October 4, 2004

Spider holes and pitfalls

By: Ursula Lecznar

On December 14, 2003, Ambassador L. Paul Bremer summed up the end of the intense six-month manhunt for Saddam Hussein with three words: “We got him.” President George Bush later asserted that “the former dictator of Iraq will face the justice he denied to millions.” The formation of the Iraqi Special Tribunal to prosecute Hussein in Iraq represents the first step, albeit a contentious one. For sixty years, the international community has preferred to create international ad hoc criminal tribunals to prosecute violators of international law rather than to rely on the national courts of the home country of the accused. In Hussein’s case, however, it is preferable to prosecute him by an Iraqi judiciary in an Iraqi court.

First, a little history is in order. The creation of the Nuremberg Tribunal and the Far East companion Tokyo Tribunal represented the first instances of war crimes prosecutions under purely international jurisdiction. The Charter of the United Nations, created soon thereafter, gave the United Nations Security Council the power, in Chapter VII, to undertake far-reaching actions in the name of international peace and security. Under the legal rubric created by the Nuremberg Tribunal and Chapter VII, the UN formed the second international ad hoc tribunal following reports of the humanitarian crisis arising from the civil war in the former Yugoslavia.

Perhaps the most important distinction between the Nuremberg Tribunal and the International Criminal Tribunal for the Former Yugoslavia (“ICTFY”), is that the ICTFY exercises concurrent jurisdiction with national courts. Concurrent jurisdiction implies that two bodies, the ICTFY and Yugoslav national courts in this case, have the legal authority to investigate and try individuals under their respective jurisdictions. Concurrent jurisdiction makes it more likely that the accused are impartially tried in an expert legal system and that national courts are not drained of the resources required to prosecute such large and complex cases. Political divisiveness runs deep in the Former Yugoslavia and the fragmented judicial system that remained after the war was in no way capable of handling the large and complex criminal cases of thousands of suspects. Adjudication under international auspices was a real necessity.

Concurrent jurisdiction also has drawbacks. Grave difficulty arises in coordinating investigations and gathering evidence with national courts because international investigators are denied access to certain locations. Recently, the Federal Republic of Yugoslavia denied a visa to ICTFY prosecutor Louise Arbour when she and her investigative team tried to enter Kosovo to investigate allegations of a massacre of ethnic Albanians. Concurrent jurisdiction is especially perilous given the application of international criminal law that differs from national law and the attendant potential infringement on national sovereignty. This stricture is particularly striking with respect to penalties. The source of law regarding punishments applicable in international ad hoc tribunals is neither self-evident nor well developed and is often incongruent with penalties under national laws. For example, the Statute of the ICTFY declares that the ICTY should follow Yugoslav sentencing procedures, but difficulty arose because Yugoslav law provides for the death penalty, not life imprisonment. The ICTFY ultimately decided to review Yugoslav sentencing principles, but not to be bound by them.

Given the novelty of an international ad hoc tribunal created under UN auspices, and the contentious jurisdictional issues involved with the ICTFY, the question of why accused war criminals were not prosecuted solely in Yugoslav courts naturally arises. The answer may lie in the widely held conviction among international scholars that the continued affirmation of the laws of war and humanitarian law fundamentally depends on a centralized forum of enforcement. Many see the ICTFY as necessary for more rigorous enforcement of international legal norms. These beliefs, along with the perceived heavy moral impetus for a means of punishment, created a heavy push from within and outside the UN to erect the ICTFY. This proactive climate within the international community combined with political circumstances to spur the creation of the second international criminal tribunal, the International Criminal Tribunal for Rwanda (“ICTR”), in the year following the creation of the ICTFY.

The ICTR also exercises concurrent jurisdiction and reaps the same benefits and faces the same problems that befall the ICTFY. One notable peculiarity that has arisen in Rwanda is that there is an incredibly large number of suspected war criminals. The Rwandan genocide was so well organized and pervasive that the ICTR and the Rwandan national courts face the daunting task of trying tens of thousands of suspected war criminals. Because the Rwandan judiciary system was thoroughly decimated during the conflict–leaving just forty magistrates in the country–the national courts have no practical choice but to coordinate investigations and prosecutions with the ICTR.

In contrast, Iraq is in a process of successful reconstruction that stands in remarkable contrast to the legal and political landscapes of Yugoslavia and Rwanda following the civil wars in those countries. For the first time in a quarter century, Iraq now has an opportunity to exercise legal authority in a manner comporting with accepted practice around the world. Seizing on this opportunity, Iraq has taken the great step of enacting legislation that enables prosecution of war crimes and crimes against humanity under international law as well as violations of Iraqi criminal law. In December, the Iraqi Governing Council promulgated the Statute of the Iraqi Special Tribunal that set the legal framework to prosecute Hussein.

Iraq has also taken measures to ensure that the proceedings do not turn into a politically tainted “show trial” designed to enact victors’ justice. The Iraqi Special Tribunal is grounded in the principles of the rule of law, including independence from other governmental bodies and transparency of the proceedings. Judges and prosecutors are appointed by the Governing Council after vetting for corruption, complicity in Ba’athist atrocities, and dubious political associations. The large number of judges and investigators is designed to ensure a healthy mix of political, religious, and legal backgrounds. The Tribunal Statute allows for the appointment of non-Iraqi judges to advise and monitor proceedings, which adds to the process the important elements of international legal expertise and impartiality.

A significant benefit of prosecuting Hussein in the Iraqi Special Tribunal is avoidance of the pitfalls of concurrent jurisdiction. For example, there is no need to coordinate investigative responsibilities with an international ad hoc tribunal. Given the extensive rule of the Ba’athist regime, investigating its crimes is no small task and requires access to sites in Iraq that could prove difficult for international investigators. The presence of a single national investigative body lessens the likelihood that locals would deny foreigner investigators access to sites. Additionally, the United States Department of Justice has already lent its expertise to aid Iraqis in developing tactics to ensure that investigators have as complete access to sites as possible.

Another benefit is that there is no possibility for an international prosecutorial body to encroach on Iraq’s sovereign power and apply international criminal law that may be inconsistent with Iraqi criminal law. Sovereign states have a fundamental right to exercise exclusive jurisdiction over and prosecute their own nationals under their own laws. International criminal law has yet to embrace the unique aspects of Islamic substantive law, including specific crimes and methods of sentencing. Prosecuting Hussein in the Iraqi Special Tribunal ensures application of laws that reflect Islamic legal principles and provides the opportunity to resuscitate an Iraqi criminal code cleansed of egregious Ba’athist political influence.

Arguably the greatest benefit to prosecuting Hussein in the Iraqi Special Tribunal is the circumvention of contentious Security Council action under Chapter VII of the UN Charter. The Security Council relied on Chapter VII to create the ICTFY and the ICTR, and such action would be necessary to create an international ad hoc tribunal in this case. Hussein no longer poses an ongoing threat to the peace in Iraq, which is required to trigger Security Council action. By contrast, Slobodan Milosevic and other warmongers were still in power when the ICTFY was created; to this day, notorious leaders such as Prime Minister Radovan Karadic of the Republika Srpska, and Serbian General Ratko Mladic, still elude capture. Likewise, the perpetrators of the Rwandan genocide were able to flee to Zaire, Burundi, and other countries in the Great Lakes region of Africa where they continue to be a source of conflict.

The international community has pushed for the primacy of international ad hoc tribunals over domestic prosecutions of war criminals to ensure impartial prosecutions and to help shoulder the burden of conducting lengthy investigations and proceedings. However, prosecuting Hussein in the Iraqi Special Tribunal is preferable because the circumstances in Iraq differ considerably from those that spurred the creation of international ad hoc tribunals. Iraq is set on rectifying these same problems, and these efforts, combined with the benefits of prosecuting war crime under national jurisdiction, make a good argument for prosecuting Hussein in the Iraqi Special Tribunal.

Ursula Lecznar is a 2002 graduate of the University of Dayton School of Law and resides in Washington, D.C.