Global Policy Forum

By Anthony Dworkin

"The day of Iraq's liberation will also be a day of justice," Pierre-Richard Prosper, the U.S. Ambassador for War Crimes Issues said recently. As the fighting stage of the war in Iraq winds down, U.S. officials are beginning to focus on how to hold Iraqis accountable for war crimes and atrocities committed in the past and during the present conflict.

The clearest indication of U.S. thinking on this issue was given in a briefing by Prosper and W. Hays Parks, special assistant to the Army's Judge Advocate General, on April 7. In general, Parks suggested, everyone against whom there was credible evidence of war crimes would be prosecuted: "The position of the United States government is to do everything in its power to bring to justice anyone who, by action or inaction, is responsible for violations of the law of war." Prosper added that the U.S. had begun to catalogue all Iraqi violations of international humanitarian law, and that U.S. soldiers in the field had been charged with securing and preserving any evidence of war crimes they uncovered.

The two officials laid out a process that would involve different courts for different categories of criminals. Specifically, the United States seems to be dividing the crimes it intends to seek justice for into two categories: war crimes carried out during the war against coalition forces, and past atrocities committed by Saddam's regime.

For crimes committed during the war, the administration intends to try suspects in U.S.-run courts. "We believe that we have the sovereign ability and right to prosecute these cases," Prosper said. The administration has not yet decided on the precise form these trials will take, but Parks made it clear that there are three options: trials before standard military courts-martial, trials before military commissions, or trials in civilian courts.

According to Diane Orentlicher, Professor of Law at American University's Washington College of Law, international law sets detailed requirements for the trial of any Iraqi regular soldiers who are given prisoner of war status. (Regular soldiers who commit war crimes do not forfeit the right to be treated as POW's.) Under the third Geneva Convention, POW's may be tried either by military courts or, where the laws of the detaining power expressly permit, by civil courts (this is the case with the United States).

If tried by a military court, they can only be convicted and sentenced "by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power" (Article 102) – in other words, they would have the same rights as U.S. military personnel who were being court-martialled. In addition, the laws specify that POW's would have the right to be represented by counsel, to have the assistance of an interpreter, to have fair notice of the charges against them, and the right to appeal.

It seems most likely that Iraqi POW's accused of war crimes will be tried in regular military courts. However, not all Iraqi detainees are likely to be given POW status. Some of those picked up are members of irregular forces – such as the Fedayeen Saddam or Ba'ath Party militias – and it may be decided that they do not meet the threshold to qualify as prisoners of war. (The U.S. will hold a series of tribunal hearings to decide which category individuals should be assigned to, if there is any doubt.)

For detainees who are not given POW status, the U.S. is not obliged to follow the procedural rules required for court-martial of U.S. soldiers. In this case, Orentlicher said, it need only meet certain basic minimum standards set out by international law. A summary of these fundamental guarantees is found in Article 75 of the first Additional Protocol to the Geneva Conventions (the U.S. has not ratified Additional Protocol I, but this article is generally taken to be a reflection of binding customary law.) It states that all detainees should have the right to be tried by "an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure" – including "all necessary rights and means of defence." For instance, defendants must be allowed the right to examine witnesses against them.

In other words, it is possible that these irregular combatants will be tried before specially-convened military commissions, perhaps along the lines that have been proposed for the al-Qaeda detainees who are being held in Guantanamo Bay, Cuba. As far as the previous crimes of Saddam Hussein's regime, Prosper emphasized that the United States believed the Iraqi people should take the lead in enforcing accountability. He said that a process with "indigenous roots" would do most "to reinstate the rule of law in Iraq," and he said that the U.S. was working with members of the Iraqi exile community to create an appropriate mechanism. Prosper also said that the views of "internal personalities" would be sought at an appropriate moment.

By talking of an Iraqi-led process, Prosper appeared to rule out a wholly international tribunal, of the sort that was set up by the United Nations for the former Yugoslavia and Rwanda. (Prosper himself was formerly a prosecutor for the U.N.'s Rwanda tribunal.) Nevertheless, he admitted that there would be "a question as to whether or not the system within Iraq has the capacity to address these abuses." Therefore, Prosper said, the United States was "prepared to assist in any way we can by providing technical, logistical, human and financial assistance," and he said that the U.S. believed that "the members of the international community should also step forward and be prepared to assist."

In Sierra Leone, East Timor and Cambodia, courts have been set up which combined a large domestic element with some international representation under the auspices of the United Nations. But the administration's comments suggest that this possibility has been ruled out for Iraq – it seems the courts will be run by Iraq and the United States, rather than the United Nations. Orentlicher suggested that one reason for this was that U.N.-backed tribunals typically do not allow the death penalty, which both the United States and large parts of Iraqi society may favour for certain cases.

Orentlicher said that in principle she supported the idea of Iraqi involvement in trials, because it would give the country greater ownership of the process of accountability: "There ought to be a starting presumption that domestic processes are to be preferred to international ones." She added that the precise form of the process should be decided through "wide-ranging and inclusive deliberations among Iraqis, along the lines of the deliberations that took place in South Africa following the transition to democracy there."

But Orentlicher said she doubted that the Iraqi judicial system had the capability to mount trials by itself at the moment – and that if there was to be an international element, it should be sponsored by the United Nations, not just the United States. "To have the United Nations involved would give a greater appearance of impartiality, and make the process more credible," she said. A process that was essentially dominated by the United States would be open to "the impression of victor's justice."

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