The Foreign Service Journal, May 2004

fication on all judges who were mem- bers of Saddam’s Ba’th party. To be sure, many of the Ba’thist judges should indeed be disqualified. Yet some who went on to become judicial officers joined the party not as parti- sans but because it was the only road to professional advancement in a one- party state. Doug Cassel, the Direct- or of the Center for International Human Rights of Northwestern Uni- versity School of Law, describes the dilemma clearly. “Once all Ba’th judges are disqualified, who will be left? Mostly judges who were victims of Saddam’s regime. They or their family members were imprisoned, tortured or forced into exile by Saddam. No credible legal system allows victims to sit as judges in the trial of the alleged perpetrators.” Perhaps most troubling of all, the tribunal does not require that defen- dants’ guilt be proven beyond a rea- sonable doubt, contrary to the legal standard employed in the U.S. and in most developed countries. Its stan- dards of criminal responsibility make superiors responsible for crimes by their subordinates, and also allows sol- diers to be convicted simply for fol- lowing orders. International law since the Nuremberg trials has not allowed a defence of “just following superiors’ orders,” although it may mitigate a prison sentence. The problem is the manifest double standard employed by the U.S. Washington does not apply these same standards to its own military, so why impose them upon Iraqis? “Rule of Law” vs. “Rule by Force” For all these reasons, the Iraqi Special Tribunal does not meet Washington’s stated objective of con- ducting a process that “withstands international scrutiny” — at least as presently constituted. An alternative course would be to move the trials to an international forum, such as the International Criminal Court, as the U.N. Security Council has the authority to do. However, even if the U.S. did not veto such an initiative, the ICC only has jurisdiction over crimes committed after the court came into existence (July 1, 2002). Thus, it could not try Saddam and other defendants for some of their most notorious crimes, including the use of chemical weapons on Iraqi Kurds in 1988. The Bush administration has now irrevocably committed to submit Saddam to the Iraqi Special Tribunal for trial. Fortunately, there is still time for Iraqi officials to take advan- tage of the safeguards already built into the tribunal’s operating proce- dures to strengthen both the reality and perception of due process. For example, the statute creating the tri- bunal explicitly permits the appoint- ment of non-Iraqi judicial officers per Article 4(d) of the Statute of the Iraqi Special Tribunal, and also provides for the court to have international advis- ers and monitors present during trials (though they cannot participate in the proceedings themselves). Such ap- pointments would assist in the per- ception of a fair trial. But, it is unfor- tunate, to say the least, that interna- tional judges are not permitted to act in an investigative capacity. Iraq should consider taking addi- tional steps to enhance transparency. The best outcome would be the adop- tion of a hybrid court of Iraqi judges and international judges such as that used in the Special Court for Sierra Leone. This might provide an out- come that satisfies the international community, including Iranians and Iraqis. Such a court would need to have retroactive powers, however, as does the Special Court for Sierra Leone. Unfortunately, it seems clear that the Sierra Leone model will not be followed in Iraq. But at a minimum, the Iraqi Governing Council could appoint both Iraqi and international judges to the Trial Chamber and the Appeals Chamber, at the discretion of the Governing Council. Such a set-up — a sort of “quasi-hybrid” tribunal — could strike a balance between reviv- ing Iraq’s judicial system and ensuring compliance with rule of law stan- dards. On the one hand, the tribunal would serve a rehabilitative role by involving Iraqi judges. On the other, the active participation of respected international judges would provide the crucial perception and legitimiz- ing fabric of fairness and impartiality. It would also convincingly acknowl- edge that not all of Saddam’s victims were Iraqi. The Quasi-Hybrid Tribunal as an Antiterrorism Initiative The vision for a strong rule of law in Iraq is further motivated by the United States and its coalition part- ners’ search for security. We have wit- nessed many violent counterterrorism initiatives aimed at aggressively responding to global terrorism and other legal belligerence. Yet there is a noticeable absence of the coalition of the willing nations to engage in coher- ent antiterrorism strategies. Such strategies are ultimately aimed at pre- venting belligerence before it occurs. For at the core of antiterrorism is a uniform adherence to the notion of rule of law and all that it entails. 16 F O R E I G N S E R V I C E J O U R N A L / M A Y 2 0 0 4 S P E A K I N G O U T The victims of Saddam Hussein’s crimes deserve to see justice done and have it seen to be done.