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Cardozo Journal of International and Comparative Law

Abstract

This article aims to answer the question of whether the Iraqi Special Tribunal has the potential to reconcile the Iraqi community with its past, and if so, whether this potential has been fulfilled.

The first section looks at lessons learned from previous international criminal tribunals to assess their potential to reconcile a community with its past. In theory, international criminal law has the opportunity to impact diverse goals crucial for the reconciliation process, namely installing a sense of justice in victims, playing a deterrent effect on wrongdoers, providing a statement of the facts, acknowledging officially what happened, and providing an important foundation moment for the society. Moreover, the impact of criminal justice on reconciliation can be increasingly assessed as despite the lack of a formal duty to prosecute, a generalized duty of broadly defined accountability is demonstrated in recent post-conflict countries.

In practice, the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda have proven to have a successful impact on reconciliation as they have reached many of the necessary post-conflict goals. They have done this through substantially increasing their level of credibility, which is fundamental to achieving an impact on reconciliation, increasing their efficiency over time, and ensuring globally a positive impact on the post-conflict setting. In addition, these tribunals highlighted the importance of creating courts with a closer contact to the community to be more conducive to reconciliation. Subsequent tribunals therefore were set up as semi-internationalized tribunals aimed at having an increased impact on affected communities, such as in Kosovo, East Timor, Cambodia, and Sierra Leone. The Iraqi Special Tribunal ("IST") thus benefited from past experience with regard to reconciliation from both international and semi-internationalized tribunals. The IST even took these lessons a step further as it was particularly close to the effected community with less internationalized elements. Therefore, the Iraqi Special Tribunal had the potential to contribute significantly to the reconciliation of the Iraqi people with their past.

The second section analyzes whether this potential for reconciliation has been achieved in Iraq. Because the Iraqi Special Tribunal has restricted the statement of the facts that is deemed important for the reconciliation process, legitimized the principle of retaliation, driven the convicted perpetrators into social and political isolation, and reinforced the culture of impunity because of its lack of fair trials, it has had a negative impact on reconciliation. Further, the IST has contributed a new prong to the accountability versus accommodation debate in that if accountability is chosen by a regime to deal with previous perpetrators of human right abuse, then this choice will only further peace if the trials are perceived as fair and legitimate.

Nevertheless, Iraq can stand to learn from other examples where tribunals have not contributed fully to the reconciliation process. Although amnesties are not a preferred means and tend not to advance reconciliation, previous examples show that criminal trials combined with truth and reconciliation commissions achieve the most effective results in terms of reconciliation. Because holding trials in Iraq has particularly hindered the reconciliation and peace process, there is an urgent need to counterbalance the effects of the IST with such a commission. This commission would need a particular focus on including Sunnis and should be coupled with political strategies of inclusion.

In conclusion one can argue that internationalized criminal tribunals do have the power to achieve reconciliation in postconflict countries, although given the reverse impact the Iraqi Special Tribunal has had on Iraq, a combination with an Iraqi Truth and Reconciliation Commission should be sought. Finally, through lessons learned in Iraq, one can argue for the future use of the International Criminal Court ("ICC") in such situations as the ICC demonstrates the key elements needed to achieve a reconciliation process while rendering fair justice.

Disciplines

Law | Law and Politics | Military, War, and Peace

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