Justice for Genocide
What is the significance of the Iraqi Tribunal's first cases in the evolution of the prosecution of genocide?
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David
M. Crane |
The trial of Saddam Hussein was important. Not just for the victims and the restoration of the rule of law in Iraq, but for the continued respect by the citizens of Iraq for institutions in general. We tend to forget that the Iraqi people are emerging from over three long decades of darkness and despair, repressed by a megalomaniac who ruled absolutely. The rule of the gun was more powerful than the rule of law in Iraq. Saddam's trial could begin a process whereby this is reversed. Get it wrong and the fledgling democracy that is the new Iraq is in trouble. In that light I proffer three thoughts for the reader to consider related to the IST and getting it right:
First, the cornerstone of any emerging democracy, such as Iraq, is the rule of law. If there is no respect for the law, then much of what has been accomplished may be for naught. The rule of law has to be seen as more powerful than the rule of the gun. A shaken confidence in the due process of law can spur support for resorting to other ways to build society and new government. The results may not be what anyone wants. The past and current actions in the courtroom by the presiding judges and the indictees may bring the power of the law into question by the Iraqi people.
Secondly, the process has to appear to be fair and efficient. Part in parcel to establishing the rule of law and respect for the law comes the perception that the law itself is fair and efficient. In Iraq, fairness and general efficiency in the legal process is not a given, nor is that process understood. The lingering concerns that the United States continues to manipulate the process, whether true of not, have made the IST snake-bitten in the eyes of the international community and the Iraqi people. Coupled with the fact that a current presiding judge lived in a town that was destroyed by Saddam causes one to doubt the fairness of the process. The inefficient and public spectacle of two of the current three executions is indicative of its inefficiency and political bent.
Third, the Iraqi people are going to have to live with the result, regardless of how the process ends. The rule of law, its fairness and efficiency, make it easier for the Iraqi people to live with the results, despite the outcome. Thus, all three of these concepts have to merge in a relatively seamless way to allow for the transition process from anarchy to democracy to move forward under the rule of law.
Despite its reputation as a bastard among the various tribunals, the IST was the only forum by which one of the 20th Century's mega-murderers was held accountable for his misdeeds. The judges and prosecutor had to get it right from the very beginning or loose a rare chance to face down the beast of impunity in the Middle East and demonstrate that the law is fair, that no one is above the law, and that the rule of law is more powerful than the rule of the gun.
After the 60th anniversary of the end of humankind's first attempt to face down impunity at Nuremberg, in 1946, the trial of Saddam Hussein and his henchmen must reflect those key principles established at Nuremberg of fairness, openness, and respect of international norms or we will see a step backwards for international criminal justice. Sadly what is currently happening in Baghdad regarding the appearance of fairness and efficiency is lacking. It remains to be seen whether they have it right, I have my doubts.
David M. Crane was appointed a distinguished professor of practice at Syracuse University College of Law in the summer 2006. Prior to joining the College of Law, he was the Chief Prosecutor of the Special Court for Sierra Leone. With the rank of Undersecretary General, Professor Crane's mandate was to prosecute those who bear the greatest responsibility for war crimes, crimes against humanity, and other serious violations of international human rights committed during the civil war in Sierra Leone during the 1990's. Professor Crane was the first American since Justice Robert Jackson and Telford Taylor at Nuremberg, in 1945, to be the Chief Prosecutor of an international war crimes tribunal.
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