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Iraq: How Will Atrocities Be Prosecuted?

One of the controversies in postwar Iraq will be how to deal with those accused of committing atrocities under Saddam Hussein's regime. The U.S. has stated its intention to establish "Iraqi-led" trials to deal with these types of crimes. RFE/RL takes a look at the pros and cons of that option and other possibilities.

Prague, 14 April 2003 (RFE/RL) -- The U.S. has made it clear it does not intend to turn over to an international tribunal those Iraqis -- including Saddam Hussein -- suspected of committing atrocities.

Pierre-Richard Prosper, the U.S. ambassador-at-large for war-crimes issues, said last week that an "Iraqi-led process," not a UN-led tribunal, would prosecute war crimes. He said Washington would help with "technical, logistical, human, and financial assistance."

The U.S. offers several arguments in favor of such Iraqi-led trials: Iraqis, who have endured Saddam's worst crimes, would get their own chance to the hold the regime to account. Such trials would also help to establish a functioning legal system in Iraq.

Moreover, significant UN involvement would probably be unacceptable to the U.S. and to Iraqi opposition leaders, who accuse the international community of having neglected their cause. But the decision to favor a local process has generated controversy.

Tom Malinowski, the Washington advocacy director for Human Rights Watch, said his organization does not favor turning the judicial process over to an Iraqi government that is hand-picked by the U.S. He points to several potential problems, and said he favors a UN-led tribunal like the one set up in The Hague to prosecute Yugoslav war crimes or a mixed court featuring local and international elements.

"[The tribunal] could look like the tribunal for Yugoslavia, in other words a stand-alone international tribunal set-up by the United Nations. Or it could be a so-called 'mixed' tribunal like the court that is trying war crimes now in the African country of Sierra Leone, in other words a tribunal that has some international judges and some Iraqi judges. That would be a way of getting the Iraqi people some ownership of the process, while maintaining the international character of the court," Malinowski said.

Among the difficulties, Malinowski said he believes it would be difficult for a new Iraqi government to find enough qualified jurists and prosecutors. He said the Iraqi judiciary system has been "compromised" by years of totalitarian rule.

Moreover, he said Iraq's ethnic and religious composition would complicate the work of local tribunals. Human Rights Watch says a judicial panel composed of victims of the Ba'ath regime, such as Kurds or Shi'ites for example, could not be considered impartial.

Malinowski also said the Iraqi exile community should not be expected to shoulder the burden of handling a high volume of politically charged prosecutions. Nor would it be seen necessarily as legitimate by the people of Iraq. "The Iraqi exile community, while it contains many, many good and decent people, has not yet established any kind of democratic legitimacy inside of Iraqi," he said. "It's very important that whatever court tries Saddam Hussein and his government be fully legitimate and credible."

These arguments are refuted by Charles Forest, the head of "Indict," a London-based organization working to collect evidence to help Iraqi prosecutors. The campaign received a financial grant through the Iraq Liberation Act, passed by the U.S. Congress in 1998.

Forest said he believes Human Rights Watch is being "unrealistic" in pushing for an international tribunal. He said such tribunals traditionally are expensive and slow, and take time to get organized. "I think that it's very important that this be done relatively quickly and that it focuses on providing the Iraqi people with justice but also providing them with a basis for the development of the rule of law in Iraq. And if we have a tribunal set up in some other country, with foreign judges, it's really not going to address these needs of Iraq and the Iraqi people," Forest said.

Forest said he disagrees with Malinowski that there are not enough impartial judges and prosecutors in Iraq. He said he believes there are many possible choices for judges to serve on these courts. "But there are judges and lawyers inside Iraq who are out of the system. They have been barred [from] holding office because they don't support the regime. There are also judges and lawyers in the Kurdish region in the north, which have been relatively independent for the past 12 years. And then we may look for people who aren't necessarily judges and lawyers, you know, lay judges, distinguish people who can sit on these courts," he said.

Forest said foreign assistance and monitoring could help ensure that the trials are fair and impartial. "These tribunals will be watched very closely by experts and others from outside," he said. "I think it'll be very important that the United States and the international community provide the court with technical assistance and ensure that defense and prosecution council are up to international standards. It's not going to be easy but I think it ultimately will be much more effective than setting up another international court."

The list of crimes that such courts, whether they be local or international, is long, and include war crimes, crimes against humanity, and genocide.

Bakhtiar Amin is an Iraqi exile leader and the executive director of the International Alliance for Justice. His group has been trying for years without success to convince the international community to establish an ad hoc tribunal Iraq. He said ultimately it's not important whether the tribunal is led locally or internationally, saying that any type of justice is good to have.

"Whether it would be an ad hoc-based tribunal for these people, or a purely Iraqi, or a mixture, I don't know. We have worked for an ad hoc tribunal since the [19]80s up to now. The international community didn't support us. The [UN] Security Council was very divided on Iraq," Amin said.

It's not clear yet when the first courts will be operating.