Iraq's special tribunal may be flawed but not unfair

By Laurel Miller 
October 19, 2005
Financial Times
http://news.ft.com/cms/s/2165b172-40ca-11da-b3f9-00000e2511c8.html

Like it or not – and many in international legal and diplomatic circles do not – the Iraqi Special Tribunal has now begun the business of trying Saddam Hussein and others. Until now, many governments, international organisations and non-governmental groups that might have been expected to provide political support and concrete assistance to a tribunal handling charges of some of the most egregious crimes of recent history have essentially boycotted the tribunal. While many of their concerns are well-founded, the tribunal is a reality – flawed, but unavoidable. It is time for more constructive engagement. 
Those boycotting the tribunal include – perhaps most importantly – the United Nations, which has gone so far as to prohibit UN personnel, including those serving in other war crimes tribunals, from providing advice or training to the Iraqi court. Other boycotters include most governments, particularly of the European Union, that regularly provide aid for building judicial capacity in emerging democracies, as well as financial and technical assistance specifically for war crimes prosecutions (the UK, Australia and Kuwait are exceptions, having given the tribunal modest assistance). Rounding out the boycotters are many of the international NGOs that typically offer practical help to war crimes tribunals such as those for the former Yugoslavia, Rwanda and Cambodia.
This has left the US as the tribunal's greatest supporter – both politically and concretely, as it provides direct funding, as well as lawyers, investigators and others to work with the body. Not surprisingly, in the contentious context of the US government's Iraq policy, Washington's support has itself been a factor behind the boycott. US officials were instrumental in crafting the tribunal during the early days of US occupation in Iraq, and the precise nature of US involvement with the body has been less than transparent, fanning suspicions about the blurring of the line between support and control. The lack of clear Iraqi leadership of the tribunal has fed such scepticism. The biggest problem, however, is the death penalty. The tribunal's statute provides the option of capital punishment, in accordance with Iraqi criminal law. Objection to the death penalty has been elevated to a theological point among boycotters. This is understandable in principle, unless one considers that the same objection did not prevent the UN or European governments helping to rebuild the justice system in, for example, Afghanistan, which also permits the death penalty. Moreover, international law does not bar Iraq's tribunal from imposing the death penalty. From a pragmatic viewpoint, surely opponents of the death penalty would want to ensure it is appliedfairly, in compliance with the highest standards of due process?
Other reservations stem from the relative inexperience of Iraqi judges in complex areas of international law, and from the difficulties they may encounter in maintaining their independence from Iraqi politics. The latter issue arose recently when Ahmad Chalabi, deputy prime minister, tried, with limited success, to dismiss 19 of the tribunal's judges and key staff under cover of de-Ba'athification. 
These concerns could be mitigated, however, through constructive engagement with the tribunal.This does not have to mean foregoing criticism of its flaws. Indeed, engagement can create opportunities for exposing the flaws more clearly and encouraging their repair. The tribunal itself bears responsibility for making this happen; it has a poor record so far of openness to the advice of international law experts. The tribunal's process for developing its statutes and rules of procedure – its guiding documents – has been murky and some concerns remain about incomplete guarantees of fair trials in those documents. Inviting in foreign advisers would be a strong step in a more positive direction. 
A push for greater involvement by the international community on one hand, and an opening of doors by the tribunal to scrutiny and aid on the other, could help ensure that trials are fair. While there is room for improvement in the tribunal's structure and procedures, there is nothing inherently or irreparably unfair about its set-up. Whether the judges will actually conduct the trials in a fair manner, however, depends on how skillfully and impartially they discharge their duties. Iraqis want and deserve justice for the massive crimes of Mr Hussein's regime. The reality is that Iraq's special tribunal is the only vehicle for that. Ultimately, those who want justice should try to ensure the tribunal is fully capable of delivering it.
The writer is a staff member of the US Institute of Peace specialising in rule of law issues; these are her personal views