First Published: 2003-12-11

Fear of Iraqi war crimes tribunal's credibility

Legal experts fear Iraqi war crimes tribunal could be seen as 'US puppet show', propose UN role in trials


Middle East Online

By Stephanie van den Berg - THE HAGUE

The war crimes tribunal set up by Iraq's US-installed interim leadership smacks too much of victor's justice, say experts on international law, who fear its credibility will be undermined.

"Our concern is that behind the veneer of an Iraqi-led process it will really be the United States that will be calling the shots," Reed Brody, an expert on international prosecutions for Human Rights Watch said.

On Wednesday the Iraq's Governing Council in Baghdad announced the establishment of a special tribunal to try war crimes perpetrated under Saddam Hussein, who was ousted eight months ago by US-led forces.

Legal experts agree that Saddam should be brought to justice for the massive crimes he has committed against the Iraqi people, but fear that the new court could be seen as "a US puppet show", according to Brody.

The statute of the court is not yet known, but the council said it would be based on Iraqi law as well as international law with Iraqi judges presiding.

Iraq's penal code does not recognise genocide, war crimes or crimes against humanity, and those crimes are expected to be tried on the basis of international law. The court will also be able to try fugitives, like Saddam, in absentia.

"A trial of Saddam Hussein in absentia would really be a show trial, a pretext by the US and the Iraqi opposition to justify the US-led attack on Iraq," says John Jones, a London barrister who has worked with the UN war crimes courts for the former Yugoslavia and Rwanda and was the chief of the defence office in the UN-backed Sierra Leone war crimes tribunal.

If the council decides to reinstate the death penalty, as it is said to be considering, the court "will really fall foul of international standards", he added.

Other concerns are being raised about the special court, including finding enough Iraqi judges and prosecutors that will be seen as impartial - untainted by Saddam's regime or seen as US stooges.

"It will be very difficult to find people who have clean hands," Avril McDonald, with The Hague-based T.M.C. Asser Institute for legal studies, said.

She also points out practical problems.

"I do not think the country is ready for it, things need to calm down there. You cannot secure the protection of witnesses and court officials," McDonald explained.

Everyone that will go before the court either as a witness or a defendant will be a target, she said.

"If you cannot protect a Red Cross building how will you protect a court?" she asks.

Experts agreed that the Iraqi tribunal should work with the United Nations to ensure that trials will be impartial.

"Bring it under the UN and take it away from the Iraqi governing council, which is a political organ, and the US," Jones recommends.

Human Rights Watch also proposes a role for the UN with Iraqi judges and prosecutors mixed with international judges and prosecutors who are used to trying war crimes cases.

"The only way to set it up is hold it in another country and internationalise the process," McDonald agrees.

As an example they point to the war crimes tribunal in Sierra Leone which is UN backed but not a UN institution like the courts for the former Yugoslavia and Rwanda and based on a mixture of international and national law.

The newly created International Criminal Court (ICC), which began work in July 2002, cannot deal with war crimes or crimes against humanity in Iraq as neither the United States nor Iraq has signed the statute and the court has no jurisdiction over countries that are not parties to the court.


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