2008

Trying the Enemy?
The Iraqi Special Tribunal (*)

Danilo Zolo

1. In setting up the Iraqi tribunal to try Saddam Hussein and other exponents of the deposed regime, no consideration has been given to the possibility that it be up to Security Council of the United Nations to create an ad hoc international criminal court modeled on the courts set up for former Yugoslavia and Rwanda (obviously, the competence of these two ad hoc tribunals was excluded, along with that of the International Criminal Court at the Hague, since Iraq had not adhered to the Statute of Rome). (1) On the other hand, as is well known, the power of the Security Council to create special international courts in accord with the doctrine of its 'implicit powers' is highly controversial. (2) The hypothesis that a mixed court made up of national and international judges be established in cooperation with the United Nations, following the model used in Sierra Leone and East Timor, has also been put aside. (3) Nor has the idea that the investigations and accusations be entrusted to the occupation powers been accepted, although it was proposed.

If any weight is to be given not only to the wishes of President Bush but to the predictions of Salem Chalabi, a key figure and legal counselor in the Iraqi Governing Council, Saddam Hussein will be found guilty of genocide, crimes against humanity, and war crimes, sentenced to capital punishment, and put to death. In this event, the only uncertainty lies in whether he will be hanged or shot. Saddam will go to the gallows if he is held to be a civilian criminal; he will go before a firing squad if he is tried as the commander-in-chief of the armed forces of his country. (4)

2. There is a widespread feeling in the West that the condemnation of the former Iraqi dictator and his collaborators by a special court - as happened with the Nazi leaders in Nuremberg after World War Two - would mark an important success for law and justice and a decisive step forward towards the pacification and democratic reconstruction of a country that the Western powers have freed from a despotic, bloody regime.

Obviously, one may not agree with this point of view. Personally I do not deny that the former Iraqi dictator and his main collaborators should be put on trial. This is required by any project for the construction of a new political order to be carried out with the consensus of all the components of the Iraqi people. It is doubtful that the process of pacifying and reunifying the country - probably as an inter-ethnic and inter-confessional federation - can be achieved through non judiciary procedures based on a critical re-thinking and supersession of the past. A criminal trial by a normal Iraqi court, respecting the principle that penal laws cannot be retroactive and that the accused be tried by the 'natural' judge established by law, would be the formally correct solution, albeit not the politically most effective one. Even the often mentioned example of South Africa, which set up the celebrated Truth and Reconciliation Commission, would not seem to be pertinent in the conflict-ridden context of Iraq, with its mixture of civil war, war of resistance, and terrorism. The same holds for the hypothesis of a political amnesty, which now appears totally unfeasible.

Therefore, there would seem to be no alternative to a special tribunal, in spite of the serious limits of any court of this sort, among which are the reduction of the rights of the defense and the substantial violation of the principle of nulla culpa sine iudicio. This principle demands the presumption of the innocence of the accused, which in the present case would seem to be completely ignored, if only considering how the main accused party is being treated. Saddam Hussein is held prisoner in a secret place, not by Iraqi authorities but directly by the US police (and is illegally subjected to heavy questioning).

However, I maintain that the statute for a tribunal approved by the Iraqi Governing Council goes well beyond the legal abnormality of any special tribunal. Although bearing some of the typical normative features of Western legal culture, the statute violates several fundamental principles of rule of law that are normally observed in Western states and have been adopted by the statute of the Hague International Criminal Court. To give a sole example, art. 24 authorizes the judges of the trial chambers to fix the punishment on their own (taking into account the seriousness of the crime, the individual characteristics of the accused, and international jurisprudence), whenever a crime defined by articles 11, 12, and 13 of the Statute has no counterpart in the Iraqi penal code. (5) Here, in my opinion, we are in the presence of an infringement of the principle forbidding penal retroactive laws, since the possibility is openly admitted that articles 11, 12, and 13, contemplating the crime of genocide, crimes against humanity, and war crimes, include criminal instances which are not present in Iraqi criminal law.

3. Besides the anomalies and normative distortions to be found in the statute of the tribunal, I maintain that there are good reasons for doubting its international legality, political legitimacy, and independence, since it has been established in the context of a military occupation and at the behest of one of the occupying powers, the USA, which has a hegemonic role.

There is no use in invoking Resolution 1511 of the Security Council, as some Western jurists have done, claiming that it has 'sanitized' the original illegitimacy of the military occupation. In reality, that document has not erased a posteriori - nor could it do so - the infringement of international law by the United States and its allies. Besides, Resolution 1511 imposes precise time limits as a condition for the legitimacy of the power wielded in Iraq, within which the agenda for the approval of a constitution and the organization of democratic elections must be defined.

On the formal level, the political source of this statute is the Iraqi Governing Council, set up by the Coalition Provisional Authority, which is to say, by the US military governor, Paul Bremer 3rd. Nobody can think that the Governing Council, which has no legislative authority nor any autonomous sources of financing at its disposal, is actually the power that has willed into existence and can maintain and finance this special tribunal. Hence, it was one occupation power that decided to set up the tribunal. Therefore it is reasonable to think that the members of this tribunal, in spite of the fact that the statute repeats several times that they must be "persons of high moral character, impartiality, and integrity," will not be able to guarantee their independence from the occupying forces and impartiality toward the accused. This negative assumption is borne out by the fact that it will most certainly be the provisional government who will designate the judges, prosecutors, and any international experts to serve as assistants to the tribunal. Nor is it by chance that the provisional government, as Hanny Megally and Paul van Zyl point out, has already drafted a document that defines in detail the investigative and procedural strategy to be followed by the tribunal, with an appendix containing a list of persons presently detained who shall be the first to be put on trial. (6)

4. It is natural that the Iraqi people see this tribunal not as an expression of their political sovereignty but of the power of the United States, which, not only in the eyes of the Iraqi citizens, cannot credibly come forth as a champion of human rights, especially if one considers its obstinate opposition to the International Criminal Court and the treatment reserved for political prisoners detained at the military base in Guantánamo. Only a tribunal that is an effective expression of the political will of the Iraqi people - one that is the result of a compromise among its three main ethnico-religious components - can offer a sure guaranty of political legitimacy and independence.

Only the Iraqi people - and no other - have the right and the competence to judge the former dictator. The delicate problem is to allow the Iraqi constituency to express itself freely and peacefully. Obviously, for this to come about, the foreign military occupation must cease, along with its political and economic rules, and be replaced by neutral forces coming in part from Arab-Muslim countries and placed under the control of the United Nations. This process should lead fairly quickly and in the most transparent fashion possible to restoring to the Iraqi people their political sovereignty and constituent power, both of which are denied by the occupation forces no less than by the preceding dictatorship of the Ba'ath party. However, rebus sic stantibus, the chances of this process being carried out are few, given the opposition of the occupying forces even to the formation of a constituent assembly on the basis of general elections. (7)

5. In fine, from a philosophical point of view, I hold that one should not adhere to what I propose to call the "Nuremberg paradigm", which many Western observers cite to justify the institution of the Iraqi special tribunal. Following Hans Kelsen's lead, I think one must reject the idea that the Nuremberg Trial can be invoked as a precedent of international law whenever a Western power wants to "try the enemy" after having defeated him militarily.

Hans Kelsen, although favoring the institution of an international criminal court after World War Two, was a very severe critic of the Nuremberg Tribunal. (8) After the trial was over, in an essay significantly entitled Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?, Kelsen maintained that the Nuremberg trial and its sentences could not stand as legal precedents. If the principles applied at Nuremberg were to constitute a precedent, then after every future war the governments of the victor states could judge the members of the defeated states for having committed crimes defined as such unilaterally and retroactively by the victors themselves. (9)

According to Kelsen the punishment for war crimes ought to be an act of justice and not the continuation of hostilities in a form that would seemingly be judicial but actually be inspired by a lust for vengeance. For Kelsen the fact that only the citizens of defeated states were subjected to the jurisdiction of the criminal court was incompatible with the judicial function, and furthermore was in violation of the principle of non-retroactivity in criminal law. Also the victorious states should have to accept that any of its citizens responsible for war crimes be tried by an international court. This would have to be a true international court, i.e., an independent, impartial assembly with broad jurisdiction, not the tribunal of a military occupation with a highly selective mandate. (10)

If one accepts Kelsen's point of view, the Nuremberg military tribunal (and the Tokyo one as well), seen closely, was not about 'administrating justice.' To administer justice means seeking to put a halt to a political sequence of division, hatred, and bloodshed in order to deconstruct conflict and attempt to exorcise it through the use of judicial means. Justice, in this sense, is opposed to the factiousness of politics and the violence of war, because it is a search for a place of impartiality, with recourse to legal principles capable of settling and neutralizing conflict. If the allegory for politics is the sword, that of justice is the scale. It is for this reason that the institution of special tribunals at the conclusion of a war - international or civil - can be, not unlike amnesty, a first step toward pacifying the collective memory and inhibiting widespread vengeance.

The Nuremberg trial (together with that of Tokyo) disrupted the idea of international justice, annulling any distinction between politics and war. It was a settling of accounts, a way of putting paid to outstanding debts, the revenge of the winners against the losers. It was a parody of justice with a lethal symbolic significance. To be defeated and killed in war is normal, sometimes even honorable; but to be executed after having been subjected to the enemy's jurisdiction is an irreparable defeat, the extreme abasement of one's dignity and identity. (11) Hedley Bull, Bernard V.A. Röling and Hannah Arendt shared this rejection of 'political justice' and its Manichean opposition between the morality of the victors and the wickedness of the defeated. (12)

At present the United States is drawing up a trial against Saddam Hussein which actually reproduces the logic of stigmatization and vengeance that presided over the Nuremberg Trial. The juridical anomie and lack of legitimate power brought about by the war are such that the trial risks turning into a propaganda theater of justice with the sole purpose of hiding the misdeeds of the victors, dehumanizing the image of the enemy, and legitimizing inhumanely hostile treatment of him as an enemy of humanity.

6. International legality would require that Saddam Hussein and his collaborators, presently prisoners of the occupation forces, be turned over to a neutral international authority under the responsibility of the United Nations and held under dignified conditions of preventive detention. At the proper time they should be consigned to the Iraqi authorities, on the condition that, as I have specified, these authorities are sustained by the majority of the population and democratically represent its main ethnico-religious components. A further condition should be the exclusion of capital punishment against the former dictator (and all other accused persons), since this form of punishment has been abolished by all three international criminal courts. The ritual shedding of Saddam Hussein's blood would not be a contribution to the pacification of Iraq but a cause for further hatred and terror.

Notes

*. Journal of International Criminal Justice, 2 (2004), 313-318.

1. The International Criminal Court could not in any case wield its jurisdiction retroactively: according to Article 11 of its statute, the court is competent ratione temporis only for crimes committed after the statute goes into effect (July 2003).

2. See G. Arangio-Ruiz, "The Establishment of the International Criminal Tribunal for the Former Territory of Yugoslavia and the Doctrine of the Implied Powers of the United Nations," in F. Lattanzi, E. Sciso (eds), Dai Tribunali Penali Internazionali ad hoc ad una Corte Permanente, Naples: Editoriale Scientifica, 1995; A. Bernardini, "Il Tribunale penale internazionale per la ex Jugoslavia," I diritti dell'uomo, 21 (1993), pp. 15-25; P. Palchetti, "Il potere del Security Council di istituire il Tribunale Penale Internazionale," Rivista di diritto internazionale, 79 (1996), 2, pp. 143 seq.

3. See for example the letter sent on December 22, 2003 by Michael Posner, director of the Lawyers Committee for Human Rights, based in New York, to Abdel Aziz al-Hakim, President of the Iraqi Governing Council; see also F. McKay, "Give Hussein Due Process," Miami Herald, December 17, 2003.

4. See the interview by Salem Chalabi to the correspondent of the Corriere della Sera (December 19, 2003, p. 13).

5. According to Art. 24, paragraph e), "The penalty for any crimes under Articles 11 to 13 which do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents."

6. Cf. H. Megally, P. van Zyl, "U.S. justice with an Iraqi face?," International Herald Tribune, December 4, 2003, p. 8.

7. Cf. J. Brinkley, I. Fisher, "Top Iraqi Shiite steps in to oppose U.S. plan for indirect elections," International Herald Tribune, November 27, 2003, p. 4; see also the note: "U.S. pressing Iraqis to write constitution," ibid., p. 5.

8. In 1944 Kelsen conceived a plan for a "Permanent league for keeping the peace," drawing on Kant for the ideal of perpetual peace and the federalist model. The plan called for an important innovation to be grafted onto the old model for the League of Nations: it attributed judicial functions a central role with respect to the executive and legislative functions. The court would try single citizens responsible for war crimes, and states would be required to place them at the disposal of the court. Notwithstanding these premises, in Peace through Law Kelsen criticized the Allied Powers severely for their intent, reiterated over 1942 and 1943, to set up an international criminal tribunal made up of judges belonging to the winning nations. See H. Kelsen, Peace through Law, Chapel Hill: The University of North Carolina Press, 1944, p. 88 seq. (New York: Garland Publishing, Inc., 1973²).

9. Cf. H. Kelsen, "Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?," The International Law Quarterly, 1 (1947), 2, p. 115. Kelsen returns to the subject also in Principles of International Law, New York: Holt, Rinehart and Winston, Inc., 1967³, pp. 215-20.

10. Cf. H. Kelsen, Peace through Law, op. cit., pp. 110-15. Kelsen had no doubt that also the allied powers had violated international law. In particular, Kelsen held that the Soviet Union, by invading Poland and declaring war on Japan, had committed war crimes punishable by an international tribunal.

11. Cf. P.P. Portinaro, Introduction to A. Demandt (ed.), Processare il nemico, Turin: Einaudi, 1996, pp. XXI-XXIV (original ed.: Macht und Recht. Große Prozesse in der Geschichte, Munich: Oscar Beck, 1990).

12. See H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, New York: The Viking Press, 1963; Bernard Röling holds that the international post-war trials were used by the victors for propaganda purposes and to cover up their own misdeeds; see B.V.A. Röling, "The Nuremberg and the Tokyo Trials in Retrospect," in C. Bassiouni, U.P. Nanda (eds), A Treatise on International Criminal Law, Springfield: Charles C. Thomas, 1973. According to Hedley Bull (The Anarchical Society, London: Macmillan, 1977, p. 89), the symbolic function of the trials was obscured by the "exemplary" and selective nature of their pronouncements.