The successful American raid followed a Wednesday announcement by the Iraqi Governing Council—replete with American acquiescence, according to the State Department—that a special tribunal composed solely of Iraqi jurists would try members of the former government and those complicit in its crimes. Thoroughly Iraqi, the tribunal departs from the three recent UN-sponsored war crimes tribunals for Rwanda, Sierra Leone and the former Yugoslavia.
Even while foreign advisers give counsel to Iraqi jurists on the workings of war crimes proceedings, it will be Iraqis who run all of the day-to-day operations of the tribunal—from the prosecution to the defense to the judges themselves.
Prosecuting Saddam and his ilk in Baghdad will help give closure to a horrible chapter in Iraqi history—one characterized by mass killings, political repression and actions that may constitute genocide. Any ultimate determination of the regime’s crimes will not be made by foreign forces stigmatized as occupiers, but by Iraqis themselves.
By comparison, South Africa’s Truth and Reconciliation Commission—and many other countries’ model of this process—have helped transition states from sham democracies or military dictatorships into full democracies, as is envisioned for Iraq. The Commission model allows victims to confront those who abused the authority of the state at the highest level and punish them. It also allows for those complicit in a regime’s everyday functioning—in this case, a large portion of the Sunni minority—to recant their involvement with the regime and rejoin civil society. Such is the system that has allowed the multitude of ethnicities in South Africa—from Boers, the group that provided apartheid’s rigid backbone, to those whom they routinely victimized—to function again in one of Africa’s most effective democracies.
In creating the special Iraqi tribunal’s statute, Dara Nor al-Din, a Baghdad judge and member of Iraq’s transitional government, and a team of jurists drew from the Geneva Conventions as well as Rwanda’s genocide tribunal and the International Criminal Court. At the same time, the tribunal’s statute borrows from laws and traditions enacted before the Ba’ath regime took power in 1968. That Iraq’s top jurists are studying the ever-evolving nature of war crime prosecution while keeping an eye on Iraq’s own situation is heartening. The practical incarnation of the tribunal will be a balance of Western jurisprudence, which has come to dominate the field of international law, and Iraqi custom.
We hope that a hybrid system run by Iraqis will provide a clear signal of Iraqi empowerment and be a stimulus for reconstruction. The handover of Saddam from American to Iraqi jurisdiction should erase some of the stigma of coalition occupation and reassure the Iraqi people that the full transition to democracy will come soon, as promised.
While Iraq’s neighbors, the United States and all of the international community have suffered because of Saddam Hussein’s rule, the vast majority of the regime’s crimes—which range from genocide to systematic rape to assorted other crimes against humanity—were committed against the Iraqi people. It is therefore the Iraqis, and not Americans or the international community, who must come to terms with the horrific legacy of Saddam Hussein.
While the United States has tied up one loose end in Iraq with its capture of Saddam, the administration must keep in mind that its larger objective in Iraq—to build a vibrant democracy where only the heel of repression has existed—and the important objective of capturing Osama bin Laden, a man whose terrorist network continues to pose a grave threat to America, are, as yet, unaccomplished.