JURIST Contributing Editor David Crane of Syracuse University College of Law, former Chief Prosecutor for the UN Special Court for Sierra Leone, says that the Dujail crimes against humanity trial of Saddam Hussein before the Iraqi High Tribunal was hardly perfect, but it was nonetheless a step forward for the rule of law in the face of longtime impunity for atrocities...
These tribunals range from the domestic court in Iraq that found Saddam Hussein guilty of crimes against humanity, to the ad hoc tribunals for Rwanda and Yugoslavia, to the various other hybrids and internationalized domestic courts, as well as the International Criminal Court. This modern system has been in existence for only thirteen years. It is just the beginning, but it is a beginning and we should take heart in the fact that in most instances we are doing something to face down the beast of impunity as it nibbles around the edges of civilization.
We should take this small moment of justice and resolve to move the concept of international justice forward in a consistent way that returns the respect of the law missing in areas where atrocity has happened. If we can show victims 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, we will begin to develop a seedbed from which freedom and justice will grow. The system of tribunals and courts will greatly assist in this effort. The global community must remain focused.
So what are we to make of the judgment that took place in Iraq this past Sunday? In general we see that one of the most powerful leaders in the Middle East, and a mega-murderer, was humbled before the law. We see that justice provides the victims some type of reconciliation and a factual accounting for what took place to their families, friends, villages, and towns. We see that the rule of law can be used to seek justice in a part of the world where the concept of justice has been strained indeed. In short, a leader who controlled and influenced the lives of millions throughout the Middle East, whose policies caused the murder, rape, and torture of millions, and destabilized an entire region of the world was held accountable for those policies and criminal acts.
It is important to note that the domestic court that tried Hussein for the Dujail incident was born of controversy which will forever taint the result. One must ask the question, but for the United States would the trial itself have taken place? Depending how you view the question this could be a positive or a negative. Accountability had to take place in Iraq. Hussein had to be tried for what he had done along with his regime. The effort by the United States to set up the Iraqi High Tribunal, along with its Iraqi counterparts, and its hard work behind the scenes to ensure some stability in the court room, must be acknowledged. Yet it is that effort that has tainted the Iraqi High Tribunal. How so?
First, the United States has lately adopted a "go it alone policy" when it comes to international justice. Second, it's taken a "you are either with us or against us" approach to the ideological struggle in what should be mankind's confronting of international terror. Third, the United States has used methods of combating terror such as torture and unaccounted-for detention, and has invoked a type of amnesty for war crimes that US citizens might have committed in this fight. Fourth, it has used a shoddy rationale to invade a sovereign state in what arguably was an aggressive act of war. Because the United States is so closely aligned with the Iraqi High Tribunal, its loss of the moral high ground has weakened the Tribunal's efforts to seek justice in Iraq.
In some ways the United States has used the very tactics for which we hold others accountable. This overshadows the result last Sunday and clouds the slow, awkward, but steady movement forward by the global community to establish a system of international justice for the 21st century and beyond. History will show that this effort in Iraq was a tragic sideshow by the world's only superpower, a power that had lost its moral compass. Though some of the results sought in Iraq - the downfall of Hussein and his subsequent trial - are noteworthy, the debacle of the Iraq occupation will be marked as a low point in the history of the United States. Aggressive war under the guise of the rule of law is a dangerous path that distracts from attempts to hold accountable those who chose to commit atrocity. In many ways, the United States has moved the concept of international justice backwards to a time where the desire for some type of peace and political stability absolved those who committed crimes against humanity. This "get along to get along" approach so prevalent in the 20th century helped set the stage for atrocities that resulted in the deaths and ruin of millions. This cannot stand and what the United States is attempting to do with the concept of international justice only weakens this noble cause.
There has been an accounting in Iraq for what Saddam Hussein and his regime did to his own people, as well as others. We should take some small sense of pride that mankind now expects that those who commit atrocity will generally be held accountable, though politics will always play the determining role in whether the global community decides to act. It may be imperfect justice, but it is justice. Mankind needs to keep moving forward. Wherever the beast of impunity rears its ugly head, it must be faced down. We're developing the legal tools to do so. Holding accountable Hussein, Milosevic, Taylor, and others shows that it is a new dawn, still a bit cloudy but the brightness of a new day under the rule of law is predicted.
David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005). He is a former paratrooper and judge advocate who helped develop and teach the US Department of Defense Law of War Program for almost 20 years.