By March 3, 2006
The Iraqi Higher Criminal Tribunal is currently trying Saddam Hussein. The trial, however, is about much more than the conviction of one man. The trial, according to Prof. Michael Newton, law, Vanderbilt “is to reestablish the rule of law in Iraq.”
Professor Newton delivered his speech, “Lawyering in Baghdad: Democratic Principles and International Law in Iraq” yesterday in Myron Taylor Hall. Newton helped draft the Statute for the Iraqi Special Tribunal, and he also taught international law to the jurists and lawyers who served on the special tribunal.
Newton spent much of the lecture explaining the way in which the tribunal balances international and national law. This balance exists so that Iraqis can benefit from existing international legal guidelines, while still upholding their own legal culture. Newton described the fusion as “an internationalized domestic court.”
The international part of the tribunal comes from the International Crimes Court (ICC), which was created in 1998. The ICC is an international court in which individuals are prosecuted for “the world’s gravest crimes.” According to the court, these crimes are genocide, crimes against humanity and war crimes. For each of these crimes, the court has laid out specific definitions.
Neither Iraq nor America signed the treaty that created the Court, so, according to Newton, the ICC “does not have jurisdiction” to try Saddam Hussein. Nevertheless, the Iraqi tribunal used the ICC as a template for its own trial. Namely, the Iraqi Tribunal used the ICC’s definitions for genocide, crimes against humanity and war crimes to identify its charges against Hussein.
The Iraqi tribunal also added three more charges, not defined by the ICC, against Saddam Hussein. The charges are: manipulating the judicial system, the destruction of Iraqi oil and waste of natural resources and the abuse and pursuit of policies that may lead to war. These three additional charges represent a domestic component of the tribunal.
According to Newton, the domestic component of the trial is essential. Without it, he believes the trial would lack legitimacy, because it would ignore Iraqi customs and culture. “You have to start with that context, those people, that culture and build from there … if you don’t do that, what’s the point,” he said.
Iraq’s long tradition with the law, said Newton, affords them the right to try Hussein on, in part, its own legal terms.
“Don’t make the mistake of saying we know the law and they don’t” warned Newton. Newton cited Baghdad’s acclaimed law school and the country’s reverence for Hammurabi, the world’s first lawmaker, as examples of Iraq’s “rich legal tradition”
Despite its “rich legal tradition,” language barriers have, in the past, separated Iraq from the legal traditions of the West. Iraqi scholars cannot read some of the greatest international law cases, because they cannot read French or English. Thus, there is a great gap between the sea of existing legal knowledge and the legal knowledge that Iraqis have access to.
Consequently, many Iraqis hope that Hussein’s trial will leave the same sort of legacy that past war crime trials such as Nuremberg have left. The hope, said Newton, is that the Arab world will now have its own great legal precedent.
“[Iraqis are] powerfully infused with a sense that they are a doorway to the wider world” said Newton.
Christian Eckart grad was hesitant to accept Iraq’s ability to successfully adapt international law.
“They’ve never adapted international law” said Eckart, “So can they do it? Can they ensure a fair trial, because that’s what international norms request?”
Joery Matthys, a visiting scholar, had his own reservations. Although Matthys recognized that the tribunal could not have been tried under the ICC, he said he wished it could have been.
“I was glad to hear that a lot of elements for ICC were incorporated, but it would have been more interesting for the ICC to try it,” said Matthys.