Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (43 page)

In the meantime, hundreds of thousands of Iraqi state documents that could have proven critical in future trials of suspected human rights offenders were lost or destroyed.
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While US and coalition forces reportedly seized an estimated nine linear miles of documents, many other files were pilfered, looted or otherwise destroyed needlessly, resulting in the loss of potentially vital information. Some of the destruction took place in the context of the widespread looting in Baghdad and elsewhere, carried out within sight of the coalition troops which had apparently received no instructions about securing this material or protecting the premises in which it was found.

Not only was valuable trial evidence being lost, but the failure to protect security archives had the potential of contributing to retaliatory violence and vengeance killings, since the archives could identify thousands of security agents and informers by name. Moreover, a thriving trade in the sale and purchase of Iraqi state archives had emerged in Baghdad and other major cities. The representatives of three Iraqi political parties admitted to us that that they had purchased documents – in some cases on the open market, in other cases when approached by individuals hoping to make a quick sale. One estimated that the number of documents bought through individual sales accounted for as much as forty percent of his party's total collection. Under these conditions, it
was likely that a substantial number of faked or forged materials were being injected into the documentation pool.

Amidst this chaos, international human rights groups called on the UN Security Council to appoint a commission of experts, as it had done for the former Yugoslavia and Rwanda, to recommend the best option for moving ahead with a tribunal. While the idea of a commission received the enthusiastic backing of the UN Secretary General's Special Representative to Iraq,
Sergio Viera de Mello, it failed to gain traction in the Security Council. In April 2003, the Bush administration announced plans for an “Iraqi‐led” trial process and, three months later, the
IGC established a judicial commission to set up a special court to investigate and prosecute former government officials.

It was clear from the start that the Iraqi commission and its backers in Washington, DC had little appetite for anything other than an all‐Iraqi court, a position that troubled many international human rights groups. “The Iraqi judiciary, weakened and compromised by decades of Ba'ath party rule,” wrote
Human Rights Watch in December 2003, “lacks the capacity, experience, and independence to provide fair trials for the abuses of the past. Few judges in Iraq, including those who fled into exile, have participated in trials of the complexity that they would face when prosecuting leadership figures for acts of
genocide, crimes against humanity, or war crimes.”
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Yet the prevailing view in Baghdad and Washington was that any future tribunal, with the exception of defense lawyers, had to be purely Iraqi. Some Iraqi jurists said that seeking assistance from international experts would be acceptable, but only for the purposes of sharing expertise with their Iraqi counterparts. Others said that the plethora of evidence of past crimes, in the form of forensic, documentary and testimonial evidence, would make the task of convicting members of Saddam
Hussein's government a relatively simple affair. They accepted the notion of seeking international expertise to help in the investigative stage, and especially in the effort to gather forensic evidence from mass graves, but rejected the idea of having foreign jurists involved in any forthcoming trials. Privately, some Iraqi political leaders supported an international tribunal, while others were prepared to consider the option and ensure that it was discussed by the
IGC.

Notwithstanding Iraq's strong and legitimate desire to be in charge of its transitional justice process, few if any Iraqi jurists, including those who had returned from exile, were knowledgable about recent developments in the field of international criminal justice. Effectively shut off from the outside world for decades, they knew little about the newly established International Criminal Court (ICC) or the ad hoc
international tribunals for Rwanda and the former Yugoslavia. Nor did they have access to the jurisprudence generated by the ad hoc courts on topics like command responsibility, joint criminal enterprise, and complicity doctrine. To compound matters, Iraqi courts had virtually no experience dealing with complex criminal trials involving serious crimes under international law. Iraq's Penal Code, adopted in 1969, made no mention of war crimes, crimes against humanity or genocide.
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Much of the antipathy toward international participation in Iraq's transitional justice process was due in large measure to the Bush Administration's opposition to the
ICC and any involvement by the
United Nations in Iraq's internal affairs.
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The United States also turned a cold shoulder to the expertise and considerable experience of non‐governmental human rights organizations like
Amnesty International,
Human Rights Watch, and the International Center for Transitional Justice, which were concerned that the flaws of the new tribunal would be locked into place once the first trial began. During the summer and fall of 2003, the CPA and the
IGC legal affairs committee consistently denied requests by these groups to comment on drafts of the law establishing the
Special Tribunal. In private, some CPA officials said that they supported greater international consultation, and even recognized the merits of a hybrid (national‐international) tribunal. But, in the end, they succumbed to the desire of Iraqi jurists and politicians who wanted to manage the process themselves. Some CPA officials felt the drafting process, because of political considerations, was moving too fast, and that consultations had in fact been very limited. In late September 2003, the CPA announced that the consultation process was over and all that remained was some “fine‐
tuning” of the text before it was to be sent to Paul Bremer.

Bremer signed the order establishing the
Special Tribunal on December 10, 2003.
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In their critique of the court's statute, Human Rights Watch noted that many of its provisions were in accord with international standards of human rights and international humanitarian law and that the definitions of punishable crimes were consistent with those contained in the statutes of the
ICC and other international criminal courts. But the organization also criticized the Statute for disregarding essential fair trial guarantees, including the admission as evidence of confessions obtained through coercion. It also said the statute failed to set standards that would insure that judges and prosecutors possessed adequate experience and could function in an independent and impartial manner.
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The organization called on the United Nations not “to lend its legitimacy and expertise” to what it called a “fundamentally flawed” tribunal
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that was
inherently vulnerable to political manipulation.

One of the most contentious issues surrounding the Special Tribunal's statute was the use of the death penalty.
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Some UK officials based in Baghdad objected to its inclusion, especially as Paul Bremer had suspended its application for the duration of the occupation. Yet, these same British officials said that there was little they could do given the US government's support of the
death penalty
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and strong Iraqi public opinion in favor of its use against past human rights
offenders. For their part, Iraqi political leaders we spoke to, while recognizing the necessity of breaking with a violent past, believed that the desire of Iraqis for retribution through the application of the death penalty far outweighed the financial benefits of gaining international acceptance of future trials. In the meantime, international human rights organizations argued that the Special Tribunal's use of the death penalty would send the message that the court
wished to exact vengeance rather than render justice.
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By early January 2004, a month after the establishment of the Special Tribunal, it had become clear that neither the Iraqi authorities nor the CPA had taken sufficient steps toward the gathering and preservation of court evidence. Nor had they identified “local talent” that could work with international experts in the preparation of evidence for the trials. As a result, Washington dispatched a team of legal advisers to Baghdad to assess what needed to be done. The team, led by the State Department's Ambassador for War Crimes, Pierre‐Richard
Prosper, was comprised of legal advisers from the
Department of Justice and the
Department of Defense. The team had set out four priorities for its visit: (1) to advise the Iraqis on how to launch “a campaign to sell the tribunal to the Iraqi people” as a prelude to the gathering of testimonial evidence by investigators; (2) to find an administrator for the Special Tribunal as a first step towards its institutionalization; (3) to advise the Iraqi officials on appointments of both Iraqi and international investigators for the tribunal; and (4) to make security arrangements for the protection of tribunal personnel, particularly judges, prosecutors and investigators.

Prosper's trip led to significant changes in the US government's backstage handling of the Special Tribunal. In late January 2004, the US Department of Justice, with a budget of US$75 million, took primary responsibility for preparing prosecution cases against Saddam
Hussein and other members of his government. In March, a Regime Crimes Liaison Office (
RCLO) was established under
CPA authority to take responsibility for gathering, organizing, and assessing the evidence to be used in the trials. It also assumed the responsibility of training personnel with the Special Tribunal. In late May, Greg Kehoe, a US attorney with
ICTY prosecutorial experience, was appointed as RCLO Adviser and deployed in Baghdad.

US officials in Baghdad told us that they had every desire to “internationalize” the tribunal's team of advisers. Yet this aspiration failed to materialize. Some US officials acknowledged that non‐prohibition of the
death penalty in the tribunal's statute had discouraged some European experts who opposed capital punishment from coming forward, but that a way had been found around it, such as having the UK and others contribute administrators and advisers to judges, as opposed to prosecutors. The US contribution, by contrast, would consist mainly of analysts, investigators and security personnel. Department of Justice officials reiterated their commitment that it be an Iraqi‐led process with an “advisory role” for the United States.

By September 2004, with more than forty of Iraq's most wanted war criminals including
Saddam Hussein in custody, the Special Tribunal was in a state of disarray.
Salem Chalabi, the American‐educated lawyer who had been the court's chief administrator, had resigned and left the country. The court's rules and procedure had not been finalized. Efforts to find suitable jurists and prosecutors had resulted in only eleven appointments, far less than needed to investigate and try suspects charged with serious state crimes.
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When Saddam
Hussein and eleven other co‐defendants were arraigned on July 1, 2004, the Special Tribunal was not in a position to take on the task. Instead, the arraignments took place under the jurisdiction of another CPA‐established court, the
Central Criminal Court of Iraq, applying Iraq's penal code rather than the Special Tribunal's statute. Several of the defendants, including Ali Hassan al‐Majid, who is alleged to have led the chemical weapons attacks on Halabja on March 16, 1988 that killed at least 5,000 people, had sought legal counsel from elsewhere in the Arab world, but none had come forward.
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The Special Tribunal lacked a comprehensive plan for the collection, preservation, and analysis of physical and documentary evidence of past crimes. Since the overthrow of the Iraq government in April 2003, over 250 mass graves had been located across Iraq. Some are believed to contain the remains of thousands of victims, including entire families. By mid‐October 2004, in the face of a deteriorating security situation, only two large‐scale forensic investigations of mass graves had begun in Iraq, despite the
CPA's initial plan to have several sites completed by the turn‐over of power to the Iraqis at the end of June. Similarly, the Special Tribunal, through the US‐led Regime Special Crimes Office, was still negotiating with Iraqi non‐governmental organizations and political parties to gain access to the state archives in their possession. If and when the court took possession of the documents, it would need to verify
their authenticity and to link the information contained in them to individual suspects.
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In the meantime, interim
Prime Minister Ayad Allawi had let it be known that he wanted the Special Tribunal to speed up its investigations so the first high‐profile trial, probably against al‐Majid, could begin in November 2004. Asked to comment on the prime minister's call to accelerate the trials, Greg Kehoe, an advisor to the special crimes office replied (ironically), “He certainly didn't consult with me first.”
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Kehoe doubted whether the court would be ready to begin its first trial until the first half of 2005. The key in each case was establishing “command responsibility” for systematic and widespread killing that occurred under
Hussein's rule, and that, he said, was a very “complex issue.”

Aware of the Special Tribunal's shortcomings, the US government sponsored a week‐long training program in international humanitarian law for 42 Iraqi judges and prosecutors – almost the entire Special Tribunal – in October 2004. Citing serious doubts that the court could meet “relevant international standards,” the
UN Secretary General, Kofi Annan barred top prosecutors and judges from the UN war crimes tribunal for the former Yugoslavia from attending the training program. A newspaper correspondent who was allowed to attend the seminar reported that both the Iraqi jurists and their hosts admitted that they had little grasp of what one Iraqi judge called “this whole new body of law.” Three Iraqi judges told the correspondent that they felt caught between international public opinion and the opinion of ordinary Iraqis. The judges wanted experienced judges from other nations to sit on the bench with them but feared that many Iraqis
would see this as humiliating.
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