Iraq Special Tribunal Could Bring More Stability

Challenges to Tribunals Legitimacy Must Be Faced

NEW YORK - The Iraqi Governing Council recently announced its intention to create a special tribunal to try those responsible for gross human rights violations committed during Saddam Hussein’s rule.

The Lawyers Committee supports the creation of a tribunal to prosecute these crimes. But in order for the tribunal to be successful it must address several key challenges.

“There will be only one chance to hold accountable the people most responsible for the atrocities committed under Saddam Hussein’s rule,” said Fiona McKay, director of the Lawyers Committee’s International Justice Program. “Those undertaking the task have a heavy responsibility to get it right.”

One principal challenge the special tribunal faces is to be seen as independent of the United States. The tribunal can help enhance its independence by involving the broader international community in its work. In particular the tribunal should seek to involve countries with direct experience investigating and trying crimes against humanity, war crimes and genocide.

The Lawyers Committee is also concerned about reports that the tribunal may rely almost exclusively on Iraqi laws and Iraqi jurists to prosecute the accused. Following this go-it-alone route would place too great a burden on a system of justice that will take time to rebuild. Other countries emerging from periods of severe repression or conflict - for instance, the former Yugoslavia, Rwanda, Cambodia, and Sierra Leone -- have found it impossible to dispense justice for mass atrocities in an impartial and effective manner without international partnership.

Partnership with the international community need not involve surrendering local ownership and control. It is possible to establish a tribunal that would apply Iraqi law, give a central role to Iraqi jurists and other personnel, and apply international law.

As it drafts the legal framework under which the tribunals will operate, the Governing Council should also resist the temptation to provide for trials in absentia which do not comport with internationally recognized fair trial standards. The Lawyers Committee also urges the Governing Council not to extend the power to the tribunal to impose the death penalty on a defendant.