The debacle

  Curtis F.J. Doebbler

The goal of law is to provide justice. It is a goal that the Quran instructs us all to strive for, and one of which Justice Jackson famously warned his fellow judges at the opening of the Nuremberg trials. "We must never forget," he said, "that the record on which we judge defendants today is the record on which history will judge us tomorrow...to pass these defendants a poisoned chalice is to put it to our own lips as well."

Since the early days of Islam and the Nuremberg trials more than 60 years ago, justice through international criminal law has been advanced significantly. First, the manner in which courts are created has evolved from courts established only to try specific persons, to courts intended to apply the rule of law to a wider category of persons. This trend can be seen first in the progression from the victors' courts of Nuremberg to the ad hoc United Nations' tribunals for the former Yugoslavia and Rwanda. The later tribunals, at least in theory, apply the law to everyone within their temporal and geographical jurisdiction. An even more substantive leap was made with the International Criminal Court. This permanent criminal court is eventually intended to apply the law to everyone.

Second, international human rights law now guarantees the right to a fair trial. Defendants are no longer subject to the arbitrary will of the victor in an armed conflict, but are to be tried by a competent, independent, and impartial tribunal.

And third, the international rule of law is now understood to apply to all states, and in the case of international criminal law, to all persons. This ideal takes us back to the original purpose of law, which is to ensure justice. And this in turn contributes to ensuring respect for the rule of law in society and providing redress for victims. It is through these developments that law serves laudable ends and not merely the timely and often dishonorable political interests of states.

Over 50 years ago--as Justice Jackson observed--and especially today, one could hardly imagine the existence of an important trial that failed to strive for justice by building on the above developments. Indeed, the law today not only makes a fair trial a human right, but subjects those who knowingly violate this right to war crimes charges. But despite this illustrious history and the legal developments outlined above, once again political ends have corrupted commitment to the rule of law.

The Iraqi Special Tribunal (IST) constitutes an attempt to reverse all three of the aforementioned developments because it is a short-sighted attempt by a powerful, but illegal, aggressor to legitimate its own crimes against peace. The tribunal is victors' justice born from an illegal invasion that grew into an illegal occupation. Such a court is unlawful under general international law that prohibits states from benefiting from their own illegal acts. It is also illegal under the law of occupation that prevents occupiers from changing the laws and court systems of a country.

In its functioning, the IST's violations of human rights have drawn criticism from almost every non-biased observer. The IST, for example, has been described by the UN's expert on fair trials as an illegitimate tribunal that breaches international human rights law. It has become a debacle notable for being stage-managed by the United States military that is occupying Iraq, and used by Iraqis who benefit from the foreign occupation to exterminate those with whom they have political disagreements. Instead of being a step in the development of international criminal law--the law it allegedly was to apply--it has become a dangerous embarrassment that has already led to the death of more than a half a dozen persons connected with the process, including two defense lawyers, and contributed to an out-of-control spiral of violence in society.

The IST judges, ignorant of both international criminal law and pre-existing Iraqi law, have refused to accept legal arguments, saying in at least one case, that they "don't want" them, as if to reinforce the insult to the rule of law.

The IST has failed to achieve justice, respect of the rule of law, or redress for victims of crimes. Instead it has instigated violence, encouraged disrespect for the law, and left victims wondering if the right people are on trial. When perpetrators of the crime of aggression are running the courts, the record on which they judge defendants is bound to be unjust. The IST has proven this to be true. The IST will poison international justice for a long time to come, unless it is forced to respect the developed concept of justice with which we live today. -Published 11/5/2006 © bitterlemons-international.org

Curtis F.J. Doebbler is one of the lawyers to former Iraqi President Saddam Hussein and professor of law at An-Najah National University in Nablus, Palestine.