Lessons learned from the Iraqi High Tribunal: the need for an international independent investigation.

• Author: Rassi, Christopher M.

1. INTRODUCTION

   The intersection of the "Lessons from the Saddam Trial" symposium and experts meeting and the dedication of the 780 Commission Archives. (1) clearly highlighted a lesson learned from the first Saddam Hussein trial before the Iraqi High Tribunal (IHT), a lesson that will be useful for future internationalized and hybrid tribunals. The 780 Commission was established pursuant to United Nations Security Council Resolution 780 (1992) to investigate violations of international humanitarian law in the former Yugoslavia and played a valuable role in the prosecutions at the International Criminal Tribunal for the former Yugoslavia (ICTY). (2) Courts that try the alleged perpetrators of the gravest atrocities known to man may not be independently capable of meeting the necessities of post-conflict justice. Commissions of inquiry, fact-finding missions, historical and truth commissions, and other variations of international independent investigations play a crucial role in assisting the trial process and post-conflict justice itself.

   On November 5, 2006, the IHT handed down its judgment against Saddam Hussein and his co-defendants for their involvement in the events that occurred between 1982 and 1985 in Dujail, a town in Iraq's central Salahaddin governorate. Located approximately sixty kilometers north of Baghdad, Dujail is inhabited by both Sunni and Shi'a Arabs. The attack took place as retribution for a failed assassination attempt on the former president's life on July 8, 1982. (3) Saddam Hussein, three other senior former government officials, and four lower-level Ba'ath party members were all charged with crimes against humanity. (4) The retribution included: (1) detaining and torturing eight hundred men, women, and children; (2) referring 148 male detainees to trial before the Revolutionary Court, where all were sentenced to death and most were executed; and (3) confiscating and destroying land. (5) The Dujail trial began on October 10, 2005.

   The Dujail judgment was expected to be the first of many to be handed down by the IHT. Yet many questions have arisen as a result of the verdict, which sentenced Saddam Hussein to death by hanging and was affirmed by the IHT Appellate Chamber on December 26, 2006. Saddam Hussein's execution on December 30, 2006 means that he will not live to face other charges, such as those contained in the Anfal indictment. In that case, Saddam Hussein was charged with genocide for the brutally repressive military campaign carried out against the Kurdish population between February and August of 1988, resulting in an estimated 182,000 deaths, (6) and the destruction of between two thousand and four thousand Kurdish villages. (7) Prior to Saddam Hussein's execution, commentators were engaged in a discussion on whether the IHT would take the extraordinary step of issuing a stay of execution, (8) despite the fact that a strict reading of Iraqi criminal law dictated that Saddam Hussein would be executed before the Anfal trial was completed. (9) Although that discussion has ended, another important question is raised--how will the Anfal trial continue following the death of Saddam Hussein, and will further indictments be issued for future trials as anticipated?

   Given that Saddam Hussein has been executed before the Anfal trial's completion, the ability of the IHT to achieve the goals of international criminal justice has arguably been greatly reduced. The goals of international criminal justice are multifaceted and include the prevention of impunity, providing justice for victims and victims' families, and deterrence. In addition, the process of international criminal justice establishes a historical record, as the Nuremberg and Tokyo trials helped to create a historical record of the Second World War, the International Criminal Tribunal for Rwanda (ICTR) is creating a record of events in Rwanda in 1994, and the ICTY for events in Yugoslavia in the 1990s.

   The IHT, by contrast, is now in a difficult position, without Saddam Hussein as a defendant and without any certainty regarding whether further crimes will be charged. In addition, even if further trials are completed, the fragmented approach taken by the IHT and the decision to start with the Dujail trial might have squandered the opportunity to leave a more complete historical record and fulfill one of the most important goals of international criminal justice. (10) It is clear that the incomplete record created by a tribunal will not be satisfactory, "given the widespread and systematic nature of the political violence committed by Saddam Hussein and his repressive Ba'ath regime for some thirty-five years," (11) which will be discussed in Part I below. Despite the litany of alleged crimes, the charges in the Dujail trial remain the only ones to be answered by Saddam Hussein. Accordingly, to complement the work of the IHT, an objective historical record of past political violence must be established. (12) Although such an independent investigation would have been far more useful if it had occurred prior to the commencement of trials, as did the 780 Commission, the fact that the IHT has already rendered its first judgment does not negate the clear need for a thorough, independent investigation. This mechanism could be an Iraqi-led process that would ideally enjoy national and international legitimacy and that would also have broad Iraqi popular support. One solution is an international independent investigation, which would help remedy the shortcomings of a tribunal that is focused only on a few members of a defeated regime. (13) Expanding the scope of an investigation to cover all crimes regardless of whether they will be prosecuted by the IHT can ensure that the victims in Iraq feel that the proceedings are meaningful to them.

   Despite the rendering of the Dujail judgment and the execution of the most notorious of the accused before the IHT, this article argues that that an independent investigation should be established in Iraq. Part I provides an overview of some of the crimes committed by the Ba'ath regime between 1968 and 2003. Part II examines the concept of an international independent investigation and explains how, for example, the 780 Commission in the former Yugoslavia established a larger picture of the atrocities committed there. Part III offers a theoretical perspective on the ability of international independent investigations--in the form of commissions of inquiry, fact-finding missions, and even truth commissions--to serve as a complement and a precursor to judicial actions. Part IV examines modern uses of international independent investigations, their successes and failures, and their role in furthering post-conflict justice. Finally, Part V examines the merits of an international independent investigation for Iraq to complement the IHT.

2. CRIMES COMMITTED BY THE SADDAM HUSSEIN REGIME AND THE COMPETENCE OF THE IRAQI HIGH TRIBUNAL

   As the only official institution, either domestic or international, charged with prosecuting and documenting the crimes of the Ba'ath regime, the IHT faces an immense challenge. The IHT was created to conduct multiple trials to prosecute alleged counts of genocide and crimes against humanity that occurred during Saddam Hussein's regime. Other than Dujail and Anfal, members of the Ba'ath regime and Saddam Hussein should arguably have been tried for many other crimes. The figures on casualties in Iraq during the Saddam Hussein regime are just estimates, and as one noted scholar in the field has signaled, no international or national investigation has ever documented the summary executions and disappearances alleged to have been carried out by this regime. (14)

   First, among those crimes are the violent campaigns against sections of the Iraqi population, such as the 1983 campaign against members of the Kurdish Barzani tribe for helping Iran launch an offensive, killing an estimated eight thousand Kurds, (15) the chemical gas attack on the Halabja in March 1988, killing thousands of civilians; (16) and the forceful removal of between one hundred thousand and one hundred and ninety thousand Shi'a Arabs from the Marshland region on the Iranian border (17) and of Kurds in the Kirkak region. (18) At the time of the invasion of Iraq by the coalition forces in March 2003, the Ba'ath regime was estimated to have killed more than five hundred thousand Iraqi citizens between 1968 and 2003. (19)

   Second, the Ba'ath regime's two aggressive wars, the Iraq-Iran War (1980-1988) and the Gulf War (1990-1991), led to the death of more than one million Iraqis according to estimates. (20) Both the Iran-Iraq war and Iraq's occupation of Kuwait were characterized by war crimes and crimes against humanity, and accordingly these two states had an interest in Saddam Hussein's prosecution by the IHT. (21) No international consensus yet exists regarding the characterization of aggression as an international crime. (22) Although aggression is not included as an international crime under the IHT statute, aggressive conduct against Arab countries is characterized as a domestic crime. (23) As such, Saddam Hussein's regime should be called to account for these actions.

   Third, UN sanctions imposed against the Ba'ath Regime (24) caused the deaths of an estimated 576,000 children and older persons between the end of the Gulf War and 1995. (25) While the international community is not blameless, Saddam Hussein's regime made decisions on the allocation of resources that produced these results, arguably leaving it responsible for many of the resulting deaths. (26)

   Lastly, it has also been alleged that the Ba'ath regime squandered Iraq's assets on the development of weapons of mass destruction, and Saddam Hussein and his family embezzled public funds. (27) While at this stage, such allegedly fraudulent conduct has not yet been properly documented and accounted for, these allegations have been exposed by the...