IRAQ: Prosecuting War Criminals

February 16, 2005

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What’s the U.S. plan for trying Saddam Hussein and other top leaders?

Bush administration officials announced April 7th a two-part plan for prosecuting the Iraqi president and senior members of his regime. Officials said Iraqis who have committed war crimes in the current war will be tried in U.S.-run courts. For crimes against the Iraqi people committed before the current war, the United States will help returning Iraqi exiles and citizens to establish an Iraqi-run process.

What war crimes would the United States prosecute?

U.S. officials have already begun to document Iraqi fighters’ violations of the international rules of war. Iraqi soldiers could be prosecuted for mistreating, torturing or executing American prisoners of war (POWs), posing as civilians, using non-combatants as human shields, and faking surrenders. The United States may also attempt to prosecute Iraqi officials for war crimes committed against U.S. forces in the 1991 Gulf War, officials said.

What crimes would an Iraqi court prosecute?

It has not been decided. But they would likely include so-called "crimes against humanity" and other alleged violations of international humanitarian law. Crimes could include:

  • Use of chemical weapons during the Iran-Iraq war in the 1980s.
  • Repeated use of chemical weapons by Iraq against the Kurds.
  • Ethnic cleansing of Iraq’s southern Shiites.
  • Summary executions of thousands of political opponents.
  • Torture of political detainees.
  • War crimes committed during and following the invasion of Kuwait in 1990 and 1991.

Will the United Nations be involved?

Bush administration officials said they don’t envision a U.N. role in the prosecution of war crimes committed in the recent conflict. They specifically dismissed the idea of a special U.N.-operated court, like the ones established to adjudicate crimes in Rwanda and the former Yugoslavia. "We are of a view that an international tribunal" to try crimes that occurred in the current war "is not necessary," said Pierre-Richard Prosper, the U.S. ambassador for war crimes issues.

Administration officials haven’t ruled out U.N. involvement in the Iraqi-led courts. But it is apparently their intention that Iraqis, with the help from the United States and other nations, will conduct the trials—not international jurists working under U.N. authority. "We are prepared to assist in any way we can by providing technical, logistical, human, and financial assistance," Prosper said. "We also believe that the members of the international community should also step forward and be prepared to assist."

Do other countries want the U.N. to be more involved?

Yes. But the issue of postwar justice is part of a larger debate over who should lead Iraq once the conflict ends. In that debate, the United States has indicated that it wants to dictate the form and membership of what would effectively be an interim government and limit the U.N. role to providing humanitarian assistance. Governments opposed to the war—such as France, Germany, Russia, and China—have insisted that the United Nations have a hand in establishing the postwar government. Britain is in the middle of the two sides. Experts say this unresolved debate will influence decisions affecting war crimes courts.

Why is the Bush administration against U.N. involvement?

One reason may be that U.S. intelligence officials want direct access to prisoners, which they would surrender once suspects were in U.N. hands. Another reason may be that U.N. tribunals do not impose the death penalty.

What kind of information would intelligence agents seek?

They would quiz the prisoners about their connections to terrorism and weapons of mass destruction, says Ruth Wedgwood, a Council fellow and an adviser to Secretary of Defense Donald Rumsfeld on international law issues in the war on terrorism. U.S. officials could conceivably offer plea bargains to suspects, she adds, granting reduced sentences and other benefits in exchange for information.

Does the United States have the right to try Iraqi officials?

International lawyers say yes, for violations of the rules of war that took place during the current conflict.

What body of law governs such trials?

The 1949 Geneva Conventions, which form the backbone of international humanitarian law. They indicate that that a nation detaining prisoners of war can and should try them for violations of the rules of war, experts say. Trials are to take place in a military court offering "the essential guarantees of independence and impartiality as generally recognized," according to Article 84 of the third convention. U.S. trials of Iraqis will be the first application of this rule since World War II, says international lawyer Robert Goldman.

Britain will have the same right to try Iraqis for war crimes against its soldiers in a British court, experts said. And U.S. officials have said that Kuwaitis may want to try Iraqis for Saddam’s 1990 invasion.

Will the trials take place in U.S. military courts?

U.S. officials haven’t precisely described how they will run the trials. W. Hays Parks, the special assistant to the U.S. Army for law of war matters, said Monday there are three options: courts martial, military commissions, or federal district court. International law experts, however, said they expect the majority of war crimes trials to be in some kind of military setting, as dictated by the Geneva Conventions. It has also not been decided if the trials will be open or secret.

How does the U.S. war crimes process compare to the Nuremberg trials?

The victorious Allied powers set up a war crimes trial at Nuremberg to hold members of the Nazi regime personally accountable for war crimes, crimes against peace, and crimes against humanity. The United States, the Soviet Union, the United Kingdom, and France formed a group called the International Military Tribunal to try 22 accused officials from November 1945 to October 1946. A team of U.S. judges later presided over 12 additional trials. The Geneva Conventions were not yet in effect at that time.

Who would stand trial for crimes in a U.S. military court?

That hasn’t been decided. Those who have broken the rules of war are in many cases low-level operatives, like individual fighters from the Fedayeen Saddam militia and Republican Guard forces. But international lawyers say top leaders, including Saddam, could be also held accountable for the general conduct of their troops.

Can U.S.-led war crimes trials impose the death penalty?

Yes. The death penalty is permitted by the Geneva Conventions’ rules of war, according to international law experts.

How will the U.S. trials be received internationally?

Though they are legal, they may still be seen as "victor’s justice" by many, international lawyers warn. For that reason, some experts encourage more international involvement.

What’s the extent of U.S. involvement in the Iraqi-led justice process?

The United States has started to train 35 Iraqi expatriates as judges and has begun working with them to develop a plan for post-conflict justice in Iraq, U.S. officials said. It also plans to involve resident Iraqis, and will provide funding and training for the postwar Iraqi justice system. Many Iraqis jurists who served in Saddam’s government will likely be removed.

How are U.S. plans for an Iraqi court being received?

Some international lawyers and human rights groups said Monday they were disturbed by the U.S. plans. American influence over the selection of Iraqi judges may make the court look like a tool of the United States. "It runs the risk of becoming a marionette court for the United States," said Richard Dicker, international-justice director at Human Rights Watch.

Anne-Marie Slaughter, dean of Princeton University’s Woodrow Wilson School of International and Public Affairs and president of the American Society of International Law, says that "the U.S. is making a serious mistake if it does not invite the U.N. to organize the tribunal. A court that is created by Iraqis under U.S. command is not going to wash. No matter how strong the case is, the question is: who is going to believe it?"

Others, such as Oscar Schachter, a professor emeritus of international law at Columbia University, say they favor an Iraqi court in principle because it gives Iraqis more control over their justice process. This appears to be in line with the Bush administration’s thinking. U.S. officials have criticized the decade-old U.N. war crimes tribunals for Rwanda and Yugoslavia as too expensive, inefficient, and far removed from the lands where the abuses took place.

How would lower-level Iraqi officials be dealt with?

We don’t know. Some options would be: granting them amnesty through a truth and reconciliation process, preventing them from serving in the new government, or prosecuting and punishing them.

Could Iraqi officials be tried in front of the new International Criminal Court?

U.S. officials have ruled out the possibility because neither the United States nor Iraq has ratified the agreement creating the court. In addition, the court is authorized to consider only crimes committed since July 2002, which would leave out many of the worst abuses of Saddam’s regime.

What other U.N. options are there?

Some international lawyers support the idea of setting up a special ad hoc tribunal like the ones established to try war criminals in the former Yugoslavia and Rwanda. More recently, the United Nations has sponsored "hybrid" war crimes courts in East Timor and Sierra Leone, where international jurists serve together with local lawyers to try accused war criminals.

In the U.S. plan, what would take place first: the Iraqi-led trial or the U.S.-led trial?

We don’t know. It could take a while for the Iraqi-led court to get going and gather evidence, so some international lawyers think the U.S. trials would take place first.

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