupying power without a military reason for its establishment. The trend among legal scholars, however, is to recognize the need for an occupying power to be permitted to change the laws of an occupied state in order to render humanitarian aid. This broader interpretation of occupation law under the Geneva Conventions, allowing both occupation and the alteration of an occupied state's laws for humanitarian purposes, would legitimize the IST as a judicial institution, despite its formation by an occupying power with or without military necessity.
The IST may also be a legitimate judicial institution because of its approval by the unelected Iraqi Governing Council (IGC). The IGC, although unelected, is recognized by the international community as having been a legitimate governing body. The recognition and approval of the IST by the IGC thereby legitimizes the IST as a legitimate judicial body, because it was created by a legitimate governing body.
Finally, the newly elected Iraqi government has the power to either formally or informally legitimize the IST. The Iraqi government may choose to formally legitimize the IST through its legislative process, or by executive mandate. Either action would legitimize not only the future actions of the IST, but its past actions, as well. If the Iraqi government chooses to informally legitimize the IST, it may do so by simply continuing to operate the IST, recognizing its jurisdiction and the binding power of its decisions. This continued operation would grant tacit approval to the IST and would legitimize its actions. Such recognition by an elected government would be the best method of solidifying the legitimacy of the IST, and would leave the least room for doubt regarding the authority of the IST.
Notes:
** All information presented in this answer was taken from a Memorandum for the Iraqi Special Tribunal regarding the legality of the IST, prepared by Heidi M. Brown and Tarek Z. Shuman in April, 2005.
YES: By Christopher M. Rassi
Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 101 (2006).
The Iraqi Governing Council promulgated the Statute of the Iraqi Special Tribunal (the "IST") on December 10, 2003 (the "2003 Statute"). On March 8, 2004 the Iraqi Governing Council promulgated the Law of Administration for the State of Iraq for the Transitional Period (the "TAL"). The TAL, established by the Iraqi Governing Council before the restoration of Iraqi sovereignty, is Iraq''s Interim Constitution and preserves and continues the 2003 Statute in force and effect. Article 48 of the TAL confirms the 2003 Statute as "issued on 10 December 2003." It also declares that the 2003 Statute "exclusively defines the [IST''s"> jurisdiction and procedures, notwithstanding the provisions of [the TAL.">"
On August 11, 2005, the Transitional National Assembly instituted a revised Statute for the IST (the "2005 Statute") which abrogated in full the 2003 Statute. Despite the TAL''s Article 48, the Iraqi Transitional Government has the power to replace the 2003 Statute with a revised Statute without amending the TAL itself. The TAL only confirmed the 2003 Statute, and refers back to the 2003 Statute itself for exclusive interpretive authority, which gives power to the new elected Government of Iraq. Article 37 of the 2003 Statute states that "[t">he Governing Council or the Successor Government has the powers to establish other rules and procedures in order to implement this [2003"> Statute." Article 32 of the 2003 Statute further states that "[t">he powers conferred on the Governing Council in this Statute shall be transferred to the executive authority in any future government (the "Successor Government") established following the disbanding of the Governing Council." Not only did the Transitional National Authority have the Constitutional power to replace the Statute, but this act lends legitimacy to the very institution of the IST. Commentators have questioned the legitimacy of the IST, which was initially created and designed by occupiers and an unelected government. The 2005 Statute, established by the Transitional National Assembly, should alleviate the fears of those that believe that the IST is not the work and will of the elected Iraqi Government. Further, such an act ensures that the IST will continue to operate even though its founding Government has been replaced.
The IST should fulfill its promise as a true hybrid domestic-international court: by Laura Dickinson
Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 91 (2006).
HARNESSING THE IST’S POTENTIAL AS A “HYBRID” COURT: Iraq Should Consider Appointing Foreign Judges to the IST to Enhance the Legitimacy and Capacity of the Court
The Iraqi Special Tribunal is poised to begin some of the most important war crimes trials of this century, both for Iraq and the world at large. Whatever one may think about the legality and morality of the Iraq war, it is difficult to dispute that Saddam Hussein and his associates should be brought to trial for the widespread atrocities they are accused of having committed. Criminal prosecutions have the potential not only to adjudicate individual responsibility, but also to create a historical record, to send a message that Iraq is committed to the rule of law, and to pave the way for broader societal healing. Yet these worthy goals are imperiled by the ongoing conflict in the country, by the real risks such conflict poses to the courageous judges who have stepped forward to serve on the tribunal, and by concerns that the tribunal will not be independent or impartial. It is my view, therefore, that the Iraqi government should seriously consider exercising its authority under the IST statute to appoint foreign judges in order to enhance the legitimacy and capacity of the court, and thereby fulfill its promise as a “hybrid” domestic-international court.
Iraq chose to create a “hybrid” domestic-international court to address the atrocities committed during the regime of Saddam Hussein. Some policy-makers and scholars had argued that only a purely international tribunal—composed entirely of foreign judges trying cases under international law in a courtroom safely outside the territory of Iraq—could mete out fair justice in the Iraqi cases. Others had suggested that a domestic court was more appropriate, in order to enable Iraqi participation in the process and to prevent any overtones of imperialism. Yet in the end Iraq chose create a hybrid of the two, a court that has some international and some domestic components (although to be sure, in its current structure it more closely resembles a domestic court). For example, the court has the authority to apply both domestic and international law. In addition, the IST Statute requires the appointment of international advisors, who will advise the judges and prosecutors on international law and will “monitor” the Tribunal’s observance of due process principles. The Statute includes no formal role for the United Nations, but the judge who serves as President of the Tribunal may request assistance from the U.N. in appointing the non-Iraqi experts. And while the judges of the court are currently all Iraqi nationals, the Statute provides that the government can appoint non-Iraqi judges if such a move is deemed “necessary.” The court thus resembles, and has the capacity to resemble even more closely, a growing number of hybrid domestic-international courts around the world—from East Timor, to Sierra Leone, to Kosovo, to Cambodia—that hold special promise in the adjudication of war crimes.
Scholars and policy-makers have paid less attention to hybrid domestic-international courts than to purely international or purely domestic tribunals, but such courts offer distinct advantages. Such courts are “hybrid” because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. This hybrid model has developed in a range of settings, generally post-conflict situations where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo. Most recently, an agreement to create a hybrid court in Cambodia has been reached. Because of their hybrid character, such courts have special advantages in gaining legitimacy among multiple populations, as well as in promoting capacity-building and the rule of law.
With respect to legitimacy—which I am here defining quite broadly to mean those factors that tend to make the decisions of a juridical body acceptable to various populations observing its procedures “on the ground”—hybrid courts have advantages over purely domestic tribunals on the one hand, and purely international tribunals on the other. Not surprisingly, the perceived legitimacy of domestic judicial institutions in post-conflict situations is often in question. To the extent that such institutions exist at all, they typically will have suffered severely during the conflict. The physical infrastructure often will have sustained extensive, crippling damage, and the personnel is likely to be severely compromised or lacking in essential skills. Judges and prosecutors may remain in place from the prior regime, which may have backed the commission of widespread atrocities. Thus, the state may continue to employ the very people who failed to prosecute or convict murderers or torturers or ethnic cleansers. Alternatively, the new regime may replace the old personnel almost completely, resulting in an enormous skill and experience deficit, as well as the danger of show trials and overly zealous prosecution for past crimes. At the same time, broad acceptance of purely international processes may be difficult to establish as well. For example, in light of the continuing ethnic tensions within the region, the ICTY was established at the Hague, far removed from the scene of the atrocities, and the court was staffed by international judges and staff. However, the lack of connection to local populations has been problematic.
Hybrid courts can solve some of these legitimacy problems. In Kosovo and East Timor, the addition of international judges and prosecutors to cases involving serious human rights abuses may have enhanced the perceived legitimacy of the process, at least to some degree. In both contexts, the initial failure of U.N. authorities to consult with the local population in making governance decisions generally, and decisions about the judiciary specifically, sparked public outcry. Thus, in both Kosovo and East Timor the appointment of foreign judges to domestic courts to sit alongside local judges and the appointment of foreign prosecutors to team up with local prosecutors helped to create a framework for consultation.
The appointment of international judges to the local courts in these highly sensitive cases may also have helped to enhance the perception of the independence of the judiciary. In Kosovo this was most apparent, as the previous attempts at domestic justice had failed to win any support among Serbs. Indeed, Serbian judges refused to cooperate in the administration of justice, and the verdicts in the cases tried by ethnic Albanians were regarded by the ethnic Serbian population as tainted. In contrast, the verdicts of the hybrid tribunals garnered considerable support, even among Serbs.
As compared to purely domestic and purely international institutions, hybrid courts may also better promote local capacity-building, which is often an urgent priority in post-conflict situations. The conflicts in Kosovo and East Timor virtually eliminated the physical infrastructure of the judiciary, including court buildings, equipment, and legal texts. But even more devastating than the physical loss was the loss in human resources. In Kosovo, only Serbs had the experience and training to work as judges and prosecutors; yet these Serbs often refused to work in the new system because doing so would constitute a betrayal of their ethnic heritage. There were some Albanians with legal training, but they had been almost completely excluded from the system for many years and therefore had little experience. In East Timor, the capacity deficit was even more severe because the Indonesians, who had staffed the judiciary had evacuated, and few Timorese possessed any legal training or experience. Yet a purely international process that largely bypasses the local population does little to help support local capacity.
The hybrid process thus offers advantages in the arena of capacity-building as well. The side-by-side working arrangements allow for on-the job training that is likely to be more effective than abstract classroom discussions of formal legal rules and principles. And the teamwork can allow for sharing of experiences and knowledge in both directions. Foreign actors have the opportunity to gain greater sensitivity to local issues, local culture, and local approaches to justice at the same time that local actors can learn from foreign actors. In addition, hybrid courts can serve as a locus for international funding efforts, thereby pumping needed funds into the rebuilding of local infrastructure.
In view of the potential threats to the IST’s legitimacy, both inside and outside Iraq, the Iraqi government should seriously consider drawing from the lessons of the other hybrid courts and further develop the IST’s hybrid character. Specifically, by appointing foreign judges, the Iraqi government might enhance perceptions, both within Iraq and in the broader international community, of the court’s independence. Specifically, the addition of foreign judges might serve as a shield for the domestic judges, as was the case in Kosovo, and help to create a sense of each panel’s neutrality as to all ethnic groups within Iraq. At the same time, the appointment of foreign judges with experience in international human rights or humanitarian law might provide a welcome infusion of expertise in these areas, while at the same time offer opportunities for these experts to develop knowledge of Iraqi law and Iraqi approaches to these issues.
Thus, by taking advantage of the potentially hybrid nature of the court, the IST could both lend greater legitimacy to its process and help build the expertise and capacity of the local Iraqi justice sector. And, to combat any potential nationalist fears about the imposition of “western” justice on Iraqis, the foreign judges might be drawn from Arab or Muslim countries. For example, judges or lawyers involved in recent human rights trials in Indonesia might be willing to serve. And while making the court a true hybrid is obviously not a panacea, I believe it would place the IST and the emerging Iraqi justice system on firmer footing than it is today.
“What If” a Different U.S. Strategy Had Built a Different Court for Iraq?
by David Scheffer
Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 98 (2006).
The trials of former Iraqi President Saddam Hussein and many of his regime’s top officials will demonstrate whether the Bush administration’s judicial strategy for post-war Iraq is likely to work. Will it compensate for an intervention and occupation that so boldly challenged fundamental principles of international law? I need not make the case for how serious the situation is in Iraq today or how the U.S. performance there might fare with any reasonable cost-benefit analysis or scrutiny under the law of war (particularly with respect to detainees). But it is fair to ask whether in the realm of rule of law challenges a different judicial and Security Council strategy could have been pursued prior to Operation Iraqi Freedom in March 2003. After all, an alternative U.S. strategy, particularly with respect to accountability for atrocity crimes (genocide, crimes against humanity, serious war crimes, aggression), had developed steadily during the Clinton Administration, from 1993 through 2000. So I will indulge in a “what if” exercise on accountability. The Iraqi experience of recent years desperately needs such an alternative perspective—a Plan B, if you will—so that we might better understand the merits and flaws of current policies.
Imagine where we would be today if, in September 2002 when President George W. Bush challenged the United Nations General Assembly to be “relevant” and confront Iraq’s alleged non-compliance with Security Council resolutions, particularly those pertaining to weapons of mass destruction (WMDs), he had coupled that challenge with a far more persuasive evidentiary case: the quarter century record of the Iraqi regime’s alleged atrocity crimes against its own people and other countries. Bush had the standing and leverage at that moment in history to achieve what had been a critical goal of the Clinton Administration and should have been pursued (despite all of Bush’s “anything but Clinton” policies) with the changing of the guard in January 2001.
The critical moment in history had arrived when President Bush stepped up to the podium of the UN General Assembly on September 12, 2002, to seek Security Council action on Iraq. I contended then and I would maintain today that the stars were aligned on that day to achieve the objective we, with strong bipartisan support, had spent almost eight years of the Clinton Administration striving to build support for among key governments. President Bush, who made reference to the alleged atrocities of the Iraqi regime but focused his call for action on Iraq’s disarmament obligations under Security Council resolutions, could have called on the Security Council to create immediately a powerful international criminal tribunal to investigate, indict, and when possible apprehend and bring to trial those officials of the Iraqi regime responsible for atrocity crimes. Branding properly investigated Iraqi officials as indicted fugitives of an international criminal tribunal would have done far more to isolate and discredit them (both internally and abroad) than any political condemnation from western capitals or the United Nations on what has proven to be a false reading of any WMD threat from Iraq.
There likely would have been support for such an initiative during the fall of 2002 when Security Council members were prepared to get tough with Baghdad, but wanted the basis for their action to be both credible and lawful and to be viewed as such by the public. With American and British military intervention looming, France and Germany could have pointed to the judicial cases unfolding against Iraqi officials as the stronger basis to support ultimate action to replace the regime, particularly after a further phase of WMD inspections. The legal memoranda prepared by lawyers in the British Government in 2002 and early 2003, reported in recent months, might have read somewhat differently if there had been a basis in law to apprehend Iraqi officials indicted by an international criminal tribunal established under UN Charter Chapter VII authority. The U.S. Congress, which had long sought the indictment of Saddam Hussein, might have strengthened the use of force authorization in the much-debated language of the Authorization for Use of Military Force Against Iraq Resolution of 2002 by including a law enforcement component to it, drawing, in fact, on prior Congressional resolutions seeking to bring Saddam Hussein to justice. The preparation for judicial investigations and prosecutions would have been much further advanced and strengthened with international participation and support by the time of an intervention than proved to be the case once the largely American cast of investigators finally began their work in earnest during the occupation.
By September 2002 the evidence of atrocities was significant and far more convincing than all the so-called intelligence about suspected WMD capabilities. It was remarkable following the March 2003 intervention when journalists, the Coalition Provisional Authority, the White House, and the Pentagon reported the discovery of mass graves and torture chambers as if these had never been anticipated and the allegedly criminal actions of the Iraqi regime were being exposed thanks to the Anglo-American intervention. Anyone who worked the Iraq account during the 1990’s had reason to believe that torture chambers existed and that mass graves had to dot the landscape of Iraq to account for the reported hundreds of thousands of victims of the regime during the 1980’s and 1990’s. The real question was where the torture chambers and mass graves would be located and how many bodies of what identity would be found within the graves. The discovery of such sites is important as evidence for trials and for the historical record in Iraq, but the discoveries themselves should have nothing to do with ex post facto justifications for the intervention.
Whatever evidence of atrocity crimes might have justified—at least to some—a humanitarian intervention or law enforcement intervention into Iraq in 2003 already existed on the public record at the time. The critical issue would have been, if raised, whether there was sufficient political will to rely, to a significant degree, on that kind of evidence backed up by the investigations of an international criminal tribunal rather than only WMD suspicions to authorize military action. The political will to act based on the extensive record of atrocity crimes as the target of an international criminal tribunal and some of which reportedly were continuing in Iraq, may not have emerged by March 2003. However, the international tribunal’s mandate and initial investigations might have provided the additional justification to garner enough Security Council support (or acquiescence) for an alternative path, proposed by (non-permanent Security Council member) Chile in early March 2003, to give the UN weapons inspectors a final though limited opportunity to complete their work within a deadline set by the Council, failing which coalition action would have been authorized.
Perhaps that is too much of a “what if” stretch. But in my view the alternative U.S. strategy should have been to seize the day in September 2002 to build the court that would have created a law enforcement context for the Security Council’s further deliberations on Iraq and its WMD capabilities. The debate in the Council and the final Anglo-American decision to intervene relied instead on a fundamentally flawed WMD assessment of Iraq. It was only in the aftermath when, several months later and lacking any WMD discoveries, the alleged criminal character of the Iraqi regime emerged in Bush Administration briefings as a growing and perhaps primary rationale for the intervention, as if such news was a discovery we should all credit to the intervention and occupation, and then somehow deduce that it was the rationale all along for Operation Iraqi Freedom.
So “what if” an international criminal tribunal on Iraq had been established by the Security Council? It could have been structured to include significant participation by Iraqi judges, prosecutors, investigators, and defense counsel following the intervention. It could have authorized that trials ultimately to be held or continued in Iraq when the security situation permitted. It could have attracted technical and financial support from Europe, Latin America, and the United Nations rather than be dependent on the support of one of the occupation powers, the United States. It would have been independent of any meddling domestic political influence or perceptions of victor’s justice.
But “what if” is a strictly historical perspective. The Iraqi Higher Criminal Court is here to stay and it deserves the best efforts of all who are invested in its pursuit of justice.
Posted @ 9:23 AM | Experts Debate the Issues: The Dujail Trial
