Iraq

Consultant to the US Department of State, Future of Iraq Working Group on Justice (2002-2003)

Background

Prior to what some would refer to as the invasion of Iraq, the US government undertook a number of political actions designed to facilitate its occupational task after ending Saddam Hussein’s tyrannical rule of Iraq for over 30 years. It was estimated at the time that in addition to every conceivable human rights violation that such a regime can undertake, the Saddam regime had killed over 300,000 Iraqis, and in the course of its aggressive wars against Iran (the First Persian Gulf War, 22 September 1980–20 August 1988) and Kuwait (2–4 August 1990), an estimated one million people were killed, including both combatants and non-combatants on all sides. The record of human rights depredations of the Saddam regime stands among the worse recorded in modern history. The US was relying in part on support from the international community to remove a tyrant, even though its actions were based on false—not to say falsified information—about that regime having weapons of mass destruction and contacts with al-Qaeda. Both of these allegations turned out to be untrue. The US was left with advancing the agenda of freedom, democracy, and human rights for the people of Iraq. As a result, the US Department of Justice undertook a program to establish a special tribunal to prosecute Saddam Hussein and the senior members of his regime, as well as a number of other programs relating to the restoration of the rule of law and the establishment of a record of the regime’s human rights violations. Of the three, the first was given the highest priority.

I was tasked with the preparation of a draft statute for the establishment of what became known as the Iraq Special Tribunal (IST), which ultimately prosecuted and convicted Saddam Hussein and other senior members of his regime. I prepared the draft statute. Because I was working on the establishment of an international criminal court at the time and had previously worked on the drafting of the statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) in my capacity as Chairman of the Commission of Experts for the former Yugoslavia , I included the three crimes contained in these international instruments, namely genocide, crimes against humanity, and war crimes. However, because the draft statute of the International Criminal Court (ICC) had not yet been approved, the definitions of crimes against humanity and war crimes found in the IST statute are not entirely the same as those which were approved in Rome. Rather, they are much closer to the definitions contained in the ICTY and International Criminal Tribunal for Rwanda (ICTR) statutes. This did not, however, end my involvement with the IST.

Through the International Institute of Higher Studies in Criminal Sciences (ISISC), I was tasked with training all of the IST judges, some of whom had been politically selected by the new government and had no prior judicial experience. But even those who did have judicial experience had no exposure to international criminal law (ICL), and they therefore needed to understand the legal elements required to be proven for these three crimes, along with the minimum international standards of fairness and due process. The initial training was conducted at ISISC’s seat in Siracusa, Italy, with subsequent sessions held in Iraq. Two additional sessions were held midway through the trials, to reinforce shared experiences among the judges and to address legal issues that they faced during the course of the proceedings.

The International Human Rights Law Institute at DePaul University College of Law (IHRLI), which I co-founded in 1990, and ISISC, which at the time was also under my direction, continued to work jointly and in cooperation with one another to carry out a number of activities. Some were performed exclusively under the name of IHRLI, others under ISISC. IHRLI received its funding from the US Department of State, and its projects included the reopening of three law schools in Baghdad, Basra, and Sulaymaniyah in Kurdistan. I oversaw the work of reopening these three law schools, rebuilding its physical facilities, establishing their law libraries, developing curricula, and ultimately, when the project was complete, I had the satisfaction of seeing the enrolment of 4,500 law students. All three law schools bear a plaque recognizing the work of IHRLI.

ISISC, in the meantime, was involved in a major project with Iraq’s Superior Council of Judges to develop policies and curricula for the training of judges, codes of ethical conduct for judges and prosecutors, and methods and techniques for judicial administration. In this capacity, ISISC has worked in Iraq since 2002, organizing 12 technical assistance programs in human rights, rule of law, and post-conflict justice. Among the 725 participants of these programs were jurists, law enforcement officials, justice operators, Iraqi government officers, and 195 international experts. One result of these programs was the issuance of 10 publications. ISISC has worked to link human rights, the rule of law, and post-conflict justice to the broad processes of national reconstruction in Iraq. It has coordinated its own efforts with those of the Iraqi Supreme Court, the Iraqi government, faculties of law, and others in support of rule of law capacity-building. More specific contributions include the reform of legal education, justice training, the development of new legal institutions, support for gender equality, and assistance to the Supreme Court and the Ministry of Justice in the development of a comprehensive plan for justice sector reform. ISISC worked to promote the adoption of a more comprehensive approach to rule of law as a central component of national reconstruction. ISISC consultants conducted research, training, and advocacy on post-conflict justice; designed and managed conferences on governance issues, such as federalism and domestic security; provided training and capacity-building for members of the Iraqi Special Tribunal (now the Iraq High Criminal Court); and assisted in the development of a comprehensive rule of law program for the Iraqi justice system. The ISISC’s technical assistance programs have been conducted with cooperation and financial support from the US Department of State; the IST; the Regime Crimes Liaison Office, the US Department of Justice; IHRLI; the Ministry of Foreign Affairs of Italy; the Ministry of Human Rights Affairs of Iraq; the Penitentiary Administration Department, Ministry of Justice of Italy; EUJUST LEX, European Mission in Iraq; the United Nations Assistance Mission for Iraq (UNAMI); the United Nations Office on Drugs and Crime (UNODC); the United Nations Development Programme (UNDP); the Ministry of Interior of Iraq; the Ministry of Interior of Egypt; the Department for International Development (DFID), UK Government; and the Department of Public Security, Ministry of Interior of Italy.

IHRLI also had a number of other grants from the Department of State, one of them falling within the category of investigations—a project to develop an oral history of the Saddam regime’s victims. The program was under the direct supervision of Daniel Rothenburg, IHRLI’s then-Managing Director. The project undertook to interview some 5,000 victims of the Saddam regime and record their histories. Regrettably, the project was not completed after I left IHRLI’s presidency, and its results were also regrettably not published.

My insights into some of the personal stories of conflict is that human rights abuses—particularly torture and similar practices such as rape—are performed in the same manner by the same types of people, irrespective of what the different regimes that engage in such practices may advocate. Ultimately, it is about good and evil and abuse of power that leads to the dehumanization of others. What happened under Saddam is no different than what I experienced in the former Yugoslavia and in other contexts such as Libya.

Unfortunately, there was never a follow-up in Iraq either in connection with the violations committed by the Saddam regime or for the violations that occurred subsequently, particularly in connection with the sectarian violence between Shi’a and Sunni, which is believed to have caused almost as many casualties in the last ten years as had the Saddam regime in the 30 years prior.