(This is an
updated version of WebMemo
#266, originally published on April 22,
2003.)
Saddam Hussein has been captured. How will he, and other members
of his regime, be brought to justice?
The United States
could defer to a newly formed Iraqi court system, or lead the way
through Coalition trials. These, and all options -- except for the
International Criminal Court -- should be considered. Though, in
the end, the Iraqi judicial system should be given preference once
it is capable of handling the matter in a fair and just manner.
History offers a
lesson.
After World War
II, the Allies used three different judicial mechanisms:
- Nuremberg
trials. 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.
The Nuremberg trials began in October 1945 and lasted until 1947
trying various people.
- Independent
Military Tribunals. Each of the allied powers also 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.
- Renewed German
and Japanese Courts. 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 Saddam, and
other high-ranking member of his regime. Indeed, a combination of
all three options is the most likely result, as thousands more
as-yet-unidentified Iraqis will be tried for their role in the
brutal Saddam state.
Where possible,
the coalition forces should defer to a renewed Iraqi judicial
system. However a hasty trial is not necessary, and it would be
best to first insure that the newly-refurbished Iraqi court system
can function in a fair and transparent manner that will engender
the confidence of the world. History reminds us that it look a lot
longer than six months to capture and try all the Nazi and Japanese
war criminals.
For military
officers, a coalition or U.S. tribunal is especially appropriate
for any high-level officials who have tortured or killed coalition
POWs, directed - or engaged in - war crimes (such as false
surrenders) that led to coalition deaths.
ICC Not an
Option
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
Rwanda) 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. While the international
community has, paradoxically, urged a swifter return of Iraqi
sovereignty they now, paradoxically, caution against too rapid a
return of the Iraqi judicial system.
These activists
have also 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.