Before the Law: Military Investigations and Evidence at the Iraqi Special Tribunal
Washington and Lee University - School of Law
January 11, 2012
Michigan State University Journal of International Law, Vol. 13, p. 107, 2005
Washington & Lee Legal Studies Paper No. 2011-41
On July 1, 2004, Saddam Hussein made his first appearance before the Iraqi Special Tribunal for Crimes Against Humanity (IST). That extraordinary moment was a brief scene in a still unfolding drama that, thus far, has included such epic moments as the American-led invasion of Iraq in the spring of 2003 and Saddam Hussein's improbable capture by Coalition forces in December of that year. The toppled dictator's full-fledged trial is still to come. With the IST, created by a statute of the now disbanded Iraqi Governing Council, the world finally has the vehicle with which it can bring Saddam Hussein to justice. Holding Saddam Hussein and other major figures from the repressive Baath Party and Iraqi Armed Forces accountable for their crimes will be a necessary, but not sufficient, part of fashioning a new, democratic Iraq. In meting out accountability for atrocities, the Tribunal will play a fundamental role in mending a society that straddles a number of ethnoreligious fault lines and has just emerged from the darkness of Saddam Hussein's decades-long reign of brutality, terror, and murder.
If, however, the IST comes to be viewed as nothing more than a thinly veiled instrument of 'victors' justice' "imposed by the American occupiers, it might actually undermine reconciliatory efforts in Iraq. The IST's legitimacy, and ultimately its efficacy, requires that it live up to its ambitions for independence, autonomy, fairness, and justice."
In this article I argue that the IST is flawed and does not adequately project the necessary autonomy and fairness. I pursue a narrow critique, nonetheless justified by the fact that the IST, along with so many other facets of the American-led occupation and reconstruction effort, does not begin from a position of great strength and trust. I argue that the IST's Statute, and early drafts of its Rules of Procedure and Evidence, suffer, in particular, because they fail to adequately account for the fact that some portion of the evidence that will eventually be presented to the IST will have been gathered and developed by Coalition military forces. This circumstance gives rise to at least two significant concerns, both of which have the potential to harm the IST's standing in post-war Iraq. First, still engaging the enemy, albeit now in the effort to combat the raging insurgency, Coalition forces are deeply interested in gathering intelligence for the purposes of advancing their immediate combat mission as well as the broader 'war on terror.' The documented abuses perpetrated by U.S. and British soldiers in the course of interrogations, most infamously at Baghdad's Abu Ghraib prison, confirm that Coalition soldiers are not operating in the service of an independent judicial organ charged with developing and corroborating investigative hypotheses while also ensuring the protection of the rights of their captives." Second, even if it were possible to characterize the investigative efforts of Coalition forces as disinterested, and even if Abu Ghraib is found to be a tragic departure from the respect Coalition forces otherwise generally show for the laws of war applicable to conducting criminal investigations, these rules of engagement nonetheless fall well short of the widely accepted human rights protections applicable to criminal investigations. The IST's Statute and Rules have sought to purchase the legitimacy the IST desperately needs through the application of protections provided by international human rights law and pre-existing Iraqi rules of criminal procedure to the Tribunal's investigative capacities. At the same time, the Statute and the Rules undermine the IST's legitimacy by failing to qualify the role played by evidence collected by Coalition forces operating under the higher normative threshold established by the laws of war. Whatever rules might apply after the IST begins its investigations, the IST's Statute and Rules say nothing of the use to which the Tribunal might put the evidence gathered by Coalition military forces and delivered to it on a 'silver platter,' in spite of the fact that those military forces are operating in a distinct normative context before the applicability of the protections provided by the IST's Statute and Rules.
My critique is grounded in two concerns. The first is a pragmatic concern for the legitimacy, and ultimately the success of the Iraqi Special Tribunal. The IST must contribute to the reconciliation of a deeply fractured Iraq and it will be one of many reconstruction institutions that contribute to the rooting of democratic ideals, particularly the values of an independent judiciary and the rule of law, in the new Iraq. The second is a normative concern. As a matter of legal obligation, the United States and Iraq must uphold the rights and rules of criminal procedure defined by international law, with which I contrast the laws of war applicable to the gathering of evidence during combat. In Section I, I will briefly discuss the role played by military forces in the investigation of alleged war crimes and crimes against humanity - crimes like those that will be the focus of the IST's work.
In Section I, I will highlight the perilous conflict of norms potentially besetting the IST by focusing on just one right, namely the nature and scope of the right to counsel afforded to suspects during interrogations. I will contrast the rules applicable under the laws of war with the protections provided by international human rights law. From among the other rights that easily could have served as the basis for my critique, the right to counsel during interrogations is of particular consequence, especially in light of the abuses perpetrated during interrogations at Baghdad's Abu Ghraib prison and with a view to the year-long detention and interrogation of Saddam Hussein. In neither case did the subjects of Coalition military interrogations benefit from the assistance of counsel. I conclude, in Section III, by arguing that, for the pragmatic and normative reasons identified above, the IST's Statute and Rules should have explicitly provided a mechanism for the potential exclusion of evidence gathered by Coalition military forces.
Number of Pages in PDF File: 50
Keywords: Human Rights, International Law, Transnational Law, Criminal Law
JEL Classification: K10, K33, K14Accepted Paper Series
Date posted: January 12, 2012
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