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Wrapping Justice in the American Flag

Every modern war has its defining picture — the iconic image that stands for future generations as the summation of what the war was about. For World War II, it was the raising of the flag at Iwo Jima; for Vietnam, the naked girl fleeing a napalm attack; for the Six-Day War, the tousle-haired soldier weeping at the Western Wall.

What will be the defining photograph of the Iraq war? Will it be the one of the statue of Saddam Hussein draped with an American flag?

Recognizing that such imagery sends the wrong message of triumphalism and conquest, the United States has now effectively banned the display of the American flag in Iraq, except at its embassy. But the Bush administration’s vision of postwar justice in Iraq remains wrapped in the American flag.

Last week, in a press conference and subsequent congressional testimony, the administration announced plans to set up “Iraqi-led” courts consisting of hand-picked Iraqi jurists to prosecute top officials of the Saddam Hussein regime for genocide, war crimes and crimes against humanity. Two weeks ago, a group of exiled Iraqi jurists met in Washington to begin receiving training for the job. This wrapped-in-the-American-flag approach will not be effective or credible, and it will not bring the justice to Iraq that its people want and deserve.

The Saddam Hussein regime has committed atrocities against the Iraqi people for decades. Stories of its brutality and depravity have been leaking out for many years, and the leak has now become a flood. Torture, rape, murder and genocide have been committed on a massive scale. Human Rights Watch estimates that at least 250,000 people have been “disappeared” since the late 1970s, many of whom are probably dead. Delivering justice will be a massive, serious and long-term job. Experience shows that in the disorder of a postwar climate, only an internationally led civilian tribunal can credibly prosecute those most culpable for such horrific crimes.

The classic model for postwar tribunals is the creation after World War II of the International Military Tribunals at Nuremberg and Tokyo. These were great steps forward for their time, but they have been criticized since then for having given the appearance of “victors’ justice.”

Not all military tribunals are “victors’ justice.” The United States is entitled to prosecute in military tribunals any Iraqi perpetrator of crimes against American forces, such as execution of prisoners, exposing prisoners of war to the media, and “perfidy” — that is, attacking American troops while pretending to surrender.

For broader crimes against civilians and against humanity, however, norms and standards have been created over the years since Nuremberg that have near-universal legitimacy. A particularly important precedent was set in the last decade with the formation of the International Criminal Tribunals for Yugoslavia and for Rwanda. New tribunals are now operating in or contemplated for Sierra Leone, Cambodia and East Timor. The latter are “mixed” tribunals, proposing to use both international jurists and untainted local ones.

In light of this experience, it is simply no longer legitimate for the victor unilaterally to handpick the tribunal that will dispense post-conflict justice to the top-level perpetrators. Such a court will inevitably appear to be a puppet of the appointing authorities. The Bush administration says it recognizes that it must avoid such “handpicking” when it comes to Iraq’s future political leaders. Why would it not reach the same judgment regarding the tribunal that will pave the way for the rule of law in Iraq?

There are other crucial questions. Who are the Iraqi jurists that America will anoint? Where were they while the crimes were being committed? Those who were part of the old regime are seriously compromised. Those who were exiles and dissidents will be seen as having scores to settle, rendering their impartiality subject to serious question.

This is not to suggest that an international tribunal should exclude Iraqis. There are undoubtedly qualified Iraqi jurists who are uncompromised and impartial. But their numbers cannot be large — certainly not large enough for the huge task that lies ahead. And in any event, given the way this war has unfolded, the appearance of impartiality will itself be compromised by yet another unilateral American intervention.

This is also not to suggest that postwar “transitional” justice in Iraq should be solely in the hands of an international tribunal. Iraq will rebuild its criminal justice system and it will be, as it should, the front line for holding accountable the second- and third-tier thousands whose hands were bloodied in the implementation of the torture and the killing. Tomorrow’s Iraq must be a sovereign state, in charge of its own affairs. Moreover, as a purely practical matter, prosecution by an international tribunal alone is not feasible. Experience suggests that such a tribunal can prosecute no more than about 200 to 300 individuals before time and expense become prohibitive. Some 10% of Iraqis belonged to the Baath Party. If even a small percentage of them are culpable, the numbers would overwhelm an international tribunal.

In the coming months and years, much of the job of holding all but the most guilty accountable should be done by a combination of local criminal courts; truth commissions, where the guilty can be pardoned in exchange for truthful testimony (reconciliation seldom emerges unless preceded by truth), and vetting — ensuring that the most culpable at least do not end up serving in Iraqi institutions such as the army and the police.

As for the most culpable, why does Washington resist an international tribunal when any other approach is so obviously flawed and so much is at stake? One answer: The United States does not want its own conduct scrutinized: Questions have been raised about American use of cluster bombs, targeting civilian morale, and the way in which it used lethal force in urban areas. This is not to suggest that America is necessarily guilty of serious war crimes. But any tribunal that does not have the independence to follow the evidence where it leads is not credible.

A second reason: The United States is dead set against any criminal justice system that does not have the death penalty option. International tribunals, and virtually all of the democratic states that participate in them, have thrown the death penalty into the dustbin of history.

Finally, and, alas, most germane, the Bush administration generally hates international justice. It tried to smother the International Criminal Court in its crib, and since that effort failed, it has been on a crusade to threaten and intimidate the international court’s supporters and to constrict the court’s jurisdictional mandate wherever it can. Any success by an international tribunal would constitute an implicit reproach of these American actions against the international court. Better to abort this partially born baby than to give it the right to life.

Sadly, the International Criminal Court, which is almost up and running with a highly professional, nonpolitical, regionally- and gender-balanced panel of jurists, cannot be useful in dealing with the crimes of the Saddam Hussein regime — its jurisdiction pertains only to crimes committed after July 1, 2002. Sadder still, the Bush administration is unlikely to heed any of the exhortations that it invite the international community to full partnership in rebuilding all sectors of Iraq, including the justice system. The price for this continuing expression of American hubris will be paid — again and again — by innocent, long-suffering Iraqis.

Kathleen Peratis, counsel to the New York law firm Outten & Golden LLP, is a member of the board of Human Rights Watch and a frequent contributor to the Forward.

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