Defining Justice

By Dave Johns

Command Responsibility

Saddam Hussein

In April 2003, the U.S. military announced that it had developed a set of playing cards to help troops identify the most–wanted members of President Hussein’s government. Saddam was the ace of spades; Ali Hassan al–Majid, better known as “Chemical Ali,” was the king. Today, Coalition troops have captured or killed many of the most–wanted faces in the deck. Now it is up to the tribunal to determine which leaders were ultimately responsible for what crimes and to try them accordingly.

How should the court determine which Ba’ath Party leaders to punish?

“In cases like this, you … have in play what is called ‘command responsibility,’” Steven Ratner, an international law expert at the University of Michigan, told the Christian Science Monitor. “The idea is that if you command a militarily hierarchical order where you have atrocities that you did nothing to stop, then you can be found responsible. … It is not necessary to prove, for example, that Saddam Hussein personally tortured people to try him for crimes against humanity.” Lower–level officials can use the chain of command to plead their innocence. In Leipzig in 1921, German war crimes defendants argued they had just been following orders, and the court was persuaded. In Iraq, the alleged crimes committed by the Ba’ath are vast, and the court could conceivably indict many people. Human rights expert Power, writing in The New Republic in December 2003, advocated a narrow scope: “Once atrocities on this scale have been committed … any justice mechanism introduced must be selective. … An effort to try them all would be immensely destabilizing and would dilute the quality of the justice dispensed.” The Nuremberg court tried only 22 top Nazis. Human rights advocates have called for a truth commission that would offer amnesty to lesser offenders in exchange for testimony.

Will defendants in the tribunal be offered plea bargains?

Tribunal officials have said they may use plea bargains to encourage defendants to testify against the top–ranking Ba’ath leaders. “Plea bargaining” is when lawyers offer defendants a reduction of sentence or charges in return for an admission of guilt, factual details or a promise to cooperate in other cases. The practice saves courts time and money, and proponents say guilty pleas from plea bargains often comfort victims more than guilty verdicts handed down in court. At first, international tribunals would not entertain plea deals; they considered the crimes in play too odious to be bargained over. But in recent years, as case loads have expanded, they have begun to experiment with the practice. It is thought that plea bargains would not go over well with many Iraqis, but Paul Williams, a professor of law at American University, says making bargains with top deputies is sometimes the only way to access secret information: “Often, it is the high–ranking officials who best understand the chains of command and the orders given. Prosecutors often have little evidence to work with and the testimony of a colleague who admitted guilt would be significant.”

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