Iraqis May Be Tried for War Crimes; the Question is How and by Whom?

Proposals for the type of court that should try alleged Iraqi war criminals are pouring in from across the spectrum, including The Simon Wiesenthal Center’s call last week for a Nuremberg-style tribunal to be held in Iraq.

But observers say every proposal has certain drawbacks: None is free of potential politicization and may suffer from a lack credibility if trials are carried out by Americans or Iraqis alone.

Crimes to be considered are broken into at least two categories — those allegedly committed by Saddam Hussein’s regime against its own citizens or Iran during the past 25 years and those allegedly perpetrated against invading U.S. forces over the past month.

The Bush administration appears to be pushing for an Iraqi-led court in Iraq for the former type of crimes and a U.S.-run military tribunal for the latter.

Alleged Iraqi crimes during the 1991 Persian Gulf War also may be considered by the latter court, while the British may want to conduct their own trial for crimes against their troops.

“For past abuses, past atrocities, it’s our view that there should be accountability,” Pierre-Richard Prosper, the U.S. ambassador for war crimes, said recently. “We will work with Iraqi people to create an Iraqi-led process that will bring justice for the years of abuses that have occurred.”

Iraqi judges, though, were so enmeshed in — and tainted by — Saddam’s regime that many question if verdicts they present against former comrades would be viewed as credible.

Likewise, the knock against Iraqi exiles, many observers say, is the perception that they are so consumed with hatred for Saddam’s regime that they can’t be impartial.

International legal experts and non-governmental organizations seem to prefer an ad-hoc, U.N.-affiliated court along the lines of ongoing war-crimes tribunals for Rwanda and the former Yugoslavia, or a “mixed” model like those recently established in Sierra Leone and currently under creation in Cambodia. Those in-country courts combine foreign and local legal experts and synthesize international and national laws.

The new International Criminal Court is virtually ruled out: Its jurisdiction begins only with acts committed after July 1, 2002 — meaning that many of the regime’s alleged crimes could not be considered — and neither the United States nor Iraq is a signatory.

The ICC could launch an investigation at the behest of the U.N. Security Council, but Washington presumably would veto any such effort.

Then there’s the Nuremberg proposal.

In Nuremberg, a military tribunal that started six months after the end of World War II invited the participation of the Allied countries that fought on the front lines — the Americans, British, French and Soviets, says Rabbi Marvin Hier, founder and dean of the Wiesenthal Center.

This time around, the Americans and British — and perhaps the Australians, who contributed a handful of troops to the Iraq war — should reserve the right to mete out justice in Iraq, Hier suggested in a recent letter to U.S. Secretary of Defense Donald Rumsfeld.

“The only reason we have a German democracy today is that the real seeds were planted at Nuremberg,” Hier told JTA.

“It was at Nuremberg that Germans themselves could see how evil the system was,” he said. “The people in Iraq are not going to follow the proceedings as closely if it’s in London, Washington or The Hague. We need to re-educate them, and the best way to do that is if the trial is in their own backyard, where they’ll follow it in their own language and it will dominate the news each and every day.”

Anything in the hands of the United Nations will be subject to bureaucratic delays and overt politicization, Hier said.

For example, the 18 trials conducted so far in the U.N. tribunal for the former Yugoslavia have averaged 18 months apiece and cost more than $1 billion in all, analysts say.

Moreover, it is the role of the 15-member Security Council to recommend which judges ought to serve on a U.N. tribunal. They must be approved by the 191-member General Assembly, where there is enormous hostility toward the United States and sympathy for Iraq.

Just as the United States and Britain skirted the Security Council to launch the war against Iraq, they also should avoid the U.N. judicial process, Hier said.

“There’s no perfect solution,” he said. “If we throw it back to the U.N., it will not be a trial about the war criminals but about whether the war is legitimate.

“Look at the sentiment of French or German public opinion: If you have a French or German judge, you’d be asking for a lot for them to rise above the political jockeying that is going on,” he continued.

“The danger is that you’ll have a terribly politicized trial where the judges might really be Putin, Chirac and Schroeder,” he said, referring to the leaders of Russia, France and Germany, respectively.

The most common criticism of Nuremberg, and of the Wiesenthal Center’s proposal, is what became known as “victors’ justice” — the credibility issue that arises when winners render verdicts against the losers.

“If you have fair and impartial tribunals in the country concerned, then that’s the ideal,” said Felice Gaer, a human-rights expert with the American Jewish Committee.

“But the Wiesenthal Center is departing from 60 years of analysis and jurisprudence since Nuremberg that have called for an impartial, independent international tribunal that can offer credibility when ad-hoc tribunals sometimes don’t,” she said. “The aim here is to avoid the accusation of ‘victors’ justice.’ “

Hearings on as crucial a topic as genocide and crimes against humanity must rise above the taint of partiality, critics say.

“The U.S. is already fighting against international opinion,” said Charles Forrest, chief executive officer of Indict, a London-based Iraqi exile group that for years has been compiling evidence of war crimes by Saddam’s regime. “To go ahead and try to form a Nuremberg-style trial may cause total hysteria among international legal experts.”

Even more important, critics say, a trial must be credible in the eyes of a skeptical world, especially among Iraqis and the general Arab and Muslim worlds.

“If you don’t care about the international credibility of this court, then you can use the Nuremberg model,” said John Washburn, a leading U.S. advocate of the ICC who prefers a U.N. tribunal for Iraq.

“My assumption is if you’re going to have a satisfactory trial, you’d want the world to say, ‘Yeah, they tried them and arrived at a fair verdict, and the punishment imposed was arrived at by a fair process,’ ” he said.

Aside from politicization and cost, Washington may have other reasons for wanting to avoid the U.N. route: Officials may not want the court to probe the extent of U.S. support for Saddam over the years, or the extent that the United States helped arm his regime.

Others dismissed the concern.

“If you’re concerned about the issue of U.S. complicity being raised, that’s going to happen regardless of what court system handles this,” Washburn said. “If you’ve got a fair court where a defense counsel is allowed to operate as they should and have the right to make their case fairly, then they’re going to get into that, whether it’s a Nuremburg-style or ad-hoc tribunal.”

Another reason may be the fact that the United Nations prohibits the death penalty, while both U.S. officials and Iraqi exiles have indicated that they want to have it as an option, Forrest said.

Iraqi figures would like to handle the prosecution on their own.

Forrest said he would endorse a combined prosecution led by some Iraqi exiles, some Iraqis from within the country and justices from elsewhere in the Arab world.

“The Iraqis are adamant. They are proud of their legal tradition and think it would be totally inappropriate to send suspects abroad to be tried by foreigners,” Forrest said.

For those who rule out Iraqi participation — or suspect that the United States will handpick which Iraqis can participate — some compromise is necessary, he said.

“The Iraqis have to see that justice is being done, and the best way for that to happen is if it’s done in Iraq, by Iraqis, under Iraqi law,” he said. “At the same time, this will create a foundation for the rule of law in Iraq.”

Regardless of the format, court proceedings should start soon, said the Wiesenthal Center’s Hier.

If the trial is delayed too long or drags on, “it’s out of sight, out of mind,” he said. “By the time they render the verdict, the world will have forgotten who Saddam is. The great lesson of Nuremberg was that it was swift justice.”