Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (45 page)

Long before the onset of war, international human rights organizations and Iraqis in exile had begun discussing the idea of establishing a truth commission in Iraq to confront the massive human rights abuses of the Saddam era.
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Such a commission could serve several purposes. First, unlike judicial proceedings against a small number of past offenders, an officially sanctioned truth commission could outline the full responsibility of the past regime and its various institutions that carried out or condoned the repression, including not only the military and the police, but also the judiciary itself. Second, a truth commission could provide victims with a forum to have their suffering acknowledged and help explore the possibility of providing reparations. Third, it could gather and analyze a vast amount of evidence from organizations and individuals both in and outside Iraq, with the aim of creating an “official” account of crimes against humanity and
genocide, such as the
“Anfal” campaign and the killing and displacement of Marsh Arabs. Fourth, a truth commission could help promote tolerance and reconciliation within Iraqi society without sacrificing accountability or ignoring already existing divisions. Finally, an Iraqi commission could explore the role of external actors in preventing or enabling human rights abuse.
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For a truth commission to succeed in Iraq, as in any country, it must be regarded by a broad cross‐section of society as legitimate and independent from extraneous political factors; otherwise, it risks being marginalized or having a polarizing effect. In their 2003 survey of Iraqis,
ICTJ and Berkeley researchers found that legitimacy and public support for a truth‐seeking process in Iraq would only emerge through an open, transparent, and inclusive process of public consultation and education. “Among Iraqis in Iraq, there is little knowledge of or exposure to the idea of a truth commission, and not much exposure to other countries' experiences,” the researchers said. “Thus, educating the emergent forces of Iraqi civil society, religious and community leaders, representatives of ethnic groups, and a broad cross‐section of Iraq's (highly literate) population is an indispensable first step.”
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Respondents in the
ICTJ–Berkeley survey were quick to suggest their own version of how a truth‐seeking process should be conducted. Among the suggestions were “establishing local committees of reputable individuals to gather testimony and document the names of the dead and missing . . . declaring days of remembrance as national holidays; establishing memorials in every town and region; creating museums and documentation
centers, photographic and videographic displays, and artistic works of literature, cinema, and theatre; and preserving detention centers and instruments of torture.”
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By September 2004, neither the
CPA nor the Iraqi Governing Council had consulted the Iraqi people about the need to establish a truth commission. Even so, CPA officials, largely at the urging of
Bremer, had debated the merits of creating such a truth‐seeking body since the Special Tribunal was established in December 2003. In early 2004, as a split emerged between the British and the Americans on the question of the
Special Tribunal's application of the
death penalty, the British made clear that they would not be able to play any direct role in supporting the tribunal process. As a result, it was agreed that, within the
CPA's office for human rights and transitional justice, an American would oversee the tribunal's work and a British “advisor”, working closely with the newly appointed Iraqi Minister for Human Rights, would oversee the process of establishing a truth commission.

In February 2004, one of us (Hanny Megally) met with British and Iraqi officials, including the human rights minister, and representatives of Iraqi civil society to discuss the need for consultation among Iraqis and coordination of the various transitional justice mechanisms being brought into play in Iraq. To their credit the British and the human rights minister accepted that such a process should not be rushed and would be doomed to failure if the CPA failed to consult the Iraqi people. However, in the ensuing months, as US troops sank into the quagmire of Falluja,
Bremer, in need of a success story, applied intense pressure on his underlings to draw up plans for a truth commission and to have commissioners appointed to it by the July deadline for the handover of power to an interim Iraqi government. At one point Bremer's office set a ten‐day deadline for a blueprint for a commission to be on his desk, but the task was never completed.

At the time of writing, the present Minister of Human Rights, Bakhtiar Amin, has declared the need for a truth commission and expressed his interest in helping set one up. It remains to be seen whether, and, if so, in what way, he will seek wide consultation among the Iraqi people before such a decision is made. In light of the ongoing friction in Iraq regarding the presence of US and coalition forces and the religious, ethnic, and social fault lines that persist, confidence in a non‐partisan and impartial truth‐seeking process will have to be built from the ground up. And it must involve all sectors of Iraqi society so that it is not perceived as a dialogue only between “elites” or certain
political and ethnic groups.

History has shown that reparations in the form of material and symbolic compensation are essential for victims of massive violations of human rights. They can be as fundamental as one‐time financial payments to individual victims or collective processes, such as public memorials, days of remembrance, parks or other public monuments, renaming of streets or schools, preservation of repressive sites as museums, or other ways of creating public memory. They can encompass education reform, the rewriting of history texts, and education in human rights and tolerance. Yet whatever reparations scheme is pursued, writes Naomi Roht‐Arriaza, caution must be taken not to use it “to stigmatize and marginalize those groups whose members perpetrated the abuse. Reparations must be offered in ways that acknowledge the suffering of victims but do not victimize others who did not actively engage in the violence.”
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According to the 2003
ICTJ–Berkeley survey, while Iraqis overwhelmingly supported material and symbolic compensation for victims of violations of human rights, they did not necessarily support single‐instance ex gratia financial payments.
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Many respondents recognized that the losses suffered were incalculable and that no amount of money could replace a family member (or, in some cases, an entire family) who was killed by the regime. Respondents suggested forms of reparations that included providing physical and mental health services and access to education and employment, meeting basic needs for shelter, food, and clothing; returning confiscated property; and memorials inscribed with victims' names. The vast majority of respondents believed that the financial costs of reparations should be borne by the Iraqi state.
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The
CPA withdrew from Iraq without paying serious attention to the issue of reparations for abuses committed by either the past regime or the US occupiers. Indeed, it was not until May 26, 2004, five weeks before the handover of power to the Iraqis, that Bremer sought to establish a special task force on reparations for past crimes. “No government or any other institution can erase these past abuses or remove the scars they have left behind,”
Bremer said. “However, compensation can provide an element of justice to those who suffered under Saddam's brutally oppressive regime.”
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Bremer appointed
Malek Dohan Al‐Hassan, then head of the
Iraqi Bar Association, as chair of the task force and instructed him “to work with victims, ministries, and others to define the types of injustice for which compensation should be provided.” The group was also tasked to decide who would be eligible for compensation, the level of compensation that should be given, and the mechanisms through which it
should be delivered.
Bremer pledged to provide the task force with $25 million for initial compensation payments to victims and to cover the group's operating costs.

In a telling penultimate paragraph to the press release, the CPA notes that “in order for this to be a fully Iraqi process, the
CPA has asked that Dr. Malek's report be concluded by August 1, 2004 so that it can be provided to the Interim Government as soon as possible after the transfer of sovereignty. Iraq's leaders, in the best interests of the Iraqi people, will determine how to act on the recommendations.” In essence the task force was given just over two months to learn about the intricacies of reparations, study examples from around the world, conduct its own survey within Iraq, educate victims and families, and present its conclusions and recommendations to the interim authorities. Such a truncated process could hardly do justice to such a complex and potentially explosive issue as reparations. Indeed, soon after Bremer's edict, Malek Dohan was appointed Minister of Justice; a month later, the CPA had ceased to exist and by the end of August the task force had not yet met or begun its work. In December, at the time of writing, the taskforce had held its first meetings and begun to
assess the process by which they would study other experiences around the world.

In his study of post‐World War II Japan, historian John Dower noted how profoundly the American occupation affected that defeated nation: “Much that lies at the heart of contemporary Japanese society – the nature of its democracy, the intensity of popular feelings about pacifism and remilitarization, the manner in which the war is remembered (and forgotten) – derives from the complexity of the interplay between the victors and the vanquished.”
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How an occupying power interacts with the people of a postwar nation can affect that society for decades to come. Unfortunately, the American occupiers of Iraq never comprehended how Iraqis perceived them. Larry
Diamond writes:

 

The coalition lacked the linguistic and area expertise necessary to understand Iraqi politics and society, and the few long‐time experts present were excluded from the inner circle of decision‐making in the
CPA. Thus the coalition never grasped, for example, the fact that although most Iraqis were grateful for having been liberated from a brutal tyranny, their gratitude was mixed with deep suspicion of the United States' real motives (not to mention those of the United Kingdom, a former colonial ruler of Iraq); humiliation that the Iraqis themselves have proved unable to overthrow Saddam; and unrealistic expectations of the postwar administration, which Iraqis expected to quickly deliver them from their
problems. Too many Iraqis viewed the invasion not as an international effort but as an occupation by Western, Christian, essentially Anglo‐American powers, and this evoked powerful memories of previous subjugation and of nationalist struggles against Iraq's former overlords.
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Lacking an effective political strategy for postwar Iraq, it is easy to understand why the transitional justice mechanisms introduced by the CPA either backfired or were hopelessly flawed. The
CPA never understood – or even listened to – the people it was seeking to help. Instead, it adopted an
ex cathedra
approach by which Bremer alone dictated what mechanisms would be adopted. In the case of documentary and physical evidence for future trials, the US‐led coalition forces failed to secure the relevant sites at the time of the overthrow of the former government. Nor did they put in place the professional expertise and assistance necessary to ensure proper classification and
exhumation procedures, with the result that key physical evidence has been lost or tainted. These failures have also frustrated families of the missing who, after years of silence, wish to know the fate of their loved ones.
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Having invaded Iraq without UN Security Council authorization, the United States was unable to convince many countries to take a meaningful role in helping Iraq deal with its violent past, something that could have blunted suspicions of the coalition. Always insisting that it would “go it alone,” the CPA implemented accountability measures without properly consulting the United Nations and international human rights organizations, such as Amnesty International,
Human Rights Watch, and the International Center for Transitional Justice, all of which possess considerable experience and knowledge of international and national war crimes tribunals. By sidelining these institutions, the
CPA deprived Iraqi jurists charged with drafting the statute for the
Special Tribunal of a wide range of perspectives on the procedural, evidentiary, and jurisprudential aspects of war crimes trials and the “lessons learned” from vetting and lustration programs in other countries.

It is difficult to measure how the photographs of torture and inhuman and degrading treatment of Iraqi detainees held in Abu Ghraib and other US detention facilities affected the attitudes of ordinary Iraqis toward the
CPA and the transitional justice mechanisms it introduced during the occupation simply because no rigorous polling was conducted on that issue at the time. But it stands to reason that the photographs, which were widely circulated in the Iraqi press and repeatedly broadcast by
Al‐Jazeera and other news outlets in Iraq, must have undermined the legitimacy and authority of the US occupation in the minds of a considerable number of Iraqis. Moreover, the mass arrests of Iraqi men by US and Coalition forces in the second half of 2003 must have further
undermined the legitimacy of the US occupation, especially as 70 to 90 percent of those who were taken into custody, according to military intelligence officers with the Coalition forces, “had been arrested by mistake.”
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Clearly, the US‐led coalition faced numerous demands when it took military and administrative control of Iraq in April 2003. It needed to quell a growing insurgency and to give immediate attention to numerous infrastructure, public health, and safety needs. By the same token, public statements by the Bush Administration both before and during the occupation placed a high priority on giving Iraqis back their dignity and a stake in their own future. American officials in Washington and Baghdad repeatedly promised to restore the rule of law in Iraq and to hold past human rights offenders accountable. These were lofty pledges, pledges that many Iraqis across the country, as well as many living abroad, embraced.