A question of justice

Bringing justice to the victims is the key to building peace and democracy in Iraq, writes Salah Nasrawi

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As the world celebrated International Justice Day last Sunday, there was an opportunity to reflect on the conflict in Iraq, which since the US-led invasion in 2003 has resulted in hundreds of thousands of deaths and acts of abuse, with most of the victims having been forgotten and few of the perpetrators having been brought to justice.
The occasion, which marks the day a diplomatic conference in Rome adopted the statutes of the International Criminal Court (ICC) in 1998, coincided with Iraq’s announcement that it would execute two of former Iraqi president Saddam Hussein’s half-brothers within the next month along with three other former regime figures after the five were handed over by the US military.
While the Iraqi people have been subjected to mass crimes both under the Saddam regime and during the subsequent US occupation, very few of the perpetrators have been prosecuted in a proper manner, leaving the victims clamouring for justice.
Now that US forces are preparing to end their eight years of occupation of the country by the end of the year, there is growing debate in Iraq about whether the country will be able to institutionalise peace and democracy without at the same time meeting the demands for justice among ordinary Iraqis.
There have been questions about whether the national Iraqi courts will be able to investigate and prosecute the perpetrators of the crimes that have taken place in the country alone, or whether there will be a need to resort to international mechanisms in order to ensure that those responsible for human rights abuses are brought to account.
Nowhere is this need for a careful approach to ensuring justice for the victims of human rights violations at the hands of the former regime, the country’s new rulers and the occupation forces more pressing than in Iraq, where all three have been responsible for atrocities.
Recent rulings by British, Spanish and US courts have also shown the need for more work to be done to end the impunity that has often been granted to those who have perpetrated some of the gravest crimes against humanity.
Earlier this month, the European Court of Human Rights held that Britain had violated the European Convention on Human Rights by its failure adequately to investigate abuses carried out by British soldiers in Iraq during the occupation.
The case involved incidents which had occurred between May 2003 and June 2004 in the Basra province of Iraq, during which time Britain was the occupying power and therefore was responsible for security.
The landmark ruling by the Strasbourg court found that Britain had violated the rights of the families of four Iraqis killed by British forces when an independent investigation into their deaths overturned a British House of Lords ruling that there was no UK jurisdiction regarding the deaths.
The ruling is important since the UK government will now be obliged to accept that human rights law applies everywhere in the world and its soldiers are duty bound to protect civilians.
At the same time, Britain’s Court of Appeal started hearings on Monday regarding demands for a public inquiry into allegations of torture and inhuman and degrading treatment carried out by British soldiers and interrogators in Iraq.
In Spain, a judge also announced plans last Thursday to question present Iraqi Prime Minister Nuri Al-Maliki and three Iraqi military officers about the deaths of 34 people at an Iranian exiles camp in Iraq.
Spain launched an independent probe into the deaths of 11 Iranian exiles living at the camp in 2009 under the doctrine of universal jurisdiction, which it says allows it to prosecute serious crimes committed in other countries.
Under the Spanish ruling, Al-Maliki will be automatically summoned to appear before the court when his term as prime minister ends and his judicial immunity expires. The judge ordered the three military officers to appear before the court in October.
The British and Spanish court rulings are in stark contrast with a US Supreme Court ruling last week that a group of former detainees at the Abu Ghraib Prison in Iraq will not be able to sue US military contractors who they say participated in torture and other acts of abuse at the US-run detention facility in 2003 and 2004.
The court last week declined to take up the case of an Iraqi man involved in litigation with the US Tiran Corporation, raising the issue of whether private contractors hired by the US military to perform services in a war zone may be held accountable for allegedly participating in acts of torture and other war crimes.
While some low-ranking American soldiers have faced trial for crimes committed in Iraq, the US has routinely claimed immunity for its soldiers and sometimes also for foreign security guards in its employ in Iraq.
The US army in Iraq has also refused to take full responsibility for its troops to protect civilians during military operations, as is stipulated under the 1949 Geneva Conventions and 1977 Additional Protocols.
It is against this background that the British and Spanish rulings take on their full importance, since in them the British and Spanish courts make it clear that national human rights obligations do not end at a country’s borders.
The rulings could open up Iraqi forces, together with US and other occupation forces, to a deluge of claims of criminal abuse, adding to pressures for further public inquiries into the behaviour of foreign troops since the US-led invasion of the country in 2003.
They also open a window of opportunity for the Iraqi victims of such abuses and certain non-governmental parties to take such claims to the European courts, which have now extended their jurisdiction in such cases beyond their territorial limits and outside Europe.
This could also be a step closer to allegations of the killing of Iraqi civilians by US forces or caused by the US occupation of the country to be taken to the International Criminal Court for examination.
International legal experts have argued that illegal activities carried out by foreign troops in Iraq and by Iraqi security forces have been systematic and widespread enough to qualify as crimes against humanity.
Given their gravity, and the fact that they were perpetrated as part of a political conflict, crimes committed in Iraq during the occupation could be prosecuted before the ICC, such experts say, even if the court has no technical jurisdiction over such forces.
However, an additional hurdle may be that neither Iraq nor the United States are signatories to the Rome Statute that established the ICC.
Yet, this week’s announcement of the planned execution of five Saddam-era officials on charges of mass murder has once again underlined the need for proper legal procedures to be put in place in Iraq to address both past human rights abuses and the atrocities committed under the US occupation.
The executions are expected to raise sentiments that are very much part of the complex mix of emotions that has overwhelmed Iraq as it struggles to reconcile itself with its past and to move on into the future.
Many Iraqis do not consider the fall of Saddam as being the end of the Baath Party regime in the country and insist on bringing those responsible for human rights abuses under its rule to justice, while others consider crimes committed in the country after Saddam’s fall also to be an impediment to building a just and democratic future.
It has long been argued that the legacies of both periods are too complicated and interwoven to be simply dealt with or for justice to be done without giving way to calls for revenge.
The significance of the British and Spanish court rulings is that Iraqis are now able to rely on international law to provide the legal framework necessary both to bring those responsible for past abuses to justice and to halt any ongoing abuses.