Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (46 page)

[1]
See Michael R. Gordon, “Faulty Intelligence Misled Troops at War's Start”,
New York Times
, October 20, 2004, at A1.

[2]
Larry Diamond,
What Went Wrong in Iraq
, (Sept./Oct. 2004)
Foreign Affairs
, 83 at p. 36.

[3]
For a discussion of the obligations of an “occupying power,” see Geoffrey Best,
War and Law Since 1945
(Oxford: Clarendon Press, 1994), at p. 118; see also Caryle Murphy, “Occupation of Territory”, in Roy Gutman and David Rieff, eds., 1999,
Crimes of War: What the Public Should Know
, pp. 263–64.

[4]
See
www.cpa.gov/government/governing _council.html.
Several orders deal with transitional justice measures, including CPA Order 1, “De‐Ba'thification of Iraqi Society”, May 16, 2003; CPA Order 2, “Dissolution of Entities”, May 23, 2003; CPA Order 7, “Penal Code”, June 10, 2003; CPA Order 13 (Revised), “The Central Criminal Court of Iraq”, June 18, 2003; CPA Order 15, “Establishment of the Judicial Review Committee”, June 23, 2003; CPA Order 35, “Re‐establishment of the Council of Judges”, September 21, 2003.

[5]
The jurisdiction of the Iraqi Special Tribunal covers the crimes mentioned above, as well as violations of stipulated Iraqi laws committed from July 17,
1968 to May 1, 2003. ( CPA Order 48: “Delegation of Authority Regarding an Iraqi Special Tribunal”,
http://www.iraqcoalition.org/regulations/ 20031210_CPAORD_48_IST_and_Appendix_A.pdf
). Article 14 of the statute provides: “The Tribunal shall have the power to prosecute persons who have committed the following crimes under Iraqi law: a) For those outside the Judiciary, the attempt to manipulate the judiciary or involvement in the functions of the judiciary, in violation,
inter alia
, of the Iraqi interim constitution of 1970, as amended; b) The wastage of national resources and the squandering of public assets and funds, pursuant to,
inter alia
, Article 2(g) of Law Number 7 of 1958, as amended; and c) The abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended.

[6]
Early in 1959 the government of Iraq, a military dictatorship, signed the Convention on the Prevention and Punishment of the Crime of Genocide.

[7]
See Human Rights Watch,
Iraq: State of the Evidence
, Vol. 16, No. 7, November 2004, available at
www.hrw.org/ reports/2004/iraq1104/.

[8]
Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction
, A Report of the International Center for Transitional Justice and the Human Rights Center, University of California, Berkeley, May 2004. A total of 395 people were surveyed through 38 key informant interviews and 49 focus group discussions, between July 18 and August 13, 2003.

[9]
Diamond,
What Went Wrong in Iraq
, at p. 39.

[10]
Ibid
. at pp. 327–39.

[11]
Eric Stover, William D. Haglund and Margaret Samuels,
Exhumation of Mass Graves in Iraq: Considerations for Forensic Investigations, Humanitarian Needs, and the Demands of Justice
, (August 6, 2003)
Journal of the American Medical Association
, 290, pp. 663–66.

[12]
Human Rights Watch,
The Mass Graves of Mahawil: The Truth Uncovered
(2003).

[13]
US Office of Reconstruction and Humanitarian Assistance, Mass Graves Action Plan (2003).

[14]
See Human Rights Watch, Iraq, “Protect Government Archives from Looting”, Press Release), April 10, 2003, letters dated April 9, 2003, addressed to US Secretary of State Colin L. Powell and Secretary of Defense Donald H. Rumsfeld.

[15]
See Human Rights Watch, Memorandum to the Iraqi Governing Council on “The Statute of the Iraqi Special Tribunal” (Dec. 2003), 1–15.

[16]
Some Iraqi judges argued that while Iraq's Penal Code does not include genocide in the list of crimes, any defendants facing this charge could be tried under Article 406 of the Code, which deals with murder including mass murder, Law 111 of 1969, Iraq Penal Code and amendments, 6th Edition, 2000 (copy with authors).

[17]
This position had changed somewhat by March 2004 as terrorist and insurgent violence increased and the Bush Administration realized that certain activities, such as elections, would be best managed by the United Nations.

[18]
Coalition Provisional Authority Order Number 48: Delegation of authority regarding an Iraqi Special Tribunal with Appendix A, signed into force by
Paul Bremer, December 10, 2003.
http:// www.iraqcoalition.org/regulations/ 20031210_CPAORD_48_ IST_and_Appendix_A.pdf

[19]
Human Rights Watch, Memorandum to the Iraqi Governing Council, see note 15 above, at p. 1.

[20]
Human Rights Watch, Iraq, “Flawed Tribunal Not Entitled to U. N. Legitimacy”, Press Release, January 6, 2004.

[21]
The death penalty was suspended in Iraq first in April 2003 by General Tommy Franks, the former US Central Command chief, and then by the CPA on June 10, 2003 through Order 7 (Section 3(1). Under Article 24(a) of the statute of the Special Tribunal, penalties for offenses “shall be those prescribed by Iraqi law.” The death penalty is permissible under Iraqi law for certain offenses in some circumstances. Under Article 24(a), penalties that “do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents.” See CPA Order 48.

[22]
Some CPA officials told us privately that the death penalty was slowing down the process of gathering and analyzing forensic evidence. Many medicolegal experts, it seemed, wished to have no part in a judicial process that included the death penalty. Yet other CPA officials said it was a non‐issue.

[23]
Human Rights Watch, Memorandum to the Iraqi Governing Council, see note 15 above.

[24]
The Iraq Special Tribunal Statute provides for the appointment of one or more trial chambers, each comprising five trial judges, and nine judges to sit on the appeals chamber.

[25]
See John F. Burns, “For Hussein, a Spartan Life at His Former Palace”,
New York Times
, September 19, 2004, at A1.

[26]
Human Rights Watch, Iraq, “State of the Evidence”.

[27]
John F. Burns, “US Official Says Early Trials of Hussein and Others Are Unlikely, Despite Allawi's Demand”,
New York Times
, September 25, 2004, at A6.

[28]
Marlise Simons, “Iraqis Not Ready for Trials: U.N. to Withhold Training”,
New York Times
, October 22, 2004, at A11.

[29]
See David Cohen, “Transitional Justice in Divided Germany After 1945”, in Jon Elster, ed.,
Retribution and Reparation
(2005).

[30]
On May 16, 2003 Ambassador Bremer decreed the de‐Ba'athification process in CPA Order No. 1.

[31]
L. Paul Bremer. CPA Press Briefing, 25 November 2003 (on file with authors).

[32]
CPA Order 5 of May 25, 2003. Order No. 1 issued by the Commission, September 14, 2004 declared all Ba'ath party members from the rank of
Udw Firqah
(group member) and above as dismissed from their positions and liable to punishment for disobeying this order.

[33]
CPA Order 5, Establishment of the Iraqi De‐Ba'athification Council, May 25, 2003.

[34]
Ibid
.

[35]
CPA Memorandum No. 1, Implementation of De‐Ba'athification Order 1, May 16, 2003, issued June 3, 2003.

[36]
Ibid
., § 2.1.

[37]
Ibid
., § 1.2.

[38]
The official procedures for carrying out de‐Ba'athification in the public sector and within government offices and ministries is available at
www.debaath.org/page/ajr_h/ajw.htm.

[39]
Decisions Numbers 1 and 2 of September 14, 2003, issued by the HNDC, and signed by Ahmed Chalabi in his capacity as head of the HNDC are available at
http://www.debaath.org/page/ka_h/ index.htm.
The decisions banned from nominations anyone who was a member of Special Security, National Security, the special Presidential Protection Unit, military intelligence, Feda'yeen Saddam, and General Security services.

[40]
Available at
www.debaath.org/page/ka_h/52_k.htm.
The committees would review individual cases and where they reached a two‐thirds majority agree to bring back the dismissed official. One of the criteria to be taken into account by the central committees was the “dire need” for the services of the dismissed person.

[41]
CPA Memorandum No. 7, November 4, 2003.

[42]
Ibid
.

[43]
Christopher Dickey, “The Master Operator”,
Newsweek
, March 2004, see
http://msnbc.msn.com/id/4409622/
.

[44]
John F. Burns & Ian Fisher, “US Seeking to Stabilize Iraq Casts Ba'athists in Lead Role”,
New York Times
, May 3, 2004, at A1.

[45]
L. Paul Bremer III, Administrator, Coalition Provisional Authority, Turning the Page, Baghdad, April 23, 2004, available at
www.iraqcoalition.org/transcripts/ 20040423_page_turn.html.

[46]
Jonathan Steele, “Anti‐Baathist Ruling may Force Educated Iraqis Abroad”,
The Guardian
, August 30, 2003, at 16.

[47]
E‐mailed memorandum to Hanny Megally dated November 13, 2004, from Ali Feisal al Hamad. He adds that those re‐employed underwent a rehabilitation course of several weeks and their employment would be subject to a review by the HNDC after one year, at which point they could be dismissed or permanently re‐employed (on file with authors).

[48]
See Edward Wong and Erik Eckholm, “Allawi Presses Efforts to Bring Back Ba'athists”,
New York Times
, October 13, 2004, at A12.

[49]
Editorial, “Dangers of the Inquisition: How de‐Ba'athfication is Helping the Rebels”,
Economist
, November 27, 2003, at p. 43.

[50]
See CPA Order 100 of June 28, 2004, § 6, provisions 7; Revisions of CPA Memoranda Provisions and CPA Memorandum No. 7, “Delegation of Authority Under De‐Ba'athification Order Number 1”.