The United States is reportedly planning to create a special tribunal of Iraqi judges to try Saddam Hussein and other former senior Iraqi officials for crimes against humanity. The idea, which hinges on capturing the culprits alive, has been floated by anonymous sources in the U.S. media. But as RFE/RL reports, it's already sparked a heated debate in Washington.
Washington, 5 August 2003 (RFE/RL) -- There is broad international consensus that deposed Iraqi leader Saddam Hussein and former top Iraqi officials should face some kind of trial for crimes against humanity if and when they are captured alive.
According to a recent report in "The New York Times," U.S. officials believe the best way to go about doing that is through an ad hoc tribunal of Iraqi judges to be chosen from several jurists who were dismissed or exiled under the former regime.
Among other crimes, Hussein would likely stand accused of genocide against Kurds in the north and the marsh Arabs of southern Iraq.
Reportedly, U.S. officials believe such trials would aid in Iraq's post-Hussein political transition by allowing Iraqis to participate in and witness firsthand the meting out of justice against the former regime. U.S. officials reportedly believe that holding the trials outside the country would diminish their importance to ordinary Iraqis.
Diane Orentlicher, who recently visited Baghdad to discuss the issue with Iraqis and the UN, teaches international law at Washington's American University.
"The most important audience for trials for past atrocities is the country that has endured them," she says. "That way, the public can see that justice is being done in their name. [They] can follow the proceedings. They can provide testimony. And if they participate in the process itself, they can help restore their own legal system precisely by participating in rebuilding justice."
Such trials would be a departure from the war crimes trials conducted by the International Criminal Tribunal for the former Yugoslavia. That court is trying former officials such as Yugoslav ex-President Slobodan Milosevic in The Hague, far from the gaze of their countrymen.
The reported American idea for Iraq, which has sparked a debate in Washington and elsewhere, has both pros and cons, say analysts interviewed by RFE/RL. A key problem, according to Orentlicher, has to do with image and legitimacy.
"The intention of the United States government, I'm sure, is exactly as it should be -- they support claims of justice by Iraqi citizens. But there will, I think, be a risk that a process that seems to be expressing the will of the United States occupying power may not appear as impartial as we would hope," Orentlicher says.
The United Nations also has reservations. Early last July, the UN convened a conference in Baghdad to discuss the best ways to try Hussein and his accomplices.
Orentlicher was one of a few foreign experts invited to attend the conference. She says participants discussed several options, including an international criminal tribunal such as the one for former Yugoslavia; a hybrid court comprising Iraqis as well as jurists from other Arab countries; and finally, just waiting for Iraq's judicial system to be rebuilt and take on the job itself:
"The point of the meeting was really to explore, or to begin to provide a forum for exploring options, rather than to make specific recommendations. If there was any common consensus it was that there is a need for fairly wide-ranging deliberations among Iraqis before a decision about how to proceed can be made," Orentlicher says.
Sergio Vieira de Mello, the UN's special representative in Iraq, has emphasized this point. But in a recent briefing to the UN Security Council, he also said he believed it would be worth considering setting up a tribunal composed of Iraqis as well as international experts.
Peter Galbraith, however, would like even more UN involvement. A former U.S. ambassador to Croatia, Galbraith has played a key role in the documenting of Hussein's use of chemical weapons against Iraqi Kurds. He tells RFE/RL that there is abundant evidence available to try Hussein and other senior Iraqi officials for war crimes, and that given the magnitude of the crimes, such a trial should take place on an international stage.
"In the case of the very senior leadership of the Ba'ath regime, and in particular in the case of Saddam Hussein, where the crimes are genocide, crimes against humanity, waging aggressive war, torture, use of chemical weapons, I think that this is a case that ought to be tried before a UN-mandated international tribunal," Galbraith says.
Galbraith, who is now a professor at the National Defense University in Washington, also questions the ability of American officials to select worthy Iraqi jurists: "The problem with the Iraqi process is that the Iraqi judiciary is in shambles. All the judges who have served for the last 35 years have basically administered Nazi-style justice. They have administered injustice. And bringing in exiles who haven't been in the country is not a very good alternative solution."
While few would debate that point, the idea of holding trials outside Iraq under foreign judges appears to be the minority view, both among U.S. officials and experts. Most suggest that Iraqis themselves should have a role in bringing the former regime to justice.
One question, however, is timing.
U.S. officials quoted in the media have suggested that a special court to try Hussein or other senior leaders could be set up quickly, without having to wait for the time-consuming rebuilding of Iraq's judicial system.
But such a solution could again create problems of legitimacy, says Ted Galen Carpenter, an analyst with the Cato Institute.
"This is a process that should wait until there is an Iraqi government in place, elected by the Iraqi people. That way any tribunal will have underlying legitimacy. If it's appointed by the United States or if it's appointed by appointees of the United States, there will be questions about its legitimacy," Galen Carpenter says. "This is something that can wait. There's no need to rush to justice on this and put these people on trial in a matter of weeks or months."
With the debate raging, the U.S. government has yet to make any clear official pronouncements on the issue. Analysts say that could be an indication that Washington is still considering all its options on a sensitive issue where compromise could be likely.