American Enterprise Institute for Public Policy Research
Washington, D.C.: October 3, 2002
Conference: The Day After: Planning for a Post-Saddam Iraq
Paper presented by
Munther al-Fadhal, Ph.D.
Counsellor-at-law and human rights author
Former Visiting Professor of Middle East Laws
International College of Law: London
Ladies and Gentlemen: I would like first to thank you for your kind invitation to speak at this important conference concerning “Wither Iraq.” I wish to express my gratitude to the friends of the Iraqi people in the United States who are trying to help them gain their freedom, build democracy, and establish the rule of law. This desired future for Iraq could only be achieved through two important means:
First, Trying the Iraqi officials accused of committing international crimes in order to affirm the principle of retribution, establish justice, apply the law, and respect human rights. This is the point of departure intended to accord the law the leading role in the land of Mesopotamia that established the first laws in human history.
Second, Modifying the shape of the Iraqi State towards a united, federal, parliamentary state, dismantling the organs of the dictatorial regime, and rebuilding the organs of the new Iraqi state which would be committed to pursue the following:
1. Establishing the federal system.
2. Respecting human rights and the rule of law.
3. Declaring state neutrality and never engaging in any war in the future.
4. Constructing democracy and civil society.
My participation in this panel on war crimes, which is the second panel of this conference, is intended to discuss the transition in the justice system. I thus state my legal opinion in the form of my responses to the questions put to me by the Chair, Mr. Christopher:
QUESTION ONE: HOW CAN SADDAM HUSSEIN AND
OTHERS BE BROUGHT TO JUSTICE FOR THEIR CRIMES?
There is not the slightest doubt that Saddam and a large number of the high officials around him have committed serious, international crimes against the Iraqi people (the Shi’a Arabs in the south, the Kurds in Halabja and in the Anfal campaigns, and the Faili Kurds), including crimes of genocide, crimes against humanity, and war crimes, as well as crimes of terrorism and of aggression against neighbouring states and the regime continues to constitute a threat for peace and security in the region and in the world.
All these crimes violate international laws and conventions. Saddam and his rule has killed no less than two million Iraqis in his internal and external wars, and he is the cause for the dispersal of an additional four million Iraqis in different countries in the world.
As for the external wars, Saddam’s regime launched war against Iran 1980-88, in which he deployed all kinds of internationally banned weapons such chemical weapons, deliberate hitting of civilian targets, and poisoning water sources. Saddam’s regime is a dictatorial regime that practices state terrorism. On August 2nd 1990, Saddam’s regime committed a criminal aggression and occupied the State of Kuwait, from which he refused to withdraw, forcing the international community to build a coalition to liberate Kuwait. Moreover, Saddam’s regime hit civilian targets in the State of Israel with 39 missiles, which constitutes a crime of aggression in violation of UN-Charter. And Saddam’s army set most of the oil wells in Kuwait on fire before its forced withdrawal, causing the greatest environmental catastrophe in the world that involved the annihilation of a large number of living beings as well as serious environmental pollution.
Neither Saddam nor his regime has ever complied with international decisions. He secretly pursued dangerous programmes to produce lethal weapons and weapons of mass destruction, thus threatening peace, security, and stability, both internal and external, regional and international.
Any fair trial, in accordance with international standards must have the following four ingredients:
A defendant accused of a crime. There are many persons who committed war crimes in Iraq; some work for the Baath Party, some for the army, the security and even many Iraqi officials. In my legal opinion we cannot try all these suspects, but only those who are responsible for sever violations of international law. Trials against all Iraqi defendants could take several years. So we should first be sure of how many Iraqi leaders are responsible for those war crimes, which are committed after the 17th of July 1968. Other Suspects and defendants should, after the establishment of a Truth and Reconciliation Committee and under certain conditions to governed by law, get general pardon.
A just, impartial court (open trial, right of appeal, victim and witness protection…)
We already have these three ingredients in place, but a new Iraq must show a new leaf, and what better new leaf than the abolishment of the death sentence-even for war criminals, for I support the abolishment of the death penalty, as death penalty is regarded as a violation of the fundamental rights of life and contravenes inalienable rights enshrined in Universal Declaration of Human Rights and other international human rights conventions from all Iraqi laws and indemnite judiciary all victims.
Most of the accused of war crimes (i.e. Saddam and other high Iraqi officials) live inside Iraq and some reside outside Iraq. The legal proofs, like records and documents, are available in the United States and with the London organization INDICT and there are also surviving victims and witnesses of the international crimes committed by the Iraqi regime inside and outside Iraq.
The Court Models:
Regarding the special court that looks into the war crimes committed by Saddam and the Iraqi officials, we can consider the following possibilities:
The International Crime Court, the Statute of which was adopted Rome 1998 and came into force on April 11, 2002, cannot bring these criminal to trial because Iraq is not a party to the Statute of this Court and the Courts temporal jurisdiction is to try only crimes committed after September 1, 2002. The crimes of Saddam and the officials of his regime occurred before this date.
A Special International War Crime to try Saddam and the Iraqi officials could be set up by a resolution from the United Nation’s Security Council, similar to the Special International War Crimes for former Yugoslavia, Rwanda and Sierra Leone, on the condition that its headquarters be in The Hague, Holland.
A National Iraqi Court could be set up, by recruiting a group of Iraqi judges, jurists, investigators and administrative specialists. This choice would maintain the integrity of the national sovereignty of the Iraqi State. The local court system to try Iraqi war criminals under Iraqi law created four categories of crimes, each with different punishments:
The first category relates to individuals “whose criminal acts or whose acts of criminal participation place them among the planners, organizers, instigators, supervisors and leaders of the crime of genocide, crimes against humanity, war crimes and the crime of aggression”. Theses individuals should include persons who acted in positions of authority at the national, governorate, communal or sector level, or in a political party, the army and militias, and who perpetrated or fostered such crimes.
The second category: relates to individuals “whose criminal acts or whose acts of criminal participation place them among the perpetrators, conspirators or accomplices of international homicide or of serious assault against the person causing death”. These include participants in individual murder cases, where it is clear that a defendant participated in such crimes, but where it may be difficult to prove a tie between such individual crime and those of the crimes listed in the first category.
The third category: relates to individuals “whose criminal acts or whose acts of criminal participation make them guilty of other serious assaults against the person”. This category would involve individuals who participated in serious assaults against Iraqis, such as torture but where it is difficult to prove particular a murder case against such individuals.
The fourth category: addresses persons who committed offences against property and the environment. This would involve accused who participated in the destruction of villages in Kurdistan, the drying up of the marshes and the oil spills following the Gulf War of 1991.
A mixed court composed of judges appointed by Iraq and by the United Nations, similar to the one established for Sierra Leone.
Call Saddam and the other Iraqi official for trial in an American court specialised in international terrorist crimes in accordance with American federal legislation. This is justified by several indications that point to a connection between Saddam’s regime and the international terrorist acts, especially those committed by the al-Qa’ida criminal organization.
QUESTION TWO: HOW CAN A NATION RECOVER WHEN ITS MILITARY AND
GOVERNMENT HAVE BEEN IMPLICATED IN GENOCIDE AGAINST THEIR OWN PEOPLE?
Iraq can never recover its strength and rise again to live as a civilized country that respects human rights and the principles of law unless the following conditions are met:
Building democracy and civil society.
Respecting human rights to all the ethnic nationalities, recognizing pluralism, and combating extremism, fanaticism, and terrorism.
Identifying the ideology of the Baath Party as being similar to Nazi ideology, accordingly banning it in Iraq. Creating a culture of tolerance and civilized democratic dialogue among the members all ethnicities, religions, and ideologies.
Securing international support for Iraq, pursuing a Marshall plan for its reconstruction of Iraq, and defining a direction for its path of peace, and economic, cultural, religious, and intellectual freedoms.
Declaring Iraq a neutral country that does not engage in wars and is led by civilians elected through constitutional institutions. In this new Iraq, women, representing half the society, play an active role.
Establishing good neighbourly relations with the countries in the region and other countries in the world, normalizing relations with the State of Israel, and respecting all international treaties, conventions, and legitimate resolutions.
Paying compensations from the Iraqi treasury to all Iraqis who suffered as victims of the successive dictatorial regimes that ruled the country (the Iraqis from among the Arab Shi’as, the Kurds, the Faili Kurds, the Jews, the Turkmen, the Caldeans, the Assyrians, and the others) as well as the victims of wars and the crimes against human rights.
Promulgating a permanent constitution and reforming the legal system in Iraq.
QUESTION THREE: HOW CAN THE EXPERIENCES OF THE OTHER
POST-TOTALITARIAN STATES INFORM IRAQ’S FUTURE?
We can benefit from the successful experiences of the countries that preceded Iraq in this realm after they have been liberated from totalitarian dictatorial regimes, such as Rumania, Yugoslavia, and others. We can pursue the establishment of a civilian government elected democratically under the supervision of the United Nations, the respect of peaceful succession of power, the dissemination of the culture of peace, tolerance, and the recognition of the other, as well as the abolishment of the death penalty. Moreover, we need to maintain the independence of the judiciary as in all civilized countries, separate religion from the state, and establish a secular state that recognizes and respects the Universal Declaration of Human Rights and issues the Bill of Rights of Iraqi Citizens.
We can also examine Yugoslavia’s experiment and adopt from it whatever is beneficial to the Iraqi society, since there are some similarities between the two countries in certain aspects, especially in the realm of ethnic, religious, and ideological diversity in the two countries. For such pluralist countries, the federal system suites them best.
We observe that Yugoslavia has solved the problems concerning the regime and multi-ethnicity according the Dayton Accord that organized governance and peaceful succession of power, through a presidential council, whose chairmanship alternates between members representing the three main ethnic nationalities that constituted ex-Yugoslavia. The shape of the governing system of the new Iraq has been dealt with in the constitution proposed by the Kurdistan Democratic Party for the Federal State of Iraq in which the new Iraq will consist of two regions, Arabic and Kurdish, within which the rights of the other minorities are respected. This proposed constitution comes very close to the ideas that I drafted and introduced in the blueprint of a project for the constitution, and which was published in Al-Mutamernewspaper, no.305.
Moreover, we can benefit from ex-Yugoslavia’s experience by seeking the expertise of some political personalities like Mr. Richard Hallbrook, the former American Ambassador to the United Nations, and Peter Galbraith, the former United States ambassador in Croatia. Finally, in spite of the great differences between the situation in Afghanistan and Iraq, there are many positive aspects that took place in post-Taliban Afghanistan that could be beneficial for Iraq such as having a civilian as a head of state, unifying the different tribes, and activating the role of women.