The journey to justice in Iraq

Ruti Teitel, Professor, Comparative Law, New York Law School, Project Syndicate

As questions continue to mount concerning the true rationale behind the Iraq war, we should avoid only looking backwards. Examining the U.S.-led coalition's prewar actions may well expose official deception and manipulation in making the case for military intervention. But the nagging questions about the campaign's legitimacy lie less in the past, and more in the ongoing absence of virtually any semblance of the rule of law in Iraq.

Today, the domestic security vacuum in Iraq is so profound that it calls into question whether the war is really over. Guerrilla attacks on coalition soldiers show that no neat line separates "before" and "after." So does the disturbing continuity between the absence of legality prior to the occupation and now, under the formal authority of the occupying powers. After all, it is only the rule of law that distinguishes free societies from dictatorships.

Coalition military officials recognize the obvious: Without proof of Saddam Hussein's demise, resistance by his hardcore supporters would inevitably continue. But what about the need for a wider reckoning with the former regime? Is justice for the victims and perpetrators of Saddam's crimes any less important for separating Iraq's past from the present and the future?

So far, security and law enforcement have been utterly inadequate to deal with past abuses. Given decades of repressive rule, and tens of thousands of disappeared Iraqis, there are already endemic problems of verification.

But from the outset of the intervention, coalition officials have displayed patent disregard for mass graves and massacre sites. Chaotic excavation and exhumation and unprofessional treatment of the evidence aggravates the challenges of uncovering the truth.

Unfortunately, the coalition's neglect of forensic issues reflects its wider failure to devise any strategy to address issues concerning the rule of law and justice, or any central body with the authority to begin building the necessary institutions. While U.S. Chief Administrator Paul Bremer recently vested authority in a number of judges, their powers are extremely limited, and apply only to present violations, not the sustained abuses of human rights that defined Saddam's regime.

With weapons of mass destruction nowhere to be found, the justice of this intervention remains an open question -- one that now turns on the coalition's efforts to establish the rudiments of legality in Iraq. These efforts will succeed only if they include a modicum of transitional justice.

As the occupation force in Iraq, the coalition has undertaken international obligations, under the fourth Geneva convention, to uphold security and the rule of law. This means that the coalition cannot do whatever it wishes with Saddam's henchmen and war criminals. It cannot simply ship them to Guantanamo Bay or Diego Garcia.

But the coalition's choices are extremely limited. Appointing an Iraqi tribunal capable of generating some form of legal accountability for Saddam and his henchmen -- an idea that is gaining ground among Bremer's staff, at least for Saddam Hussein if he is captured alive -- is unrealistic. No one is fully legitimate: neither those who thoroughly compromised themselves serving the Ba'athist judiciary, nor exile returnees. Similarly, the coalition would inevitably face the charge of "victor's justice" were it to administer and staff its own courts.

Only the UN can meet the demand for transitional justice. This requires the immediate establishment of a judicial body, whose legitimacy would be based on the same multilateral process that was sought prior to the war. In this case, Chapter 7 of the UN charter gives the Security Council authority to set up criminal tribunals, as it did previously to adjudicate massacres in the former Yugoslavia and in Rwanda.

Unlike the UN tribunal for former Yugoslavia, which was established during the Balkan wars, a tribunal for Iraq would be more constrained by the need to avoid applying justice retroactively. As a result, the UN Iraqi court's jurisdiction would extend only to the gravest violations of humanitarian law, on which there is a broad consensus, as set forth in Article 3 of the charter of the International Criminal Court.

But even such limited action is better than doing nothing. We know from the many cases of regime change in recent decades that the problem of transitional justice will not merely go away if ignored. Indeed, inaction in Iraq will not only postpone the inevitable reckoning with the past; it may prolong the past, as unfulfilled demands for justice fuel frustration, resentment, and support for extremist leaders and authoritarian solutions.

One of the main purposes of pursuing transitional justice is to reestablish legitimacy and the rule of law in the present. If the necessary institutions remain unavailable, then at the least an investigative commission should be created to establish an evidentiary record while this is still possible. Such a commission would afford a measure of preservative justice, enabling a more comprehensive verdict once the institutional capacity for achieving this is built.

There is still a chance to create a "before" and "after" in Iraq, and hence to redeem the legitimacy of the U.S.-led intervention and ongoing occupation. But the path lies before us, in a sustained commitment to security, the rule of law, and transitional justice.

The writer is the author of Transitional Justice.