- The Washington Times - Wednesday, March 26, 2003

Saddam Hussein's regime is crumbling and, assuming he survives the fighting, the coalition will soon have to decide his fate, as well as that of the Ba'ath Party leadership. Ordinary Iraqis will probably feel an understandable urge to tear these men to pieces in the streets the fate of Queen Marie Antoinette's luckless favorite, the princesse de Lamballe, during the French Revolution. The people of Baghdad, however, will surely behave better than Parisians. Saddam and his lieutenants will have to be tried in a court of law, and there are four options: a coalition military court, established on the Nuremberg model; an ad hoc, U.N.-sponsored court, like those established for Yugoslavia and Rwanda; the recently inaugurated International Criminal Court (ICC) in The Hague; and an Iraqi national court. Although international activists already have demanded some form of multinational court, only an Iraqi national court is likely to achieve justice and contribute to Iraqi democratization.
Whatever crimes Saddam and his regime have perpetrated against others, his principal offenses have been against the Iraqi people and it is they who should judge and punish this man and his collaborators. An Iraqi court could be established under the authority of a provisional government, even if Iraq remains under military occupation, and would, of course, have to meet minimum standards of fairness and process. It would also have to be representative of Iraq's constituent communities Kurds, Sunnis and Shiites. Whatever drawbacks a national court would have, and the coalition would have to provide both guidance and technical assistance to ensure against a degeneration into "revolutionary" justice, the problems with any form of international court would be far worse.
Of the international options, a military tribunal, similar to the Nuremberg International Military Tribunal, will be the choice of many. This model, however, presents two significant problems. First, although the United States and its allies can (and should) prosecute individual Iraqis for offenses (such as the alleged murder of American POWs) against coalition forces, their right to punish prewar offenses against the Iraqi people is far less clear. The Nuremberg tribunal itself concentrated on wartime atrocities. Second, a coalition tribunal established especially to try the Iraqi leadership would inevitably, like the Nuremberg tribunal itself, be open to the charge of "victor's justice."
The second option, a U.N.-sponsored ad hoc court, is also highly problematic. First and foremost, such a court would require Security Council approval, necessitating the cooperation of a notably uncooperative, veto-wielding France. In addition, the United Nation's previous courts, although well intentioned, have a distinctly colonial air about them. The Yugoslav tribunal, for instance, does not include a single judge from the states of the former Yugoslavia, over which it exercises authority. Since the charge of imperialism already has been laid against the coalition, every effort should be made to avoid its substantiation.
The third option, referral of the matter to the new ICC, is worse still. Although the ICC can take Security Council referrals, this also requires the agreement of France, Russia and China. All three fiercely opposed military action against Iraq, and may not be anxious to have a full public accounting of his atrocities. In addition, the United States has, for good and sufficient reasons, definitively rejected the ICC as an institution. Among other things, that court lacks meaningful safeguards against politically inspired prosecutions, and its founding treaty, the 1998 Rome Statute, claims jurisdiction over the nationals of non-party states like the United States.
This is a plain violation of international law, and the error should not be encouraged by utilizing the ICC simply because it might be convenient in a particular case. Finally, as a practical matter, Saddam's worst crimes would be beyond the ICC's reach because its jurisdiction only covers offenses committed after July 1, 2002. This would exclude, among other things, the dictator's use of chemical weapons against Iraq's Kurdish citizens in the late 1980s.
Overall, a national Iraqi court would have the best chance of actually achieving justice, and would be consistent with other important U.S. policy imperatives. For years, activists have argued that international institutions offer the best alternative for punishing atrocities by government officials. In their book, opposing the establishment and use of multilateral legal institutions means that the guilty would go free. As a result, many have accused the United States of seeking impunity from international law because it has rejected the ICC project. America has a compelling interest in debunking the premise of this flawed argument by proving that national institutions can successfully prosecute a broad range of offenses, including violations of the laws of war, genocide and crimes against humanity. Promoting an Iraqi court to try and punish the fallen Ba'athist leadership would make clear beyond peradventure that national judicial institutions continue to present the first and best opportunities for justice.

Lee A. Casey and David B. Rivkin Jr. are partners in Baker & Hostetler LLP, Washington, D.C. Both served in the Justice Department under Presidents Reagan and George H.W. Bush.

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