EXORCISM:

Their Day in Court (SUSAN DOMINUS, March 30, 2003, NY Times Magazine)

Since October, amid ever-louder discussions of bombing plans and interrogation techniques, a different sort of conversation began trickling out of the Bush administration. A plan - or something slightly less concrete than a plan, perhaps a will - to see the upper tier of Saddam Hussein's court tried for war crimes and crimes against humanity was starting to take shape. In the intervening months, the debate has been joined by members of international bodies, legal scholars and interested political entities.

Recently, the Bush administration has indicated who the top targets of prosecution would be: at a minimum, six of the so-called dirty dozen, 12 senior Iraqi officials who, along with other officials, are said to have particularly gruesome records of torture, chemical attacks, mass disappearances and indiscriminate civilian killings. By the first night of the war, of course, it became clear that the United States' first priority was "taking out" the highest-ranking Iraqis, starting with Saddam himself. And as of this writing, it is unclear how many in this group remain alive.

Should some or all of these men survive, however, the question remains as to just how their trials might proceed. On what system of justice, let alone what continent, might they take place? The debate has been active, among both interested observers and the government officials who will eventually set the policy. And given the potential of such trials to determine, or even distort, the historical record, for nationals and for the rest of the world, the debate's resolution has a lot riding on it. "If you ask the average person why we got involved in World War II, they'd say Pearl Harbor, but also because the Germans were killing people in concentration camps," says Charles Forrest, chief executive officer of Indict, a human rights group that has been compiling evidence of Iraqi war crimes since 1997. "In fact, when we got involved in the war, the existence of the concentration camps weren't common knowledge. It was Nuremberg that brought all of that out into the open." Forrest and others say they believe that a few well-structured prosecutions of Iraq's leadership circle could do much to detail, for Iraq and the world, the history of Saddam's rule. They could also bolster the case for the American invasion in the first place.

There is no one obvious pattern that war-crimes prosecution of Iraqis would necessarily follow. The best-known recent war-crimes prosecutions - those that have dealt with atrocities in Rwanda and the former Yugoslavia - were conducted under international oversight. This was a matter of principle, a belief that only international bodies could confer the kind of moral legitimacy that such trials - which are, after all, significantly about public display - require. But obviously this is not a view that the Bush administration, which has rejected the International Criminal Court and extricated itself from international agreements, shares. Washington is no more likely to leave the trials of Iraqi war criminals to the United Nations than it was to leave the war itself to it. Beyond the question of international justice, however, there are several practical considerations, in this as in all such prosecutions. How much money might this form of justice be worth to whoever's financing it? Is there still too much fighting going on to
hold the trial in Iraq itself? How many educated lawyers could be rounded up among the citizenry? What form of justice would most persuade the victims to let the law, rather than civilian violence, punish the accused? Finally, for an administration that has made no secret of its belief in the justice and efficacy of the death penalty, there is one additional consideration: in which kind of court would the prosecutors most likely win not only convictions but also executions? [...]

A plan for an Iraqi-run court has certain practical drawbacks, chiefly the time it would take to get it up and running. David Scheffer, former United States ambassador at large for war crimes issues, points out that trying the former regime on its own turf "means you have these very destructive individuals still in Iraqi territory," possibly maintaining a hold over the popular imagination. "There is value to showing justice at home - I don't want to underplay that," he adds. "But there is considerable doubt that you could have a credible domestic court process quickly in a country trying to drag itself out of more than 30 years of lawlessness." Complicated legal questions arise as well when time goes on: according to the Geneva Convention, P.O.W.'s can be held until "the cessation of hostilities." After that they must be charged with a specific crime or be released.

But the Iraqi exiles have another urgent interest in keeping the trials under Iraqi (or Iraqi-American) control, one that would put them at odds with the United Nations: they want to make sure that those found guilty can suffer the death penalty. Chalabi, whose uncle Ahmed Chalabi is a leading American candidate to lead postwar Iraq, couches it in terms of cultural sensitivity: "As Westerners and so on, we'd like not to have the death penalty," he says. "But it's part of Iraqi criminal code, and you can't eradicate it easily. It's deeply ingrained in Iraqi culture."

Of course, the death penalty is deeply ingrained in American culture as well. And that might be among the more compelling reasons that the current administration would endorse an Iraqi court. It also assures that they will insist on retaining control, or at least primary oversight, for whatever trials ensue. "There's the sense," says Kenneth Anderson, "that it would be the grossest act of colonialism for the U.N. to come in and rob the Iraqis of the death penalty at the time when it's most appropriate."

Or, as David Rivkin, a Washington attorney who is a veteran of both the Reagan administration and that of George Bush Sr., says, in response to concerns about the quality of the Iraqi judiciary, "Try them for a week, give them a chance to say what they have to say and then execute the senior ones. Is there any doubt they're guilty?"

With the goal of preparing Iraqi judges to handle the coming prosecutions, the State Department is playing host to a group of expat Iraqi jurists in a Washington hotel. There, representatives of the Department of Justice will lead a crash course in international law. The schedule reads as follows: Day 1: International law. Day 2: International human rights law. Day 3: Due process, investigations. Day 4: Due process, the trial. Day 6: Military justice. Day 7: Ethics. Day 8: Judicial administration. Day 9: Train the trainers. on. Day 9: Train the trainers.

As Professor Bassiouni points out, that's a far cry from the way America rebuilt the judicial system of other vanquished enemies. By 1942, he says, three years ahead of D-Day, the United States was already planning the denazification of Germany. The Transitional Justice Working Group, by contrast, was formed only eight months ago. And the jurists in question may not be quick studies. "Somebody who came out of an Iraqi legal education in the Saddam regime did not come out with an education that was, shall we say, intellectually open," Bassiouni says pointedly.

Bassiouni favors a tribunal that employs Iraqi judges along with experienced jurors from other Arab nations, with plenty of guidance from international experts. Even that model, he concedes, would have certain drawbacks in a country that's been through as much as Iraq. But he offers a powerful reminder of just how important it is to try to find the right approach. "If we assume 500,000 people were tortured," he says, "another 100,000 people killed, under the Baathist regime, all of those victims' families are going to expect some type of justice. Where is that going to happen? If it doesn't happen, will we see revenge killings breaking out across Iraq? If occupation forces prevent them, won't the people say, 'Didn't you come to bring us justice, and now you're preventing us from having it'?"

It would seem important to let the Iraqis begin the cleansing of their own society by trying and executing as many Ba'athists as they so desire. Posted by Orrin Judd at April 1, 2003 8:50 PM