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Just days before the dramatic capture of Saddam Hussein, the Iraqi Governing Council and the U.S.-led Coalition Provisional Authority finished work on a statute establishing an independent tribunal to try Hussein and senior members of his regime. The court, known as the Iraqi Special Tribunal for Crimes Against Humanity, will be held in Baghdad and will rely almost exclusively on Iraqi nationals to serve as judges, prosecutors and investigators. If Hussein’s trial is run professionally, international law experts agree that holding the deposed dictator accountable to his own subjects in Iraqi court could provide a powerful national catharsis and be an important step toward building democracy in Iraq. Still, critics decry the court as another example of the Bush administration’s go-it-alone approach and question whether Iraq’s court system — crippled by decades of corruption and isolation — has the expertise or the credibility to handle complex war crimes cases on its own. While the statute provides for international advisers and possibly non-Iraqi judges, it creates no formal role for the United Nations. “I don’t think anyone has demonstrated that the Iraqi justice system will be capable of taking on the entire burden,” says Georgetown University law professor David Scheffer, former U.S. ambassador at large for war crimes issues during the Clinton administration. “In my view, there has not been a strong enough embrace of international involvement.” Though U.S. officials have not said where Hussein will ultimately face trial, President George W. Bush pledged last week to “work with the Iraqis to develop a way to try him in a way that will stand international scrutiny.” Salem Chalabi, legal adviser to the Iraqi Governing Council and the nephew of council member Ahmad Chalabi, a controversial figure in Iraqi politics, says the council’s goals are “to demonstrate a fair trial and to have Iraqi ownership of the process.” Last week, 100 Iraqi judges and lawyers completed a two-week training course on war crimes and international law put on in Baghdad by the Coalition Provisional Authority. Among the discussion topics: witness protection, evidence collection and the exhumation of mass graves. For many members of the Iraqi bar, it was their first exposure to the lessons learned from international tribunals such as the courts established in the aftermath of strife and war in Rwanda and the former Yugoslavia. Those pushing for broader international participation maintain that bringing former regime members to justice will require resources and experience that the Iraqi judicial system cannot provide alone. In addition, they argue that Hussein must be held accountable not just to Iraqis, but to the world community, for his alleged crimes. “While Saddam’s crimes have been largely against the Iraqi people, there are many, many other victims — Iranians, Kuwaitees, Americans and others. For those people to feel invested in this, there needs to be robust international participation,” says Elisa Massimino, director of the D.C. office of the Lawyers Committee for Human Rights. “If it’s done right, this could really be the way the international community pulls back together after the divisiveness over the decision to go to war.” Instead, U.S. support for an Iraqi tribunal, on the heels of a decision to bar nations that opposed war in Iraq from lucrative contracts, has deepened the rift between the United States and the international community. And the desire of Iraqi leaders to impose the death penalty on Hussein and members of his regime makes compromise unlikely. Indeed, U.N. Secretary General Kofi Annan closed the door last week to U.N. support for any tribunal that included the death penalty as a punishment. “This tribunal will cost hundreds of millions of dollars, if it’s done professionally,” says Scheffer. “It’s extremely important that [the Iraqis] recognize that imposing the death penalty will shut the door to any U.N. or European effort to support the court.” Without funding from the international community, the United States could find itself in the awkward role of underwriting an Iraqi tribunal, thus creating the unwanted appearance of U.S. control. “If the courts are Iraqi and the people behind it are the United States, then you have a concern about how this will be perceived in the Arab world and globally,” says Hanny Megally of the International Center for Transitional Justice. Salem Chalabi, who helped to draft the statute creating the Iraqi special tribunal, says the Iraqi council will not abandon the death penalty to woo international support. “I think the Iraqi people feel that death should be included,” says Chalabi, a London-based attorney who attended Northwestern University Law School. “If someone is found guilty of killing hundreds of thousands of people and gets only a 20-year sentence, that would be seen by the Iraqi people as illegitimate.” In eschewing U.N. sponsorship, the Iraqi court takes an untested approach to prosecuting crimes against humanity, say international law experts. It is neither fully international — like the Yugoslavia and Rwanda courts — or a hybrid modeled after the tribunal in Sierra Leone, where some positions are held by Sierra Leone nationals but the majority of the judges are from other countries. Rather, under the Iraqi framework, the role of foreign jurists is far more limited and informal. The only official roles established for international experts are for “advisers” to provide assistance and for “observers” to monitor the court’s performance. The governing council can, but is not required to, appoint non-Iraqis to serve as judges. Many critical posts, including all investigative judges and prosecutors, must be filled by Iraqi nationals. (The statute actually contains a provision that all judges must be Iraqi nationals, but Chalabi says that does not reflect the final version.) Neil Kritz, director of the Rule of Law Program at the U.S. Institute of Peace, says the Iraqi court reflects a shift away from pure international courts toward more local involvement. “One of the lessons we’ve been learning over and over is that there needs to be empowerment of local society,” says Kritz, the editor of a three-volume book on transitional justice. “If this is going to have a transformational effect, they need to feel this is something they are doing for themselves.” In crafting the proposal, the Iraqi Governing Council sought extensive input from international law experts such as Kritz, as well as human rights organizations, such as Human Rights Watch and the Lawyers Committee for Human Rights. The final statute also reflects suggestions from the Coalition Provisional Authority, the Bush administration and the government of Britain. According to several lawyers who reviewed draft copies of the statute, the provision allowing international judges was added during the final stages. Lawyers experienced in war crimes cases say the addition of non-Iraqi judges would boost the court’s integrity. “Obviously, you need informed and impartial judges,” says Patricia Wald, who served as a judge on the International Criminal Tribunal for the Former Yugoslavia and as chief judge of the U.S. Court of Appeals for the D.C. Circuit. “Even if you do find Iraqi judges who aren’t tainted in any way, I think the lack of exposure of the whole system for decades to what was happening in the outside world could be a real problem.” Meanwhile, international scholars aligned with the Bush administration insist that more international participation does not necessarily mean more justice and point to the high price tag and plodding pace of existing international tribunals. The trial of former Yugoslav dictator Slobodan Milosovic, for instance, has lasted nearly two years and is far from over. “The track record of international tribunals has been spotty at best,” says John Yoo, a law professor at University of California, Berkeley’s Boalt Hall School of Law and a former Bush Justice Department official. “I think what’s important is not whether the court is international, but whether the procedures are good ones.” While the structure of the Iraqi tribunal includes limited international participation, the legal framework is built largely on principles of international criminal law. In enumerating the crimes over which the court has jurisdiction, the statute adopts definitions contained in the Rome Statute of the International Criminal Court. In addition, the court is given jurisdiction over three crimes from Iraq’s existing criminal code: manipulation of the judiciary, waste of national resources and public funds, and unwarranted aggression against an Arab country. “What we’ve developed is a fusion of international law and Iraqi law,” Salem Chalabi says. “We’ve gone out of our way to include international due process standards so that defendants have a lot more rights than in the Iraqi system.” Wald, the former judge of the Yugoslavia court, says the key question is whether Hussein can “get a fair trial when all is said and done.” “I think it’s possible,” she adds, “but I think everyone is going to have to work terribly hard to make it so.”

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