Portfolio at NYU

Posted 05.27.03
Iraq: Truth Commissions and Justice

By Carola Mandelbaum

April, 2003

The case against Saddam Hussein as the chief responsible for crimes against humanity in Iraq is building up as the end of the war approaches and the question about its reconstruction becomes inevitable. The debate about how to deal with human rights violations committed by Saddam's regime involves government officials, human rights activists and experts, and Iraqi exiles. And of course, the "liberated" Iraqi people. Nothing has been decided yet as the different sides discuss what is next; options seem abundant, consensus over the matter, unlikely. The final decision should be taken with the agreement of those who suffered under Hussein's regime; relatives of the estimated 290,000 "disappeared" people since the late 1970's, friends of the 100,000 Kurds executed in the 1988 Anfal campaign and inhabitants of the approximately 5,000 villages that were systematically destroyed and their population forced to live in "resettlement camps." All Iraqis have suffered directly or indirectly under Saddam's repressive system therefore it is clear that they should be the main motor in mounting a system of justice that will avenge all the years of pain and anguish.

Although the parties involved in the debate do not consent on what justice mechanism should be established, most of them agree that there are several options: to many in the international community the evident forum should be the newly formed International Criminal Court (ICC) signed by all the members of the EU but which presents the obvious problem that the US has not yet signed up to it or consented to be placed under its jurisdiction. Other options include an international tribunal, (like the ICTY), a hybrid tribunal (with Iraqi and non-Iraqi judges, following the model of Sierra Leone), a U.S.-sponsored and Iraqi-led tribunal (which has been proposed by the Pentagon recently) or a U.S. military tribunal. What has become clear in the last couple of weeks is that Washington will determine any decision made, including the role of the UN. The question remains whether the EU will give its blessing to whatever the Bush administration decides or a new source of transatlantic conflict will arise.

In the last decade, justice processes dealing with past abuses by the previous regime (such as those mentioned above) have become the norm in countries where authoritarian regimes collapsed giving way to democracy. These new and usually fragile democratic governments find in judicial actions and the establishment of truth commissions a response to heinous human rights violations sponsored by the previous regime. Such is the case in countries as disparate as East Timor, Peru and Serbia and Montenegro. This transitional justice devices first developed in Latin America in the mid 1980's in response to the fall of infamous dictators such as General Pinochet from Chile and General Videla from Argentina. Since then, 21 truth commissions have been formed; more than half of them were established in the last ten years. The rise of truth commissions shows that they have become the frequent process for post-transition justice, as was the case in South Africa, Sierra Leone and Guatemala. Pricilla Hayner, a human rights expert who has consulted governments and organizations on transitional justice, argues that although sometimes government officials think, or have an interest in moving on and burying the past, she questions whether "a society can build a democratic future on a foundation of blind, denied, or forgotten history?" In the last decade, most countries emerging from authoritarian regimes have faced this question and the number of transitional justice processes that have been implemented is evidence of this excruciating process. "Truth commissions are a new reality," said Hayner, "There's an expectation both internally and externally for their establishment." Truth commissions are particularly useful in those countries where criminal justice mechanisms cannot realistically be implemented, or when prosecutions cannot sentence all levels of perpetrators, which is likely in the case of Iraq. As will be the case of Iraq as well, truth commissions are especially efficient in unifying deeply divided societies because the population reconciles under a blanket of truth. Thus the democratic process is consolidated. "The truth creates an accurate historical narrative," said Jennifer Trahan, International Justice Counselor at Human Rights Watch, "it is the necessary complement to one or more justice mechanisms, although it shouldn't be a substitute for prosecutions."

Iraqi opposition and the London-based exile community are actively working in coming up with a plan that will address transitional justice. But unfortunately much depends on the U.S. government. Six key opposition Iraqi political parties, including the Constitutional Monarchist Movement, led by the first cousin of the last Iraqi king, the Iraqi National Congress, and The Future of Iraq Project, (composed by Iraqi exiles) are constructing the blueprints for a Truth and Reconciliation Commission in Iraq. The commission would focus on Saddam Hussein's apparatus of terror. Kanan Makiya, a prominent Iraqi exile who has written extensively about the horrors of Saddam's regime, has retrieved documents from northern Iraq that incriminate Saddam, his sons Qusay and Uday and members of his inner circle, ordering systematic human rights violations against Kurds. "The nature of the regime was to make the population complicit in Saddam's crimes," said Makiya, who leads the Iraq Research and Documentation Project, to the Sunday Times "the legacy of pain and violence is going to be one of the hardest things to resolve, which is why the process has to be about truth telling. There has to be accountability and some forgiveness." There are as many as 2.4 million implicating documents, (they are available online), which record executions, punishment against dissidents, ordering of deportations and pillaging of villages, will become key evidence against any kind of criminal trial against senior members of the regime.

Human Rights Watch has long advocated for the prosecution of Saddam Hussein and high-ranking officials of his regime, highlighting the importance of a deterrence effect of tribunals. Strictly prosecuting human rights violations is a way to make sure that these crimes won't repeat themselves; therefore there shouldn't be any space for amnesties or pardons, which HRW argue violate international law. "There will be some need for international assistance to assure that any tribunal or truth commission established be fair and balanced," said Trahan, "but the initial impetus for the creation of any judicial mechanism must come from the Iraqi opposition." Trahan proposes a multiple mechanism that would guarantee the provision of justice, as well as the conditions of fairness, impartiality, and independence. "There should be an international tribunal created with the collaboration of the UN that would prosecute Saddam Hussein and his inner circle," said Trahan, "additionally Iraqi courts should put on trial second tier officials and the Iraqi Executive should create a Truth and Reconciliation Commission that will allow victims to face their violators."

Hayner believes that international forces should not impose the establishment of a truth commission in Iraq, but she said the formation of one is likely to occur given the influence of the Iraqi exiles, which are augmenting their pressure for its creation. Time should be given for the Iraqis to create the best possible commission given their internal divisions. Commissions resulting from insufficient funding, a weak mandate or the wrong commissioners can be worse than no commission at all. "If you do a truth commission badly you don't really have a chance to do another one," said Hayner "so Iraq should wait for the right time to do the best commission possible, although, of course, the longer you wait the higher the risk that the momentum needed to do one is lost."

Richard Dicker, director of the International Justice Program at Human Rights Watch, argues against an Iraqi-led judicial process with jurists selected by the U.S. as proposed by the Pentagon, because the extent of the influence of the ruling Ba'ath Party will not assure an impartial and fair process. "Iraq's judiciary doesn't have the capacity to handle the kind of complicated trials that are crucial for the provision of justice for the kind of crimes committed," Dicker said (the charges would include genocide, crimes against humanity and war crimes), "Iraq's Revolutionary Court, State Security Courts and others courts were instruments of the regime, they have been for years accomplices to the terror, therefore they will never be impartial."

Additional problems arise if the leaders of Hussein's regime are prosecuted by, or on behalf, of the United States. As Alex Boraine, former chairman of the South African Truth Commission argues in his Op-Ed piece in the IHT last week, "Iraqis will view the prosecutions as "show trials" and the overwhelming majority of Arab nations and other countries opposed to the U.S.-led occupation of Iraq will reject them as "victor's justice." This outcome should be avoided because "it is in no one's interests that efforts to pursue justice for the terrible crimes committed under Saddam are discredited because they are conducted under U.S. auspices," Boraine concludes.

Another key issue will need to be resolved in deciding what kind of transitional justice mechanism is implemented in Iraq. If the military action led by the U.S. against Iraq was considered illegal by the international community, and in light of the strong opposition to the war, then what kind of legitimacy could an international tribunal have? Resolving this conundrum, which is subject of much debate, will be the first step towards a common policy towards Iraq's democratic construction.