(Un)Civil Societies Report: February 23, 2004

23 February 2004, Volume 5, Number 6

IN FOCUS

SEEKING JUSTICE IN IRAQ... Since the announcement of the 30 June deadline for the U.S.-led Coalition Provisional Authority (CPA) to turn over the governing of Iraq to Iraqis, there have been intense discussions in Iraq and abroad about the kind of legal system the war-torn nation will have and how justice will be dispensed for current offenses and for past crimes. Restoring law and order in the face of repeated suicide bombings and stemming street crime are the most visible and urgent needs not only for Iraqis but scores of internationals attempting to help them.

They all recognize that underlying the difficult project of re-establishing the rule of law is the need for justice for the crimes of deposed Iraqi President Saddam Hussein and others responsible for the massive human rights violations of the last 30 years. These include the extermination of approximately 100,000 Iraqi Kurds in the Anfal genocide, using chemical weapons; the massacre of tens of thousands of Shi'a in the 1980s; the killing and decimation of the culture of the Marsh Arabs of southern Iraq; and the arbitrary arrest, torture, rape, and other gross human rights abuses against opponents of the Ba'ath Party and even regime officials deemed insufficiently loyal.

In December, the Iraqi Governing Council issued a statute for an Iraqi special tribunal to try crimes against humanity from the period of 7 July 1968 to 1 May 2003 on Iraqi territory or elsewhere including crimes committed in connection with Iraq's wars against Iran and Kuwait. The tribunal has jurisdiction over Iraqi nationals or residents accused of crimes committed during that period on Iraqi territory (Article 1b).

By establishing a tribunal on Iraqi soil empowered only to try Iraqi citizens and residents, the Governing Council and its supporter, the CPA, rejected the notion of trying the occupying powers themselves for the war itself or prewar sanctions. Politicians over the years have called for trying Hussein and other leaders of the regime in an international court, but have sometimes been confused about the venue. The International Criminal Court, which went into force in July 2003 when 60 signatories had ratified its statute, cannot have jurisdiction over Iraq because Iraq did not sign and ratify it. In any event, even with special dispensation from the UN Security Council, the International Criminal Court cannot deal with crimes that precede July 2003. The World Court in the Hague deals only with complaints between states.

The special tribunals in Rwanda and in The Hague for the former Yugoslavia were established by special UN Security Council resolutions. The Special Court in Sierra Leone, while local in nature, was established through a UN agreement and supported by the United States and other Western nations financially. Some Western human rights groups have severely criticized the national approach developing in Iraq, even as they recognize that the best kind of justice is that nationally dispensed, if conditions are fair and impartial. They would like to see either an international tribunal or a local one with mandatory international participation; otherwise, they fear, the sentences that emerge from the tribunal will appear as "victor's justice" and fail to gain legitimacy in the eyes of the world.

Iraqi exile groups and legal experts in the country have, on the other hand, angrily rejected the presumptions of Western groups in claiming that they do not have the capacity to administer justice and handle their nation's own legacy of war crimes. They do not understand why they should face the drawbacks of delays, expense, and distance experienced by citizens of Rwanda and the Balkans in dealing with their crimes against humanity.

Since Hussein's capture, some international legal experts have also weighed in for a national trial. Christopher Greenwood, a professor of international law at the London School of Economics, wrote in "The Guardian," "it is patronising for lawyers in the rest of the world to leap to the conclusion at this stage that the Iraqis are incapable of staging a fair trial."

On the "Jim Lehrer News Hour" on the U.S. PBS network on 16 December, a group of U.S. and Iraqi lawyers debated the type of justice that would be legitimate for Iraq. Replying to the vigorous calls of U.S. human rights activists such as Richard Dicker of Human Rights Watch to internationalize the justice process, Faisal Istrabadi, vice president of the Iraqi Forum for Democracy, said he was "stunned" to hear the complaints of the international human rights community about Iraqi courts now. "Saddam Hussein's courts have been operating for 35 years handing down horrendous punishments for minor crimes, imposing the death penalty for minors almost for misdemeanors and I have not heard any outrage on the part of the international human rights legal community, nor a questioning of the legitimacy of the courts of Saddam Hussein."

Paul van Zyl of the International Center for Transitional Justice denied Istrabadi's claim, speaking on the Lehrer show, saying that groups like Amnesty International and Human Rights Watch had always denounced Hussein's human rights crimes, "before it became fashionable or politically expedient to do so." Van Zyl and others who question the abilities of Iraqi judges are not entirely dismissing the claims of Istrabadi and his colleagues about their own competence, but say international helpers are needed because of the complexity and the enormity of the task of sifting through mountains of evidence to try war crimes.

These groups' publications from the 1990s are proof that indeed they denounced Hussein's legal system. For example in 1997, Human Rights Watch commented about execution of Jordanians, "In stark contrast to the rest of the world, which is moving to abolish the death penalty, Iraq is increasing the number of crimes punishable by death."

Istrabadi's words had an emotional truth, however, in that some Western human rights and humanitarian groups have focused in the last decade not on Saddam Hussein's crimes against his people, but on the effects of UN sanctions on the population and the problems of the UN's "oil-for-food" program. Such groups debated the legality of sanctions and had a lot to say about their views of the illegality of the war in 2003, but had been rather silent when it came to questioning the horrors of Hussein's trials and prisons before the war. Exiles kept abundant records of atrocities over the years, which they gathered from new emigres and relatives, in the hopes that some day, they might see justice in their homeland. But U.S. lawyers did not always find their material credible, and human rights groups stayed away from their congresses to avoid the appearance of politicization.

Precisely because Hussein's regime was so brutal, few Western groups could safely gain access to Iraq to perform extensive human rights investigations. Yet some did accomplish this feat, compiling vast dossiers of evidence, i.e. Human Rights Watch's work on the Anfal genocide.

INDICT (http://www.indict.org.uk) is a group established in 1996 to campaign for an ad hoc international tribunal to try leading members of the Iraqi regime, funded in part by the Iraq Liberation Act of 1998 passed by the U.S. Congress. INDICT claims success for persuading the International Olympic Committee in 2002 not to accept the Iraqi Olympic Committee of the time headed by Uday Hussein. They tied their human rights monitoring to short-term political actions of this type to erode the regime's credibility, the kind of action that often has to precede an international justice effort.

INDICT formed a working group of Iraqi lawyers and judges who prepared plans for war crimes trials and collecting evidence and prepared legal briefs. They focused on the 12 senior leaders of the regime they say are responsible for war crimes.

The Iraq Research and Documentation Foundation, a project of the Iraq Foundation, has amassed documents, including some now coming to light since the invasion of Iraq, that help scholars and lawyers understand the structure of the regime and the machinery of repression. Kanan Makiya, an Iraqi dissident who left Baghdad in 1968 to study at the Massachusetts Institute of Technology, has returned to his homeland a number of times. In 1991, he was able to secure a large quantity of documents from Kurds in northern Iraq, and since the war last year, has returned again to continue his work in creating and analyzing the permanent record of atrocities.

The documents, available in English and Arabic, are likely to have great meaning to Iraqis looking for the names of perpetrators and validation of their experiences. They contain chilling evidence of the brutal mindset of the regime and its casual extermination of enemies. One directive sent out from Baghdad, for example, was "concerning the names of the rotten heads who have been causing disturbances in Rawanduz." A Ba'ath official wrote back, "Mission accomplished and we are still serious about liquidating the rest of them." The terminology and method are taken from the handbooks of Hitler and Stalin.

A working group on transitional justice in the United States, funded by the U.S. State Department-supported Future of Iraq Project, has been involved since July 2002 with the Iraqi Jurists Association (IJA), made up of judges and lawyers living in exile, some of whom are now returning. They produced a 300-page plan of action and have discussed it with colleagues, including at a conference in May 2003 at the U.S. Institute for Peace and posted by the institute on its website. Sermid al-Sarraf, a member of the IJA, says it is the largest such group of attorneys, judges, scholars, and other jurists outside of Iraq. Many of them have experience working in U.S. or European legal systems. At the May conference, he sketched out the areas of truth, accountability, reconciliation, legal reform, and institutional reform that will have to be addressed in the coming months and years.

Abdul Mun'im al-Khatib, another IJA member, noted that there was a "culture of impunity" in Iraq that had "dramatically undermined the faith of the Iraqi people" in their government. "They [Ba'ath party members] always got away with murder and the rest were always under threat of being captured," he said. He explained how crucial the effort to try the crimes of the past was to restoring the public's faith in the new judiciary system.

...WHERE GOVERNMENTS RUN HUMAN RIGHTS OFFICES... While human rights groups might not readily acknowledge it, one fruit of their victories in human rights struggles of the past decades is that many governments now have formal human rights offices. In Iraq, we may be seeing for the first time in history countries at war establishing human rights and justice offices on the ground to address past injustice and present ongoing complaints, particularly as the combat operations end and reconstruction begins.

In Iraq, both the United States and United Kingdom have invested considerable funding and effort into establishing such offices and projects, advised by some experts who were active in U.S. NGOs or exile associations before they contracted to work with the governments. Unlike the Balkan wars or East Timor, where international institutions like the Organization for Security and Cooperation in Europe or the United Nations handled human rights monitoring and reconstruction of the justice system, the occupying forces are themselves directly involved.

The British Foreign Office (http://www.fco.gov.uk) has helped the CPA to establish the Office of Human Rights and Transitional Justice (OHRTJ) to support the new Iraqi Ministry of Human Rights. It states its purpose is to "develop and promote a human rights culture in a country where many have been brutalised by the former regime." The office is training Iraqis and assisting them in organizing the prosecution of what they call "legacy crimes," the human rights violations of the past regime. They have helped create forensic teams who are currently assessing more than 270 reported mass graves, which are said to contain the remains of some 300,000 victims.

The CPA has also set up the Judicial Review Committee (JRC), whose task is to "review every judge and prosecutor in Iraq for membership of the Ba'ath Party, complicity in human rights violations, or corruption, to ensure that the Iraqi justice system is run by people of integrity." The JRC has a daunting task, but has already interviewed about 400 persons, dismissed 120, appointed 70, and is reviewing 100 dismissal appeals, according to the British Foreign Office.

A chief concern of international human rights advocates is the use of the death penalty. This was immediately suspended when combat operations began last year, and the United Kingdom says that it was "instrumental in securing the moratorium." When authority is turned over to a new interim Iraqi government, it will be up to them to reinstate capital punishment, but they are likely to find themselves under pressure from both members of the coalition in the EU as well as donors to keep it suspended.

The Foreign Office also says that new rights have been established, including the right to remain silent and have a lawyer, and the exclusion of evidence gained by torture. The coalition is said to be holding at least 5,500 prisoners now, and relatives have many complaints about failures to make good on these newly established civil rights, with local and international human rights groups and alternative media adding their protests.

One of the difficulties faced by both CPA authorities and human rights groups working on the excavation of mass graves is that grieving families have rushed forward to find their relatives to rebury them with dignity, without waiting for forensic analysis. They have had to be persuaded to halt the ad hoc exhumations so that evidence can be preserved and all victims' families might have access. Already, files documenting information about mass graves and human rights atrocities are said to occupy over 18 square kilometers of storage space.

The CPA has also helped reopen a refurbished Iraqi Judicial College. The JRC has been formed to vet every judge for allegations of Ba'athist links, corruption, complicity in human rights abuses, and other malfeasance. In September, the Council of Judges was created to oversee judges and prosecutors.

While government offices involved in human rights work raise problems of credibility and transparency, there is no question that the scale and rapidity of the work already achieved could likely not have been done by NGOs or international agencies, particularly because of the poor security situation.

...AND LEGAL EXPERTS DEBATE INTERNATIONAL ROLE IN IRAQ. Last week, a group of U.S. legal experts and human rights activists met at the Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee in New York. They hooked up by speaker phone to Faisal Istrabadi in Baghdad, who was originally hoping to attend the seminar in person, but was delayed in Iraq because he has been assisting Adnan Pachachi of the Iraqi Governing Council on the drafting of the Basic Law, which experts are due to complete by the end of February.

Participants in the seminar, including Richard Dicker of Human Rights Watch, spoke of the complexities of trying crimes against humanity, and their fears of the lack of capacity in Iraq. Nina Bang-Jensen of the Coalition for International Justice pointed out the shortcomings of justice in The Hague for people in the Balkans, where defendants were far away from their homelands.

Allison Cohen, international human rights officer of the Blaustein Institute, told "RFE/RL (Un)Civil Societies": "It's not as if there's such a huge pool of people with war crimes experience, it is a developing field. Iraqis are in the same boat as many other countries" in transition. (A background paper on the international justice issues and a summary of the seminar with Istrabadi may be obtained by e-mailing jbi@ajc.org.)

Nevertheless, enough lessons have been learned from other settings to know more about what is required for effective justice, national and international. While the various sides in the debate are not moving toward a consensus, they are participating more in dialogue about the concrete work of justice, apart from the auspices under which it will take place. The political reality is that the statute on the special court is already issued, and the United States would likely oppose a UN-controlled international court.

Ken Roth, executive director of Human Rights Watch, in the "International Herald Tribune" on 15 December called the decision to create a national tribunal "less a determination to see justice done than a fear of bucking Washington's ideological jihad against any further enhancement of the international system of justice."

Iraqis are thinking more close to home of the ideological jihad the Ba'athist regime waged against them for decades. "Let there be no doubt. The people of Iraq are yearning to punish the criminals who oppressed us, killed our family members and debased our national institutions. But we want justice, not vengeance," wrote Iyad Allawi, a member of the Iraqi Governing Council, in "The Washington Post" on 28 December. He said he spent a year in the hospital because Hussein sent his thugs to his home to kill him and his wife.

The text of the special-tribunal statute stipulates that only Iraqi nationals can serve as judges. Yet it does leave room, "if it deems necessary," for the court to appoint non-Iraqi judges who have experience in crimes against humanity "who shall be persons of high moral character, impartiality and integrity" (Article. 4b).

Activists are hoping that the United Nations will play the role of coordinating such international involvement, because they do not believe the United States has the credibility in Iraq or the region. Some Iraqi experts join them in this assessment, but they have also brought a strident critique to the UN for the years in which its local offices were inactive in the face of Hussein's atrocities. Currently, the CPA says they are leaving the question of justice to the Governing Council and its interim successor after 30 June.

The UN suffered a brutal blow on 19 August 2003 in the terrorist bombing of its Baghdad office staff , led by special envoy Sergio Vieira de Mello. The UN has still not returned in full force to Iraq. Currently, both the UN and the CPA have been preoccupied first with problems of security, and second with the controversies surrounding plans for elections and the transfer of authority. Few statements have been made on justice issues by the UN Office of the High Commissioner on Human Rights.

In December, acting High Commissioner Bertrand Ramcharan and Iraqi Human Rights Minister Abd al-Basit Turki met in Geneva for two days to discuss current human rights protection and "efforts to deal with past violations" which was all that was said about the special tribunal. The talks also addressed constitutional provisions on human rights and training of human rights trainers and establishment of a resource center. Ramcharan took the opportunity of the brief public statement on the meeting with the Iraqi minister to note that he had also consulted with the UN's Office of Legal Affairs on "issues regarding proportionality in the use of force by coalition forces in Iraq and compensation for excesses by those forces."

Before the bombing of the UN complex last summer, an assessment of the Iraqi justice system had concluded that it was "not capable of rendering fair and effective justice for violations of international humanitarian and other serious criminal offenses involving the prior regime," AP reported on 5 December 2003. Sandra Hodgkinson, director of the CPA's human rights office, told AP, "There is no need to have an international tribunal when the local population is willing to do it."

While the debates will no doubt continue, human rights activists and victims have learned from the existing tribunals how slow they move, how few defendants are actually tried and sentenced, and how expensive they are. The tribunal for the former Yugoslavia, for example, has cost some $500 million from 1994-2001, according to the "Financial Times" as of April 2002, and the Rwanda tribunal had been even more expensive over seven years at $550 million. A relative handful of defendants reach the stage of being found guilty and sentenced -- about a dozen found guilty and as many appealing in the tribunal for the former Yugoslavia. In Rwanda, victims and defendants were angered as scores of lower-profile defendants were tried in local courts or people's courts under different rules and conditions than the higher-profile genocidaires at the international tribunal.

The trial of former Yugoslav President Slobodan Milosevic has prompted many international jurists to think of a way of avoiding a similar scene, where a defiant and contemptuous defendant in the dock serves as his own counsel, and uses the courtroom to make rambling speeches and discredit witnesses.

IN SEARCH OF TRUTH AND RECONCILIATION AS WELL AS JUSTICE. The staggering amount of evidence and number of defendants have caused some groups to think of alternatives to, or complements of, high-profile justice in Iraq, whether national or international. In the countries of the former Soviet Union, for example, groups such as the Memorial Society have resorted to compiling public records and creating interactive monuments and exhibits as a way of coming to terms with the past, since the authorities to this day are still not willing to try crimes of totalitarianism in any kind of systematic manner. Legal fine points and the debate about the legitimacy of "victor's justice" are the luxury of those in a situation where victors have already prevailed and totalitarians are being captured by international forces intending to leave, and not shot in basements by a new set of national totalitarians intending to stay, as was the case in Russia.

In summarizing last week's discussion, the Blaustein Institute identified five reasons for why such "legacy crime" trials are expected to bring about justice: deterrence; establishment of the truth; healing for victims; punishment of perpetrators; and promotion of national reconciliation. By establishing individual responsibility for crimes rather than allowing assumptions of collective guilt, the Blaustein Institute says, national reconciliation can be promoted, especially in multiethnic and multiconfessional communities.

Judge Richard Goldstone, in a talk at the University of California at Berkeley in 1997, said that when justice is not done and perpetrators are not brought to account, there are "terrible feelings of unrequited calls for justice, and anger, frustration. It brought home to me the importance of breaking that cycle by making public at least what happened now."

The demands on the tribunals may be too great for the social tasks that need to be done in post-conflict situations, however. Robert Rifkind, chairman of the Blaustein Institute's administrative council, said at the seminar that "in looking to tribunals not only to establish the truth fairly and punish perpetrators but also tell a coherent tale of the victims' story and promote national reconciliation, we may be asking too much of these trials." That is why increasing attention is likely to be paid in coming months to the parallel "truth and reconciliation" process and the experiences of other countries such as Chile or South Africa who have used them effectively, not as a substitute for but a complement to justice.

Judges who have worked in the international tribunals as well as trial attorneys in ordinary courts speak of "trial truth," the statement of facts of a case that come out at trial that are not necessarily structured in a coherent narrative of right and wrong. A "truth commission" can address these gaps.

Commenting on the issue in their May 2003 report, the Iraqi Jurists' Association said: "Beyond the major crimes, an active truth and reconciliation process is required to identify, record and disseminate information about what transpired under this regime. Additional remedies other than deprivation of liberty such as personal payments of victims' compensation, community service and lustration mechanisms are available for those offenses which do not rise to the level of major crimes." Some Iraqi leaders have expressed concern about "de-Ba'athification" and the improper use of "lustration" and human rights activists abroad have cited the political chaos in Czech Republic and Hungary, for example.

Ultimately, Rifkind asked whether the concerns expressed about the abilities of Iraqi justices and the complexities of trying massive human rights atrocities were about capacity building, or control. By invoking the weakness of Iraqis, international speakers appear to be looking for a role for themselves. At least some groups and individual consultants stand to enhance their position with donors if they can show they are directly involved in international justice projects and in some cases, they may obtain government-funded or private contracts to serve as advisers. They bring valuable insights from other settings such as East Timor or Sierra Leone, yet in the Iraq case, the scale of the violations, the role of educated exiles who have kept the records, and the relevance of Iraq to the great powers will make for a different type of setting.

LAW AND ORDER, CIVIL RIGHTS, BEFORE JUSTICE. The political reality in Iraq is that the justice process for the past will be slow. The international community is not likely to want to have the spectacle of Saddam Hussein and his henchmen on trial on public television just when elections are finally worked out or a struggling new government takes power, because they may not want to sequence justice first before social peace. Time and again, the world's conflict zones have seen the exigencies of peace accords forcing justice issues to be downplayed.

Isam al-Khafaji, Baghdad director of George Soros's Open Society Institute's Iraq Revenue Watch project, at a seminar in New York on 13 February about his project, suggested there were already many well-trained lawyers and judges in Iraq, as well as many returning, who would be more than willing to take part in elections, including in the justice effort. In his view, the role of jurists now was to go into public service, either in parliament or government, because the country needs educated leaders.

He discounted rumors that the Basic Law draft was never circulated in Arabic, and criticism that Iraqis themselves were not participating. He said that the Iraqi legal experts who worked on the draft used English because they knew it, but assured his audience that the draft was also distributed in Arabic.

Already, the draft has drawn criticism. On 16 February, U.S. Iraq administrator L. Paul Bremer expressed reservations about the way the drafting was going, AP reported. He went further with a group of women in Iraq and said he would block Resolution 137 to place family law under the jurisdiction of Shari'a law. He is due to sign the law into effect next month after it is voted upon by the 25-member Iraqi Governing Council.

Like other Iraqi intellectuals, al-Khafaji believed that even under Saddam Hussein, Iraq had among the best legal protections for women in the Arab world. These gains are now in danger of being rolled back. He characterized the "personal status law," as the resolution is known, as "coming out of nowhere." "On the last day of his presence, he [a Governing Council member] wanted to show his followers what he could do for them," he said of the move. "They want to have Islam as the source, whereas others say it should be a source," he added. Women have staged street demonstrations in recent weeks about the law, and have also been demanding 40 percent of the posts in government. For them, political participation and jobs are at least as important, if not more important, than seeking justice for past crimes where often they are the only living members of families destroyed by arrests and killings of male relatives.

Ordinary Iraqis do want justice in the long term, but their most immediate concern is security. When there is talk about law, it is not about the fine points of evidentiary procedures, but deterrence and punishment of common criminals and various forces committing terrorist acts and disrupting everyday life. Numerous Iraqis have experienced ongoing threats and killings of their relatives. Yanar Muhammad, an Iraqi women's activist who lived in exile in Canada for many years and returned after the war, said that she recently received an e-mailed death threat. A past speaker at the Open Society Institute, she is a visible opponent of Resolution 137.

The CPA effort to train police has been greeted heartily, al-Khafaji said. "Ordinary Iraqis do not see them as collaborators," he said. "They know how corrupt the police were under Saddam." Although half the police are the same people who worked under the previous regime wearing similar uniforms, ordinary people support them as they are worried about security. "We hated policemen by instinct under Saddam," al-Khafaji said. Now when police come out in the street, "we shake their hand" as they are doing the job of restoring law and order, not persecuting dissidents. Obviously, the tactic with the recent bombings has been to frighten recruits waiting in line for army or police positions, he said.

Asked about reports that various terrorist forces are deliberately targeting intellectuals in society -- doctors, lawyers, engineers, teachers -- especially those associated with the CPA, al-Khafaji said he did not believe there was always such a direct correlation. "The New York Times" reported on 6 February that police were reporting a widespread campaign of assassinations against the educated class. Earlier this year, for example, Abdul al-Latif al-Mayah, a political science and human rights advocate, was shot as he was driving to work by masked gunmen. There have been hundreds of such killings, and Iraqi police and the U.S. military say such intellectuals are being deliberately targeted to sow chaos in society and undermine reconstruction.

Al-Khafaji said that some victims are "far from being targeted for working for the CPA." He knew some figures who were killed who were very critical of the CPA and did not support the occupation but were targeted by Islamists who did not like their views. He disavowed any wide popular support for such assassins. "I don't see them as holy warriors. Iraqis don't see them as freedom fighters," he said.

Ultimately, the kind of justice that Iraqis get will not be a purely domestic affair, because of the existing extent of international involvement in ending gross injustices. Iraq will more than likely have extensive international involvement and scrutiny, but the mechanisms are likely to work very slowly, as the basic issue of protection of judges and police in their day-to-day work is not yet resolved, let alone the protection of witnesses of war crimes. The very people who want to try the crimes of the past must first secure their own day-to-day safety in the present.