(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
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.