Defining Justice

By Dave Johns

Victors’ Justice?

Saddamn Hussein's famous gun-in-hand picture

F rom the beginning of the process leading up to Saddam’s trial, there has been concern among some international lawyers that the United States has played too prominent a role and that the court’s final verdict may be seen as “victors’ justice.” And many who opposed the invasion of Iraq have claimed that the tribunal represents a way for the Coalition to justify the war in the court of public opinion now that weapons of mass destruction have not been found. In any case, the victors’ challenge today is to help the court establish and follow clear principles of law and human rights so that its process is viewed as measured and fair.

What does history say about victors and justice?

After winning a war, the victors can usually do what they want with their defeated foes. In human history, trials are the exception and not the rule. In 1943, Soviet leader Joseph Stalin toasted to someday executing 50,000 to 100,000 Nazis. After the war, U.S. Treasury Secretary Henry Morgenthau told Roosevelt he thought the Allies should summarily shoot as many as 2,500 top Nazis. Churchill favored execution for Nazi leaders too. When he told Stalin this, the premier reportedly bragged, “In the Soviet Union, we never execute anyone without a trial.” Churchill agreed: “Of course, of course. We should give them a trial first.” In the end, the Allies devised something better than a Soviet–style “show trial,” thanks in large part to Henry Stimson, the U.S. Secretary of War, who felt that victors should offer their enemies a procedure that embodied “at least the rudimentary aspects of the Bill of Rights.” The Nuremberg Trials that followed became an essential model for how to deal fairly with war criminals. “Victory in war can provide the opportunity to do justice,” wrote Gary J. Bass, a professor of international affairs at Princeton, in Social Research. “The punishment of defeated enemies is a matter of the highest importance, quite literally of war or peace. If it is done well … it can help build a stable world order.”

What is the basis for some critics challenging the tribunal’s legitimacy?

In December 2003, the Coalition Provisional Authority (CPA) authorized the Iraqi Governing Council to create a tribunal to try Iraqis for war crimes, crimes against humanity, genocide and other crimes –– offenses that were not previously in Iraqi law books. The move troubled some legal observers because the fourth Geneva Convention limits the authority of occupying powers to make law in the country they occupy. Since then, however, the freely elected Iraqi legislature has formally adopted the tribunal laws, an action which appears to lend the court legitimacy. Others disagree. The United Nations, for one, has said the court will never satisfy its standards for justice. Some scholars have wondered if Iraqi judges, so long isolated from modern courts, could maintain control of such a complex case. Many of Iraq’s most senior judges were barred from participating because they were deemed too closely associated with Saddam’s regime. But despite the challenges, polls show that a majority of Iraqis believe in trying Saddam in Iraq and before Iraqi judges. Kanan Makiya, founder of the Iraq Memory Foundation, an organization that is documenting Ba’ath crimes, praised the Iraqi process on CNN: “I think this is magnificent. I think the fact that this is happening is a watershed in Arab politics.” Still, the trial faces great challenges. In mid–January, the court’s chief judge, Rizgar Amin, resigned –– reportedly over political pressure to quiet Saddam and speed up the trial –– leaving an essential role to fill.

How extensive is U.S. involvement in the tribunal?

The court has faced allegations of U.S. political influence since it began; its first administrator was Salem Chalabi, an Iraqi exile who took part in the U.S. State Department’s Future of Iraq program. He is also the nephew of Ahmed Chalabi, the controversial Iraqi exile who reportedly funneled flawed intelligence about weapons of mass destruction to the Pentagon in the run–up to the war. The United States contributes $128 million a year to the court, which far outstrips what Iraq pays, and the tribunal cannot hear complaints against non–Iraqi nationals, such as U.S. troops. Coalition groups control many of the documents that will be used as evidence, raising the worry that papers embarrassing or incriminating to the United States might be withheld. Tribunal rules allow “sovereign nations” to close the court to the public if they feel that evidence being heard could harm their “national security” –– a rule that might be used by the United States to squelch press coverage of any courtroom discussions of its dealings with Saddam during the 1980s. The Reagan administration actively supported Iraq during the Iran–Iraq war and supplied Saddam’s regime with satellite photos of Iranian troop movements.

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