(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.