Crimes and Punishment
By Eric A. Posner and Adrian Vermeule. Wall Street Journal. (Eastern edition). New York, N.Y.: Apr 11, 2003. pg. A.10
One of the first postwar controversies in Iraq will concern transitional justice -- the use of trials, truth commissions, purges of the bureaucracy and reparations to address the claims of victims of the Saddam regime. Iraqis already are displaying a keen sense of the magnitude of the injustices inflicted on them. The great danger now is that these passions will lead to vigilantism and anarchy.
Sensible transitional justice measures can both constrain the urge for revenge and channel it in a productive direction. The key questions will be which approaches should be used, and whether trials or truth commissions are better suited to the purpose. Who should decide these questions? The U.S.? The new leaders of a democratic Iraq? The U.N.?
Although the State Department has convened a working group to examine transitional justice in Iraq, the topic has not yet burst into public view. Once debate begins, it will quickly polarize.
Some people will advocate that a "thick line" be drawn between past and present. That catchphrase comes from Tadeusz Mazowiecki, the prime minister of Poland's first democratic government after communist rule, who argued that transitional justice measures can only stir up resentments and distract from the task of building a liberal democracy. Critics also assert that transitional justice is morally dubious; that one cannot punish people for behavior that was legal at the time without also undermining the rule of law and other important political and moral values. Illiberal means cannot achieve liberal ends.
The problem with drawing a curtain on the past is that it stifles, without satisfying, the public's sense of justice, and does nothing about individuals who prospered under the old regime and retain resources to undermine the new. Countries like Poland, the Czech Republic and Hungary ultimately sought formally to confront the past -- with laws opening secret personnel files, for instance; allowing prosecution in some cases; or barring individuals associated with the old regime from public office.
South Africa, on the other hand, chose to rely most heavily on the truth commission, which granted amnesty to officials and collaborators of the apartheid regime in return for testimony about their activities and a sincere apology. Chile also used truth commissions, and in addition paid reparations to victims of Gen. Augusto Pinochet's regime. In Argentina, officials of the military junta were tried and punished, and reparations were paid to their victims.
Iraqis will likely find themselves confronting similar choices. Some argue that Iraq will be in the same position Germany was in after WWII, when strict transitional justice measures were imposed by the allies, and continued by the Germans themselves. Optimists might prefer to believe that Iraq will be in the position of postwar France, whose public, once liberated, could undertake transitional measures on their own rather than having them imposed by a foreign power.
Regardless of which model fits postwar Iraq, the experiences of all states that have undergone democratic transitions hold important lessons:
-- Avoid extremes in favor of a mixed approach. Transitional justice takes many forms, and serves many purposes. The experience of the democratic transitions in Eastern Europe and Latin America suggests that a mix of transitional-justice tools and approaches is best. The new regimes that become stable liberal democracies tend to prosecute and eliminate the top layer of power-holders while avoiding savage inquisitions into complicity with the past. They purge the upper levels of the bureaucracy without crippling the state's ability to function; and satisfy the popular demand for justice through sensible, tailored schemes of compensation. The thick line, although seemingly enlightened, is an extreme solution that postpones, and worsens, the inevitable reckoning with the past.
-- Opponents of transitional measures portray trials and legalized purges as illiberal, because they impose punishments or civil disabilities on conduct that was lawful, even compulsory, when it occurred. But respecting the due process rights of old-regime defendants is only one consideration in a complex, pragmatic calculus. The priority is to consolidate a democracy that will prove stable against later bids for power by non-democrats, especially the old-regime's lingering adherents. Rights of protection against retroactive punishment should be respected only to the extent that respecting them helps to legitimate and stabilize the new regime.
-- Transitional justice is as imperfect as ordinary justice, and every bit as full of compromises. We know from historical experience with transitional-justice measures that some bad people will escape punishment, and some good people will be unfairly treated; that some people who suffered under Saddam's regime will be paid reparations and others will not. These failures will be highlighted by the media and exaggerated by critics of U.S. policy, but all justice systems commit errors. We did not shut down our own courts after the trials of O.J. Simpson, or Sacco and Vanzetti.
-- International participation is important but must be limited. Transitional justice will work best if it is desired and carried out by Iraqis. The U.S. and its allies must ensure that the process is not hijacked by undemocratic elements and lingering Baath party loyalists. In addition, while broad international participation might confer legitimacy on trials of leaders, conflicting international agendas can also produce a quagmire in which the needs of the Iraqis are lost. International tribunals staffed by judges from countries that opposed the war would be inadvisable.
The urge for vengeance undoubtedly is bubbling to the surface. By dramatizing the end of the old regime and generating hope for the future, transitional justice measures will provide an emotionally and morally satisfying foundation for the more abstract business of constructing democratic institutions.
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Messrs. Posner and Vermeule are professors at the University of Chicago Law School.