Debating sentences. The Statute of the IST is rather ambiguous about sentencing guidelines for defendants who are convicted, thus reflecting a flaw that has plagued both the ICTY and the ICTR. Salem Chalabi has held out the possibility of the death penalty, although it was placed in abeyance during the Coalition Provisional Authority's stewardship. However, actually imposing the death penalty would be viewed negatively by many foreign governments, international organizations, and NGOs that oppose capital punishment and would, undoubtedly, poison their relations with the new Iraqi government. On the other hand, removing the death penalty from the IST's jurisdiction would be manifestly unjust if it resulted in major offenders being given prison sentences while relatively low-level defendants who will be tried by other Iraqi courts faced death. Furthermore, were the likes of Saddam Hussein actually kept in long term custody, he would no doubt prove a serious security risk for whatever power had the onerous task of actually imprisoning him. There is no easy resolution to this dilemma, but the question needs to be addressed rather than deferred.

Inviting international cooperation. Much has been said in recent months about the need to involve the international community in the task of rebuilding Iraq. The IST is an excellent occasion to put that principle into practice, especially if the tricky question of the death penalty can be dealt with. Not only will international cooperation bring much needed expertise to the process - it goes without saying that the resources of the post-Saddam Iraqi judiciary are rather meager - but will lend a certain legitimacy to the process. Governments can contribute not only jurists but hard currency to pay for what will undoubtedly be an expensive undertaking. International human rights NGOs can provide valuable support with the forensic and documentary phases of the judicial inquiry as well as a certain protection for the legal rights of defendants. In Sierra Leone, for example, the administrative aspects of the Special Court are the responsibility of a management committee on which the representatives of the principal donor nations (including the U.S., Britain, Canada, the Netherlands, and Nigeria) sit alongside those of the Sierra Leonean government. The registrar of the SCSL also holds regularly schedule "stakeholder meetings" involving senior court officials and representatives of international and local NGOs in order to request help with particular areas as well as to inform them of developments.

With its assumption of sovereignty, the interim Iraqi government also assumes many burdens, not the least of which is the relatively short eighteen month mandate that it has been given to oversee the election of permanent authorities and write a new constitution. However, in the long term, few tasks will be as significant for the Iraqi leaders - and for the interests of their U.S.-led protectors - as bringing Saddam Hussein and his closest collaborators to justice. While it is but one step on the long road of establishing the rule of law in the country, the tribunal can help the process along by legitimizing the overthrow of the Ba‘ath regime by holding its leading exponents to account and creating a credible history that acknowledges the past. While there will no doubt be missteps along the way, with conscious effort and attention to the mistakes of the recent past, these can be minimized. If so, there might be hope that justice will indeed prepare the ground for peace in the birthplace of Hammurabi, who by his law, humanity's oldest extent written legal code, sought to "give the protection of right to the land, do right, and bring about the well-being of the oppressed."  

 

Dr. J. Peter Pham, international lawyer and former diplomat, is the author, most recently, of Liberia: Portrait of a Failed State (Reed Press). He has just completed a book on the Sierra Leonean civil war and the post-conflict role of the Special Court.