Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (42 page)

Eric Stover

University of California, Berkeley

Hanny Megally

International Center for Transitional Justice

Hania Mufti

Middle East for Human Rights Watch

Shortly after the US invasion and occupation of Iraq, L. Paul Bremer III, in his capacity as the chief administrator of the Coalition Provisional Authority (CPA), introduced several transitional justice mechanisms that set the course for how Iraqis would confront the legacy of past crimes for years to come. In developing these mechanisms, Bremer consulted with a select group of Iraqi exiles that had returned to Iraq or were still living abroad. However, he failed to solicit the opinions and attitudes of the Iraqi people as a whole. He also failed to consult many of the governmental and non‐governmental entities that could pass on to the CPA and future Iraqi governments the “lessons learned” and “best practices” gleaned from transitional justice processes in other countries. As a result, many of the mechanisms introduced by
Bremer either backfired or were hopelessly flawed.

In early March 2003, weeks before the US invasion of Iraq,
CIA officials and senior military commanders gathered at Camp Doha, Kuwait to plan for the eventual siege of Baghdad by US and coalition forces. Intelligence officials were convinced that Iraqis would rush to the streets to welcome American soldiers as they rode triumphant into the Iraqi capital. One CIA operative suggested that US special forces and Iraqi sympathizers should sneak hundreds of small American flags into the country for Iraqis to wave at their liberators. The agency would capture the spectacle on film and beam it throughout the Middle East. It would be the ultimate photo‐op designed to win the “hearts and minds” of doubters back in the United States and throughout the Arab world.

But the idea was quickly quashed by the US commander of allied ground forces, Lt. General David McKiernan, who told those assembled at the meeting that US troops had been instructed not to brandish the flag so as to avoid being perceived as an occupying army. Undeterred,
the CIA officials continued to press the military officers for some form of pageantry to celebrate what they saw as an imminent military victory for the United States and its coalition allies. “At first, it was going to be US flags,” a military officer who attended the meeting recalled, “and then it was going to be Iraqi flags. The flags are probably still sitting in a bag somewhere.”
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The debate in the war room at Camp Doha illustrates the dilemma that the United States faced as coalition forces swept into Baghdad. Having destroyed Saddam's military and security apparatus, the thinking went, American soldiers would be viewed as liberators and not as occupiers. By capitalizing on the good will of the Iraqi people the Americans could quickly scale back their military presence and bring in civilian experts to help a new Iraqi government, headed by expatriates like Ahmed Chalabi, create a new democratic state. “Of course,” writes
Larry Diamond, a former senior advisor to the Coalition Provisional Authority in Iraq, “these naïve assumptions quickly collapsed, along with overall security, in the immediate aftermath of the war. US troops stood by helplessly, outnumbered and unprepared, as much of Iraq's remaining physical, economic, and institutional infrastructure was systematically looted and sabotaged.”
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Then, as spring turned into summer, a nascent insurgency, comprised of foreign fighters and Saddam loyalists, began to emerge from the rubble, creating a security quagmire that would last for the foreseeable future.

Amid this growing chaos,
L. Paul Bremer III, a career diplomat in the US Department of State and an expert on terrorism and homeland security, arrived in Iraq to serve as the chief administrator of the CPA. Bremer's job was to unravel the “Gordian Knot” of a postwar Iraq and to steer it toward a legitimate and viable future. In addition to rebuilding Iraq's overall economy and society, Bremer had to deal with a palpable demand for justice after thirty‐five years of despotic rule and massive human rights abuses.
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Bremer issued several directives
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in the first month of his tenure in Iraq that would set the course for how Iraqis would confront the legacy of past crimes for years to come. Most notable (and controversial) was the introduction of a de‐Ba'athification program on May 16, 2003 to remove members of the Ba'ath Party from their positions of authority and to ban them from future employment in the public sector. Another decree, issued on December 10, 2003, created the Iraqi Special Tribunal for Crimes Against Humanity (
“Special Tribunal”)
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to try Iraqi nationals or residents of Iraq accused of genocide,
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crimes against humanity, and war crimes. He also mandated a series of administrative and institutional directives, including the establishment of a property claims
commission, a central criminal court, and a new Iraqi army and civil defense corps.

In this article, we examine how
Bremer's directives affected the process of transitional justice in Iraq and how ordinary Iraqis perceived these processes at the time. Our methods of research included interviews with dozens of Iraqi, US, and British officials, forensic scientists, and representatives of the United Nations and non‐governmental organizations. We also conducted on‐site visits to mass graves throughout Iraq and to governmental and non‐governmental institutions that possess Iraqi state documents obtained during and after the war.
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Finally, to understand how Iraqis would like to deal with their legacy of human rights violations and political violence, we drew on data obtained from extensive interviews and focus group discussions conducted in July and August 2003 with representatives from a broad cross‐section of the Iraqi population by a team of researchers from the
International Center for Transitional Justice (ICTJ) and the Human Rights Center of the University of California, Berkeley.
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Iraq's confrontation with its violent past presents one of the most complex cases of transitional justice since the end of the World War II. First, there is the sheer magnitude and severity of the crimes Saddam
Hussein committed against the Iraqi people. The prior regime left thousands of government opponents executed, more than 300,000 missing and likely dead, thousands of towns and villages across the country destroyed, all dissent crushed, and hundreds of thousands internally displaced or living in exile abroad. This legacy of massive crimes has crippled Iraq and left it vulnerable to internal violence and civil war. Unless a middle ground can be found that brings those responsible for past crimes to justice while not singling out one group at the expense of others, Iraq faces the danger of further bloodshed and turning into a terminally weak state.

Second, deep‐seated tensions within Iraqi society over identity, the US occupation, and future political power would determine how effective any transitional justice process will be in Iraq. Having lived under an autocratic state that imposed a single Iraqi identity for decades, Iraqis emerged from the war torn between defending that civic identity and their own ethnic and religious identities. Nowhere was this more evident than in the Kurdish areas to the north and the Shia areas to the south, where both groups had suffered terrible human rights abuses during Ba'athist rule. After the war,
many Shia
and Kurds were wary of how their groups would be affected by a new central government. Tensions also emerged between those Iraqis who supported the overthrow of
Saddam Hussein and the subsequent US occupation and those who
opposed it. Meanwhile, many Sunnis, and especially those who openly supported Saddam, feared that a new Iraqi government, and especially one that contained an overwhelming majority of
Shia or
Kurds, would target Sunnis as a scapegoat for the
crimes of the past.

Third, in a post‐conflict situation like Iraq in which the state has collapsed, security trumps everything: it is the central pedestal that supports all else. Without some level of security, transitional justice processes are doomed to fail. Court officials cannot guarantee the safety of potential witnesses, let alone the security of their own investigators. Nor can they secure mass graves and other crime scenes. Without security, courthouses and other places where people might gather to provide testimony to truth commissions remain vulnerable to armed attack.

Fourth, by the time of
Bremer's arrival in Iraq, insecurity in Baghdad had turned the US occupation into a physical and
psychological bunker. Separated from Iraqis by the formidable security around the three‐square‐mile “Green Zone” (where the CPA was based) and around the CPA's regional and provincial headquarters, the American civilians had little, if any, contact with the Iraqi people.
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Indeed, the CPA (which ruled Iraq from May 2003 until June 2004) made no significant effort to consult Iraqis about the transitional justice processes that were intended to help them confront a violent past. When consultations did take place they tended to be between CPA officials and Iraqi exiles who had returned to Iraq or with members of the CPA‐appointed
Iraqi Governing Council (IGC). As a result, Iraq's transitional justice process could potentially be viewed as an American process operating under an Iraqi facade.

Finally, simmering tensions between the United States and the
United Nations over the legality and necessity of the war had severely limited the participation of foreign experts in the process of transitional justice in Iraq. By “going it alone” the US had alienated many of the very governmental and non‐governmental entities that were best poised to pass on to the Iraqis the “lessons learned” and “best practices” gleaned from similar transitional processes in other countries. Iraqis found they had limited access to international expertise ostensibly because only experts willing to work directly with the CPA, and receiving funding from the US government, were available to provide their knowledge and skills. Meanwhile, other experts, and particularly those working with non‐governmental organizations, were left watching or merely critiquing from the
sidelines.

Societies emerging from periods of war or political repression can deal with the past in a number of ways. Yet for such mechanisms to be effective in postwar societies they must meet three tests.

First, it is imperative that the wider population view the implementing authorities as both legitimate and impartial. Second, such measures should have been selected through a genuine process of consultation with those most affected by the violence. To the extent possible, all sectors of a war‐ravaged society – the individual, community, society, and state – should become
engaged participants in
, and not merely
auxiliaries to
, the processes of transitional justice and social reconstruction – though, undoubtedly, at different periods of time and in different ways. Victims must receive formal acknowledgment and recognition of the grave injustices and loss that they suffered. Families of the disappeared must be able to recover, bury, and memorialize their dead. Bystanders – those who did not actively participate in violence, but who also did not actively intervene to stop abuses – should come to recognize that their passivity contributed to the maintenance of a repressive state. Perpetrators must be held accountable for their crimes so as to validate the pain and suffering of victims and to communicate publicly that the past horrors deserve societal condemnation. At the same time, accountability measures should be implemented in a manner that avoids stigmatizing the communities from which the perpetrators come.

Finally, to work effectively, transitional justice measures must be accompanied by programs that promote political reconstruction of a legitimate and capable state, economic and social reconstruction, freedom of movement, security and the rule of law, access to accurate and unbiased information, educational reform, and cross‐ethnic engagement.
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Critical to the development and implementation of these programs is the recognition that changes in one part of the system can reverberate through the system as a whole. Consequently, those who initiate transitional justice mechanisms must be mindful of how each new intervention or policy affects the aggregate. Such measures must work synergistically, with no single component aspiring to address all the needs of a postwar society. Each decision, each policy, has consequences, both expected and untoward. The challenge is to monitor and respond to these particular elements while at the same time seeing the whole picture.

In the end, the US‐led process of developing and implementing mechanisms of transitional justice in Iraq failed on all three accounts. In this chapter, we explain why.

At the war's end, it was clear that something had to be done quickly to jump‐start a process of transitional justice in Iraq, if only to protect key documentary and physical evidence for future trials. By mid‐May 2003,
Iraqis, desperate to find their missing and executed family members, had begun using their own means to exhume mass graves throughout the country. Lacking adequate forensic expertise and international assistance, they began opening graves in a manner that would prevent forensic identification of most—if not, all—of the remains.
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For example, at two sites located near the Mahawil military base just north of the southern Iraqi city of Hilla, villagers used a backhoe to dig up more than 2,000 sets of remains, gouging and commingling countless skeletons in the process, while some families used their hands to dig for bones and shards of clothing and carted them away in wheelbarrows and buckets.
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The grim spectacle at the Hilla burial pits drew protests from international human rights groups which criticized the United States and other coalition authorities for not implementing a plan to help Iraqis recover the remains of their relatives in a dignified manner and to preserve evidence that might convict those responsible for these crimes. In late May 2003,
the CPA's predecessor, the US Office of Reconstruction and
Humanitarian Assistance, announced that it would take measures to secure grave sites, launch a media campaign to explain to the public the necessity of preserving grave sites, and request governments to send forensic teams to Iraq to exhume graves prioritized for forensic investigation.
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