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IRAQIS MUST JUDGE

THE UNITED STATES is set to aggravate the injustice inherent in its invasion of Iraq by taking control of the judicial processes to be instituted against deposed President Saddam Hussein and his officials even though they are not known to have committed crimes against Americans. Most governments and human rights groups prefer that Mr. Hussein and his supporters be tried by an international tribunal that would look into the violations of humanitarian law allegedly committed by the Ba'athist regime. However, the United States appears determined to ensure that jurisdiction will vest in a special tribunal recently constituted by the Governing Council of Iraq, the members of which it had hand-picked. American jurists helped draft the statute setting up the tribunal and defining the crimes that it will take cognisance of. The Coalition Provisional Authority, the instrumentality through which the occupying power runs Iraq, temporarily handed over legislative power to the Governing Council so that it could adopt this special law. The mechanism of the special tribunal enables the U.S. to retain real control over the judicial process while maintaining the façade that the Iraqis are conducting it. In its choice the U.S. also appears to have been influenced by the consideration that an Iraqi court will not refrain from imposing the death penalty while an international tribunal will almost certainly be averse to capital punishment. Another factor that could not have been overlooked is that the proceedings in the special court would run as a convenient counterpoint to President George W. Bush's re-election campaign. It will be more difficult to control the pace of proceedings before an international tribunal.

The special court is flawed in inception and is not likely to redeem itself once it begins to function. In the opinion of most jurists who have studied the subject, Iraq does not have judicial officials with the competence and training to process cases that involve allegations of war crimes, crimes against humanity and genocide. The statute that set up the special court allows for the appointment of international jurists with experience in these fields as advisors. That might not be sufficient to ensure that the proceedings meet international standards of fairplay. Under the prevalent norms of international law, the accused will not be able to plead that rules are being enforced selectively since other despotic rulers are left untouched. However, the accused can argue that non-Iraqis are not free of guilt for the crimes that they are charged with having committed. For instance, Mr. Hussein could point out that the U.S. had been a firm ally and supplier of arms although it was fully aware that Iraq had used non-conventional weapons against Iranians and Kurds. It is very unlikely that a court, which draws its authority and sustenance from the occupying power, will allow the accused to raise this defence even though it will have a bearing on the fairness and credibility of the trial.

Mr. Hussein and his cohorts set a terrible record of brutality during their years in power. However, the cause of justice will not be served if the deposed dictator and his men are to be tried in a kangaroo court constituted by an occupying power that is not untainted by these crimes. Justice will be done, and will seen to have been done, only when the members of the former regime are brought before the judiciary of an Iraqi state that has been duly reconstituted through exercise of free will by the people of the country. There can be recourse to an international tribunal if the Iraqis feel that justice cannot be delayed.

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