BOSTON AND WASHINGTON
The first criminal charges against Saddam Hussein, filed Sunday by the Iraqi Special Tribunal, show that an important but not often heralded process is at work beneath that nation's turbulent surface.
More than just a court, the tribunal is a key player in progress being made in the establishment of rule of law in Iraq.
Why? Because the tribunal, an ad hoc court under Iraqi law created to mete out justice to the ancien régime, will foster a rule-of-law culture; train a generation of Iraqi judges and lawyers in criminal prosecution; and set new standards for detentions, interrogations, and trials.
Despite its transformative potential, however, the tribunal has, since its inception in December 2003, come under fire from a variety of sources. Some argue that it is insufficient to safeguard the rights of the accused; others object to its power to apply the death penalty. Most critics would have preferred a UN tribunal. Whether the Iraqi Special Tribunal satisfies Western standards or not,these critics ignore the net benefits to Iraq of a locally run tribunal in aiding the establishment of democracy.
By any measure, Saddam Hussein's 24-year rule was brutal, and there is broad agreement in the new Iraqi government and in the international community that the former regime's disdain for its people should be laid bare in a court of law. There is a split in the international community, however, on how best to organize the trials. Critics, including the UN, contend that the trials can satisfy international standards of due process only if they are authorized by an international mandate and are presided over by eminent international jurists. For these critics, the appropriate model is a war-crimes tribunal similar to the one established by the Security Council for the former Yugoslavia in The Hague.
But Iraq is not Yugoslavia. The conditions that led the international community to institute the Yugoslavia Tribunal - principally, lack of political will, infrastructure, and adequate resources in Yugoslavia itself - are absent in Iraq's case. In fact, not only are Iraqis willing and able to conduct the trials, but their doing so within Iraq can play a key part in establishing the legitimacy of the new Iraqi government and promoting the rule of law.
The first case against Hussein is related to the 1982 massacre of Shiite villagers following a failed assassination attempt against him. By dragging into plain view this atrocity and others committed under Hussein's repressive rule, these trials will undermine any lingering nostalgia for the "good old days" of his regime and discredit his remaining supporters.
A key benefit to having the Iraqis conduct these trials is that they will be held locally and in Arabic, making them fully accessible to the Iraqi press and the Iraqi public. Like Germans after Nuremberg, Iraqis sympathetic to the Baathist regime won't be able to say, "it didn't happen."
Trials that reach the hearts and minds of Iraqis reinforce other important social and political messages. By establishing individual rather than collective responsibility for these crimes, they will place blame where it belongs: on the shoulders of Hussein and his cabal, and not on the Sunnis collectively or any particular village or clan.
Moreover, by avenging wrongs in an orderly and institutionalized manner rather than through blood feud and violent mob action, the trials will further buttress the transition to orderly self-rule and demonstrate the appropriate place of individual rights in a democratic society. It is an important lesson in a society formerly ruled by a despot that no individual is above the law and that even the accused are protected until proven guilty. By putting Iraqis in charge, they become responsible for upholding these principles.
The Iraqi Special Tribunal is poised to strengthen the atrophied Iraqi judicial system. Since Hussein's fall, its judges, prosecutors, and counsel have been instructed by international experts in human rights law, evidence collection and management, and courtroom administration. This education, and the actual experience of the trials, will be invaluable in raising the standards of Iraq's bench and bar.
Human rights groups contend that the tribunal may not adequately protect the accused because existing Iraqi law differs from what they perceive to be international standards of due process. This criticism presumes that only one set of procedures can satisfy due process, even though standards for arrest, detention, and trial vary significantly among Western nations. The question isn't whether the Iraqi system is identical to national or international systems, but whether the tribunal's procedures can deliver fair, impartial verdicts. Viewed this way, the criticisms leveled against the tribunal are less observations of actual shortcomings than they are exercises in comparative law.
There is a real risk, however, that undue political pressure will be brought to bear on the verdicts, and this situation should be monitored closely. Critics can take comfort, however, that Iraqi governing elites recognize that the legitimacy of the new government largely depends on these trials being viewed as real and not just for show.
Like all human institutions, the tribunal is not perfect. However, democracy and the rule of law aren't developed vicariously but rather through practice. The only way to establish the rule of law in Iraq is to give Iraqis the opportunity to do it themselves, and the tribunal is an important first step.
• Eric N. Ward, a corporate attorney, was a legal officer at the International Court of Justice in The Hague during 1996 and 1997. Matthew R. A. Heiman, a lawyer at the Department of Justice, was a legal adviser to the Iraqi Ministry of Justice on behalf of the Coalition Provisional Authority in Baghdad in 2004. The views expressed in this article are their own.