WBy Ryan Black
hile the capture of Iraqi No. 45 on the most-wanted list brings the United States one step closer to amassing a winning poker hand, it also underlines yet another problem facing the United States in rebuilding Iraq – the distribution of postwar justice. This problem is not unique; rather it is one the United States and a budding international community faced after World War II. What is unique, however, is the international environment in which any Iraqi trial will take place. After World War II, the uncontested strength of the United States combined with the lack of any viable international alternative ensured a U.S.-dominated military tribunal at both Nuremberg and Tokyo.
Today, however, multiple alternatives – ranging from very poor to fair in quality – exist. In a sea of imperfect alternatives, the United States, Iraq and the international community would be wise to establish an ad hoc international criminal tribunal through the United Nations, as was done in both the former Yugoslavia and Rwanda.
But what about that new-fangled International Criminal Court, you ask? Unfortunately, it would lack jurisdiction because neither the United States nor Iraq are signatories to it. Additionally, the ICC can only adjudicate on crimes committed after July 1, 2002, which would omit the Iraq-Iran War and many others of the atrocities committed by Hussein’s regime leading up the invasion of Kuwait.
Others have advocated that Iraqi courts be allowed to dole out justice to the offenders. Similar proposals were advanced in days leading up to the establishment of a tribunal for the former Yugoslavia. In short, the risk of a corrupt judiciary should dissuade the world from entrusting such an important matter to Iraq. Beyond this, however, a U.N.-led effort would have the added benefit of providing crucial reform to Iraq’s legal system and training for lawyers in the country. If the United States and the world expect Iraq to become a democracy, it must ensure that Iraq’s most basic institutions are democratically sound.
A final option would be to simply repeat history and have the United States establish a military tribunal, a la Tokyo and Nuremberg. A U.S. military tribunal would be correctly labeled as victor’s justice, but it would also be highly ineffective. If Syria, as the George W. Bush administration alleges, is harboring various Iraqi officials, the United States currently lacks the power to recover them. Short of military threats, it will depend upon the goodwill of Syria to cooperate. An international criminal tribunal established by the United Nations, on the other hand, would be perceived as more legitimate throughout the world and would also require that the 191 member states, including Syria, comply with the tribunal’s requests.
An international criminal tribunal would also be the first of many steps in repairing the United States’ frayed relationship with the United Nations. While the Bush administration is quick to hand out construction contracts to U.S. firms, it is clear that the other members of the Security Council want to have an active role in rebuilding Iraq. If the rebuilding decisions are any guide, it is logical to believe the distribution of justice will be examined with even stricter scrutiny. An international tribunal demonstrates the United States’ willingness to cooperate and belies fears of a rogue superpower destined on colonizing Iraq.
There are also more direct benefits for the United States. Postwar justice is not cheap. In its 10 years of operation, the Yugoslavia tribunal has cost over $690 million. With deficits looming, the United States should look to avoid any unnecessary costs it can. A U.N. tribunal would spread its cost across the member nations, thereby lessening the direct burden placed upon the United States. Nations that were opposed to military action and did not contribute troops or money could take a larger role in shaping the most important democratic institution in Iraq.
There are, of course, risks. The tribunal will take time and probably have a shaky start. It took the Yugoslavia tribunal three years before it even tried the first case. Today however, Milosevic – the alleged mastermind – currently stands on trial for 32 counts of various breaches of international law, including genocide and crimes against humanity. If the Yugoslavia tribunal accomplishes nothing else, it has already successfully destroyed the legitimacy of Milosevic’s regime and those associated with it.
In postwar Iraq, U.S. leaders should resist the comfortable and now well-established tendency to go it alone. Instead, the United States should take the first step toward rebuilding not only Iraq, but also a battered international community, and negotiate with the United Nations for an international criminal tribunal.
Ryan Black is a University junior majoring in political science and Japanese.
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