Handling peace and governance in Iraq

What the Coalition Authority and the nominated Governing Council face today in Iraq are hard choices. There is the question of legitimacy which affects every facet of that country's renewed emergence as a sovereign entity. So called non-implementation of UN Resolutions helped to start the war. The absence of requisite UN Resolutions continue to hamper the emergence of peace.

The taking into custody of Saddam, the killing of his sons or the arrest of the leading members of the past Iraqi Administration have not really brought about peace within the war-affected country. The incidence of regular attacks continues and governance is far from stable. Different multilateral institutions have cut back on their presence and many foreign voluntary organisations are disassociating themselves from more intensive activity on the ground.

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The real problem has been the finding of an acceptable formula for the United Nations. This was highlighted in the year-end UN news conference on 19 December. The UN Secretary General indicated that he was still not clear about the definition of the key role that the United Nations was expected to play in Iraq. He said "what I am asking is for them to indicate to me exactly what role they want the United Nations to play, who is going to be responsible for what, and who takes what decision, so that there is no confusion." This is important. Annan has repeatedly insisted on a clear UN role so that he can then weigh whether the tasks were worth the security risks.

There is a political connotation in having UN associated within Iraq. This has to be understood by all the players including those in the Iraqi Governing Council. As such, it did not help matters when we were informed by Iraq's acting Foreign Minister Hoshyar Zebari (in a recent meeting of the UN Security Council) that the United Nations could not be a political player in his country. This was disappointing.

Another opportunity was lost in November when the United Nations was excluded from the agreement between the Coalition and the Governing Council related to the handing over of power to a provisional government in June 2004 and general elections by the end of 2005.

Similarly, the efforts of the Coalition Authority to bar countries other than Coalition partners from bidding for reconstruction contracts in Iraq has smacked of political immaturity. This 'divisive' policy will not facilitate return of stability and faster reconstruction within Iraq. What is required now is association of more countries in the effort to rebuild Iraq. This is the only way to encourage other countries who are sitting on the fence to send troops to restore peace and security in that war ravaged country. In the recent past, France, Russia and Germany have hinted that they were willing to reconsider and re-examine the large debts that Iraq owes them. Such olive branches should not be spurned.

Talking to 'Newsweek' (15 December), Mr. Dominique de Villepin, the French Foreign Minister made some interesting observations. He pointed out that 'we have a unique opportunity today because more and more countries in the world are either democratic or aspire to democracy'. After commenting that 'it is not as though Americans are from Mars and Europeans are from Venus,' he has also suggested that 'the big lesson from Iraq is that the international community should remain united, and that if you want to be effective, you need its legitimacy'. He has gone on to add that 'the US has to assume its responsibilities in the world, and it must do so as part of a team.' It is this last phrase that is so significant for reconciliation of all parties.

Governance is a difficult word. It denotes certain factors which need to be available for its proper usage. It also connotes certain aspects, which if present, will lend credence and legality to the process of governance. Meting out justice and ensuring fair judicial trials are building blocks for a credible system of governance.

We have already seen the great debate that has surfaced over the eventual trial of Saddam. Various shades of opinion have already been expressed. The US Administration has signalled that the Iraqi people will decide what to do with Saddam. At the same time suggestions have made about the prospect of an 'ultimate penalty'. This is a critical juncture. The way the Coalition Administration and the Governing Council determine the fate of Saddam will create their own image. This is an opportunity to show to the rest of the world in general and the Arab world in particular that there is no hung jury and that the judicial process has been given full opportunity. This chance should not be lost.

Hamid al-Kifai, the spokesman of the US-appointed transitional Council recently told AFP that 'all the Governing Council members agree that Saddam must be tried in Iraq by Iraqi judges'. This is sensible. However, what is important is the formulation of a credible tribunal based on transparency that would give full access to those willing to testify and defend the ousted dictator. Saddam's daughter, Mrs. Raghad Hussain, speaking from Amman has pointed out that she had little faith in her father receiving proper justice within the new Iraq (as the trial will be conducted by a regime which is not recognised internationally) and has proposed that there be a trial under international supervision. She believes that this will enable her to appoint attorneys from abroad to defend her father properly.

Here comes the crunch. Access to lawyers and other forms of defence would be essential if any trial is to be construed as legal. It should also be held by a truly elected government of the people of Iraq.

In the meantime, delicate and sensitive questions are also being raised about the status of Saddam Hussain. The United States has promised to grant him the protections stemming from the Geneva Conventions but is not willing to regard him as an actual prisoner of war. This has led to some critics alleging that provisions of Article 13 of the Third Convention of the Geneva Conventions related to prisoners are not being strictly followed. Concern has also been expressed that undue pressure might be employed by the detaining authorities, particularly the CIA to obtain information from Saddam regarding the alleged presence of weapons of mass destruction. Added to this had been the furore of a possible death penalty. The United Kingdom has already spoken out against the possible use of capital punishment. The European Union is also clear in their stance about this subject.

Occupying Iraq has been the easier part of the bargain. It is essential that the Government Council in Iraq understand that ruling the country will be facilitated if they are seen to be listening to all sides. This will ease the path of governance.

Saddam's trial can be the litmus test. There are many possible charges that could be fielded against him -- campaign against the Kurds in the 1980s, the use of poison gas at Halabja, suppression of Kurdish and Shia revolts after the first Gulf War, brutality against the Marsh Arabs and crimes committed in the unprovoked aggressions against Iran and Kuwait. The entire world community has known for some time these facts and can also apprehend possible consequences arising out of such charges. The only question that remains is how to try him without creating fresh grounds of controversy.

Some have suggested that he should be tried before the International Criminal Court. This however cannot be done as most of the crimes he might be charged with were committed before July 1, 2002, the date from which the Statute for this Court came into force. The UN Security Council could establish an ad hoc tribunal with jurisdiction over crimes committed by the Baath regime. Such a step would however not be easily accepted, given the costly and time consuming trials that have been underway for some years now with regard to incidents in former Yugoslavia and Rwanda. The Coalition Authority would probably also desist such a move.

The other option according to many would be to set up or create a hybrid court as is now in operation in Kosovo, East Timor and Sierra Leone. In such a matrix, the tribunal could be set up in Iraq and consist of local Iraqi and international judges and also jurists recommended and selected by the Organisation of the Islamic Conference or the Arab League and be based on a combination of domestic and international criminal legal provisions. The experience of the United Nations and the International Court of Justice could also be associated with regard to the administrative format. Such a measure would lend credibility.

There is general acceptance for such a Tribunal. Many non-Iraqis support the creation of such a Court. Two serious problems however delimit this option -- the Iraqi Governing Council's desire to retain the death penalty in all proceedings and the Statute adopted by the Governing Council on December 10, 2003 (pertaining to the formation of 'The Iraqi Special Tribunal for Crimes against Humanity') which has conferred jurisdiction over Iraqi nationals and residents accused of specified crimes committed between July 16, 1968 and May I, 2003. This has complicated the situation. Fortunately, till now, the US government while repeatedly expressing support for prosecution of Baath -- era crimes in Iraqi courts, has not endorsed the Governing Council's desire to prosecute Saddam before the Special Iraqi Tribunal.

The Coalition Authority today is at an important crossroad. These are sensitive times. The eventual credibility of the administrative machinery of "free" Iraq is at stake. The Muslim world not having seen any evidence of weapons of mass destruction till now, is waiting to see a trial above criticism. This opportunity at least must not be lost.

Muhammad Zamir is a former Secretary and Ambassador.