Seeking counsel on post-war Iraq

As battle-scarred Iraq begins rebuilding itself, Khawar Qureshi looks at the legal challenges it faces over sanctions and bringing people to trial

Two months after the intervention began, the Iraqi regime has been removed and the international community will have to wrestle with several emerging legal issues.

First, was the intervention legal? It is likely that the UN Security Council will soon have to grapple with the new reality in Iraq, namely a civilian interim administration underpinned by the coalition.

The security council might also have to determine whether sanctions imposed against Iraq should now be lifted.

Such a resolution would declare that the situation in Iraq no longer posed a threat to international peace and security.

If it did this, it would expressly recognise that the threat which had hitherto existed had been eliminated by the coalition intervention, and thus arguably effectively approve the action.

Are contracts which were entered into by Saddam's regime now null and void? Most of these agreements will have contained force majeure clauses, and parties seeking to disavow their obligations might well seek to invoke such clauses.

However, a more interesting question is whether the interim administration can terminate agreements which were entered into with, for example, French and Russian oil companies.

The normal rule that applies when a government changes in a state - but the state's boundaries remain the same - is that the successor regime is bound by the obligations entered into by its predecessor.

In the case of Iraq, it is certainly possible that the interim administration may seek to terminate some agreements on the basis that they violated the spirit or letter of the security council-imposed sanctions regime.

What happens to the leading figures in Saddam's regime? Thus far, more than a dozen senior figures have been taken into custody.

Depending on what these individuals are accused of, there are three possible processes that could be deployed against them:

- Trial in Iraqi courts before Iraqi judges.

This could take place for torture, corruption, murder, war crimes and similar matters.

It is likely that Iraqi law provides criminal jurisdiction in respect of such offences.

However, it is possible that Iraqi law may need to be amended and/or supplemented to ensure that due process can be achieved.

This route has the advantage of allowing the 'victims' of the alleged crimes - the people of Iraq - to participate in the process of justice in a proximate manner.

A possible disadvantage is that a fair trial may not be possible for the accused persons in such an emotionally charged environment.

- Trial before an ad hoc criminal tribunal.

Such a tribunal could be created by the interim administration with the support of coalition forces, as has been recently done with the Sierre Leone tribunal.

Or, albeit less likely, it could be established by a security council resolution (as were the war crimes tribunals for Yugoslavia and Rwanda).

The tribunal could be staffed by personnel from outside Iraq, and could even be situated in another country.

However, such a tribunal is likely to be seen to be more credible if it is situated in Iraq and has a significant number of Iraqi personnel.

- Trial in US courts.

The US has an extensive criminal jurisdiction which enables its courts to exercise criminal jurisdiction over certain crimes which take place outside its boundaries.

While this is a theoretical possibility (as is the trial of suspects before a US military tribunal), it may be seen to be more prudent to avoid this route, so as to avoid accusations of unfairness and 'victor's justice'.

A post-Saddam Iraq is likely to generate a hot-bed of legal issues.

The role of law in the aftermath of conflict is pivotal for the creation of long-term peace and stability.

Khawar Qureshi is a barrister and Treasury Counsel at Serle Court in London