A Question of Justice: Whose?

The charges are mass murder, torture and the destruction of entire villages.

The court is in this traumatized nation with fresh wounds and raw hatreds.

The accused is to be judged by a panel of his peers.

Can Ali Hassan Majid, known notoriously as “Chemical Ali” for his alleged use of chemical weapons against Iraqi Kurds, or any of the several dozen other Iraqis who will face similar charges, expect a fair trial here, under these circumstances?

In one of its first acts, the Iraqi Governing Council, an interim body appointed by U.S. occupation authorities, announced it would establish a special tribunal to hear such cases, the initial step in an ambitious project to overhaul the Iraqi judicial system.

Emerging from decades of repression and fear, Iraqis want to see former rulers punished, and they want to know what happened to thousands of relatives who disappeared in prison or in the homicidal campaigns that Saddam Hussein launched against his perceived opponents.

The question, however, is whether the U.S.-backed plan for the tribunal is the best way to achieve those goals. American advisors say they are confident that the court, which will be presided over by an Iraqi judge or panel of judges, can mete out justice. But international human rights experts argue that the tribunal can have neither the impartiality nor the competence required for such a delicate task.

And, they add, jurists who are handpicked by U.S. occupiers are not likely to have great credibility among many Iraqis or the world community.

Many critics charge that the United States’ opposition to the U.N.-established International Criminal Court is now coloring the advice it gives the Iraqis, with the Americans resistant to any effort to internationalize Iraq’s pursuit of justice. The United States has steadfastly opposed the U.N. court, fearful that its own soldiers and leaders would be held to account on politically motivated charges.

The Iraqis’ new tribunal will not be able to prosecute American soldiers or other foreigners. The head of the U.S. occupation authority, L. Paul Bremer III, handed down a decree in June that strictly forbids any Iraqi court to sit in judgment of non-Iraqi military and civilian personnel assigned to the occupation authority.

Throughout history, the handling of postwar justice has been a delicate task. Pressed too quickly or without suitable controls, any process of judgment risks appearing to be victor’s justice, or raw revenge.

Some societies, such as South Africa and several Latin American countries, have chosen a form of “truth and reconciliation” commission that airs the past but doesn’t prosecute. Others, such as Bosnia-Herzegovina and the rest of the former Yugoslavia, were given a U.N.-appointed tribunal, the war crimes court at The Hague.

Several Iraqi officials said they want to see trials held, soon, inside Iraq and with Iraqis sitting in judgment.

“Why not?” said Dara Nooreddine, one of 24 members of the Governing Council. “The documents we have proving the crimes of members of the former regime are so numerous, if you put them side by side they stretch [7 1/2 miles] in distance.”

Nooreddine, a Kurd and a former judge on the Iraqi Appellate Court who was imprisoned by Hussein for ruling against the regime, is especially eager to see Chemical Ali brought before Iraqi judges. Any other form of handling his case is unthinkable, Nooreddine said.

“A man who buries people alive, who uses chemical weapons to kill thousands of men, old men, women and children -- men who commit genocide, do they deserve reconciliation?” Nooreddine said.

International experts in human rights and justice warn that the Iraqi approach runs the risk of producing show trials with little credibility.

“Weakened and compromised by decades of Baath Party rule, [the Iraqi judiciary] lacks the capacity, experience and independence to provide fair trials for the abuses of the past,” New York-based Human Rights Watch said in a recent statement.

The human rights group said the Governing Council must be willing to incorporate international experts, prosecutors and judges who are familiar with the complexities of trying leadership figures facing charges of genocide, crimes against humanity or war crimes.

“The judicial system was weakened first by rampant corruption, and then by being sidelined by a parallel system operating within Iraqi intelligence, special police and military, where due process rights were completely flouted,” said Hanny Megally, until recently with Human Rights Watch and now head of the Middle East program of the International Center for Transitional Justice in New York.

While it may be possible to find untainted jurists, he said, “it is unlikely they will have the experience or the skills to conduct major trials involving charges including genocide and crimes against humanity.

“They will need outside expertise to help them if justice will be done -- and be seen to be done,” Megally said.

Iraqi officials said they are ready and eager to do it themselves.

“We have 5,000 years of civilization and tradition. We are capable of putting on a trial,” said Muhyi Alkateeb, secretary- general of the Governing Council. He said the international war crimes tribunal at The Hague, where former Yugoslav leader Slobodan Milosevic sits in the dock, is a bad example for Iraq.

“We can’t spend $150 million and take seven years to try 18 people,” he said. “These [former Iraqi leaders] are well-known criminals. They themselves documented their crimes. We don’t need to waste a lot of time.”

The Iraqis’ senior U.S. advisor for transitional justice, David Hodgkinson, said members of the Governing Council are “almost unanimous” in desiring a national, not international, tribunal. He said that foreign consultants would be welcome but might be reluctant if the Iraqis enact the death penalty.

Hodgkinson, whose office is part of the occupation’s Coalition Provisional Authority, said the search is on for judges, prosecutors and defense attorneys untainted by the past regime’s abuses who are both competent and brave. They will be vetted by the Americans.

Hodgkinson said that for the Iraqis to try someone at the level of Chemical Ali, who is in U.S. custody, the Governing Council would have to petition the U.S. authorities for jurisdiction. None of this can happen as quickly as many Iraqis desire, he said.

“The community at large will want vengeance, and rightly so. We are hoping to come up with ... a rule of law that protects the integrity of the system,” he said. “It’s not a rush-to-justice philosophy as far as we are concerned.”

Many Iraqis complained bitterly when Hussein’s sons Uday and Qusai were killed by U.S. troops this summer. The widely reviled men should have been made to stand trial to satisfy Iraqis, the argument went.

Similarly, Hussein himself must face his entire nation of accusers, say many Iraqis -- even though numerous U.S. officials make no secret of preferring he be killed rather than captured and tried.

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Wilkinson was recently on assignment in Iraq.