Jewish World Review Dec. 30, 2003 / 6 Teves, 5764

Elena Baylis

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Reprisals against Baathists remind us: Iraqi special tribunal isn't just for Saddam | The world is abuzz with the question of what to do with Saddam Hussein. Should he be tried by an Iraqi court, or by an international tribunal? Do other nations such as Iran or Kuwait get a crack at him? What about the death penalty?

Of course, trying Saddam is important, for all the reasons that have been set forth many times before: justice for his victims, creating an undeniable public record of his atrocities, and building support for the new Iraqi government, among others.

But we are forgetting something important in all of this hubbub. It is not just Saddam Hussein who must answer for his crimes. Indeed, relatively few people suffered at Saddam's hands directly. Instead, neighbor betrayed neighbor, and party members profited at the expense of colleagues and friends. Ordinary officials carried out arrests, torture and executions.

The violent reprisals against Baathists remind us that when people cannot seek justice through the legal system, vigilante justice is the inevitable result. If the Iraqi people are to live together in peace, not only Saddam but the others who were complicit under his regime must be called to account.

But this is easier said than done. It is hard enough to provide a fair trial to Saddam Hussein himself. The Iraqi Governing Council has said it will place him before a special tribunal it has established to try cases of crimes against humanity, genocide, war crimes and crimes relating to corruption and misuse of public office under his regime.

To try Saddam successfully, this court must build credibility with two demanding constituencies: the international community and the Iraqi people. It can do so only by employing unassailably fair laws and procedures overseen by experienced, impartial judges. But experience in Yugoslavia and Rwanda suggests that there will be a trade-off between international and national satisfaction with the process. The international community is already questioning the capability and impartiality of the tribunal, while the Iraqis view the international interest in the proceedings as substantially secondary to their own claims.

But however difficult it might be to try Saddam, the task of calling ordinary citizens to account is more monumental still. Of course, ordinary citizens deserve the same guarantees of legitimacy and fairness that are set for the trial of Saddam himself. And the tension between the international and national communities over control of the process will remain acute.

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But there are other complications when crimes have been perpetrated throughout a society by many citizens against many others. First, there is the problem of sheer numbers. When the Iraqi Human Rights Society began accepting complaints of abuses, it received more than 7,000 accusations in such short order that it was unable to continue.

No country's court system, however well-managed, could process a sudden influx of thousands of cases. Much less can courts in shambles from a complete and sudden overhaul of the entire legal system. And so, 10 years after the genocide in Rwanda, 12 years after the revolution against the Derg regime in Ethiopia, defendants still await their trials. When defendants are held in detention for years without trial, neither victims nor accused receive the justice they deserve.

How can the Iraqis avoid such a morass? International experience advises against regarding the special tribunal as a panacea. The international tribunals for Rwanda and Yugoslavia have been notoriously slow to process cases. Although it may be provided with the best resources, such a tribunal can only constitute itself and function at a measured pace.

But even if the concerns of legitimacy and efficiency are satisfied, there remains another fundamental concern. Will criminal trials re-establish social stability and build support for a new government, or will they merely perpetuate social divisions and create bitterness over "victor's justice"?

Experience in Sierra Leone, South Africa, and elsewhere suggests alternatives that may promote social reconstruction more effectively than detaining and trying all those accused of crimes. A criminal tribunal could try those accused of high-level planning and of the most atrocious crimes, so that those most culpable do not escape punishment. A truth commission could investigate and carry out public hearings on lesser crimes, offering amnesty to those who cooperate, thereby creating a public record and bringing closure to victims. A reparations commission could oversee the return of seized property, as well as providing for monetary payments, medical care, and other vital services for victims.

Whatever approach the new Iraqi government takes, one thing is sure. To rebuild Iraq, it will not be enough to try Saddam Hussein. Something must be done with all the ordinary Iraqis who stand accused of crimes under his regime.

Elena Baylis is an assistant professor in the University of Pittsburgh School of Law. In 2001, she represented the Iraqi National Congress in Washington, when it was a London-based opposition group receiving funding from the U.S. Congress. Comment by clicking here.


© 2003, Elena Baylis