April 22, 2003 | WebMemo on Iraq
(Saddam has been captured. This WebMemo was updated on December 15, 2003.)
Baghdad has fallen. The war is nearly over now and the time will soon come to assess the actions of Iraq's former leaders. Coalition forces reportedly carry a "deck of cards" with the pictures of 55 Iraqi leaders of the regime and orders to pursue, capture, or kill them. Several of these leaders have already surrendered or been captured. Thousands more as-yet-unidentified Iraqis will doubtless also be pursued for their role in the brutal Saddam state. Once captured, how should they be brought to justice? History offers a lesson.
After World War II, the Allies used three different judicial mechanisms. First, and most prominently, the war's victors convened the Nuremberg trials where the leaders of the Nazi war machine were tried before a tribunal of judges drawn from the major allied powers. The allies jointly created, staffed and administered these tribunals and they operated based upon principles of international law, independent of the laws of the countries who fought the war.
Meanwhile, each of the allied powers convened its own independent military tribunals where other leaders - often, military commanders such as Japan's General Tomoyuki Yamashita -- were tried. In the end, hundreds of foreign nationals were tried (for violations of the laws of war) in military courts very much like the military tribunals presently authorized for the Guantanamo detainees.
Finally, once civil government was restored and judicial systems renewed many of the less significant offenders were tried in the renewed German and Japanese courts. Several thousand such trials were held as the German and Japanese populace regained their independence and sovereignty from their ruling dictators.
All three of these options are reasonable possibilities for dealing with Iraq. Indeed, a combination of all three options is the most likely result. Where possible, the coalition forces should defer to a renewed Iraqi judicial system - but not at the expense of delay or allowing those guilty of war crimes to escape punishment. A coalition or U.S. tribunal is especially appropriate for any high-level officials who have tortured or killed coalition POWs or engaged in war crimes (such as false surrenders) that led to coalition deaths.
However, there is one option that should not be adopted - reliance on the mechanism of the United Nations. The permanent International Criminal Court in The Hague was created as part of a treaty the United States has, rightly, chosen not to sign - it lacks the authority to conduct Iraqi war crimes trials. And any temporary court for Iraq (similar to ones already in place of Kosovo and Rawanda) would have to be approved by the Security Council - the same Council that declined, in the first instance, to assist in the end of the Iraqi dictatorship - a poor option indeed, that would needlessly mire the prosecution of war crimes in international politics.
Some in the so-called "international human rights" community have called for UN involvement in the war crimes trial. They have complained that by excluding the UN coalition forces are attempting to limit the scope of the proposed tribunals - that without a UN trial nobody will examine American conduct in Iraq.
And that, of course, proves the absurdity of the "international option." Any organization calling for examination of American conduct in Iraq has lost all credibility, both with the US government and the American people. The war crimes atrocities - the false flag surrenders, the murder of POWs and the unlawful use of hospitals and mosques as defense points (not to mention the pre-war torture and murder of millions) were Iraqi crimes, not American. The international fixation on alleged American wrongdoing is one more reason why the international courts are an inappropriate forum for judging the Iraqi regime.
Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University.