JURIST Guest Columnist David Crane of Syracuse University College of Law, former Chief Prosecutor of the Special Court for Sierra Leone, says that the Iraqi Special Tribunal currently trying Saddam Hussein for crimes against humanity may be losing its one opportunity to show Iraqis that the rule of law is more powerful than the rule of the gun...
First, the cornerstone of any emerging democracy, such as Iraq, is the rule of law. If there is no respect for the law, then much of what has been accomplished may be for naught. In the Middle East, where strength and power are an admired trait, the rule of law has to be seen as more powerful than the rule of the gun. A shaken confidence in the due process of law and the citizens of Iraq will look for other ways to build their society and new government. The results may not be what anyone wants. The current actions in the courtroom by the presiding judge and the indictees may bring the power of the law into question by the Iraqi people.
Second, the process has to appear to be fair and efficient. Part and parcel with establishing the rule of law and respect for the law comes the perception that the law itself is fair and efficient. We in the West tend to take fairness and general efficiency in our legal process as a given. In this part of the world it is not, nor is that process understood. The lingering concerns that the United States continues to manipulate the process, whether true of not, have made the IST snake-bitten in the eyes of the international community and the Iraqi people. Coupled with the fact that the current presiding judge lived in a town that was destroyed by Saddam, one of the defendants, causes one to doubt the fairness of the process.
Third, the Iraqi people are going to have to live with the result, regardless of how the process ends. The rule of law, its fairness and efficiency, make it easier for the Iraqi people to live with the results, despite the outcome. Thus, all three of these concepts have to merge in a relatively seamless way to allow for the transition process from anarchy to democracy to move forward under the rule of law.
Despite its reputation as a bastard among the various tribunals, the IST is still the only forum by which one of the 20th Century's mega-murderers will be held accountable for his misdeeds. The judges and prosecutor have to get it right from the very beginning or we lose a rare chance to face down the beast of impunity in the Middle East and show the Iraqi people that the law is fair, that no one is above the law, and that the rule of law is more powerful than the rule of the gun.
On the 60th anniversary of the end of mankind's first attempt to face down impunity at Nuremberg, in 1946, the trial of Saddaam Hussein and his henchmen must reflect those key principles established there of fairness, openness, and respect of international norms or we will see a step backwards. Sadly what is currently happening in Baghdad regarding the appearance of fairness and efficiency is lacking. It remains to be seen whether they have it right. I have my doubts.
David M. Crane is a distinguished visiting professor of law at Syracuse University College of Law and formerly the Chief Prosecutor of the Special Court for Sierra Leone, an international war crimes tribunal.