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TABLE OF CONTENTS
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Finding Saddam Hussein's Weapons of Mass Destruction
Written by Philip E. Coyle, CDI Senior Advisor, this article was first published in the San Diego Union Tribune, April 28, 2003. |
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Stand-off with North Korea: War Scenarios and Consequences
War on the Korean Peninsula would likely mean hundreds of thousands killed and enormous damage, and if at all possible must be avoided. |
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Hair-Trigger Missiles Risk Catastrophic Terrorism
In the first of a new CDI series of regular columns on nuclear issues by Dr. Bruce G. Blair, CDI president and former U.S. Air Force nuclear launch officer, Dr. Blair argues that the continued U.S.-Russian reliance on hair-trigger nuclear alert postures is harming the two countries' ability to fight today's greatest nuclear theat: that of nuclear terrorism. Standing down from current postures that still target each other as main nuclear adversaries will not only lower the risk of accidental or terrorist-instigated launch of a Russian or U.S. missile, but also foster cooperation between Washington and Moscow on countering the terrorist risk in other nuclear-armed countries. |
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Options for the Prosecution of War Crimes and Atrocities in Iraq
The major combat phase of the war in Iraq has ended, bringing the need for post-conflict law and order into the spotlight. Emerging from this latest conflict as well as decades of brutal oppression and war, Iraq faces the daunting task of political and social reconstruction. Fundamental to this process is the prosecution of the most serious crimes, including genocide, crimes against humanity, and crimes of war, committed in the past several decades. In what kind of judicial mechanism will the proposed trials take place? And who will create and manage this mechanism? |
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This Week on SUPERPOWER: Global Affairs TV — "The Bush Master Plan: Post-Iraq" |
Options for the Prosecution of War Crimes and Atrocities in Iraq
Krista Nelson, Herbert Scoville, Jr. Fellow, knelson@cdi.org
The major combat phase of the war in Iraq has ended, bringing the need for post-conflict law and order into the spotlight. Emerging from this latest conflict as well as decades of brutal oppression and war, Iraq faces the daunting task of political and social reconstruction. Fundamental to this process is the prosecution of the most serious crimes, including genocide, crimes against humanity, and crimes of war, committed in the past several decades. In what kind of judicial mechanism will the proposed trials take place? And who will create and manage this mechanism?
The form and authority of a potential judicial mechanism vary according to the interests of concerned parties, as well as the alleged crimes. For example, war crimes committed against American personnel might be better prosecuted in a judicial mechanism of a different sort than that designed for prosecution of the use of chemical weapons against the Kurds.
The United States has taken a leading role in promoting post-conflict Iraq’s political transition to what is hoped will be an open, democratic government. And as the primary “occupying power,” to use the language of relevant international treaties, the United States has certain responsibilities in the post-conflict period. Central among these is the responsibility to create and maintain order in all territory over which it has authority. Furthermore, the United States asserts its right and responsibility to prosecute war crimes committed against its forces. The list of alleged crimes includes mistreatment of POWs and the use of perfidious tactics, including fake surrender.
Kuwait, Iran, and Britain also have key interests in the prosecution of war crimes. In addition, the United Nations, arbiter of ad hoc courts established to prosecute crimes similar to those committed in Iraq, has an interest in contributing to the creation of judicial mechanisms to prosecute war crimes as well as crimes against humanity and genocide.
There are four main options for trials: international tribunals, including ad hoc tribunals and a new permanent court; military tribunals, including military commissions and courts-martial; local tribunals; and hybrid tribunals, which combine both local and international elements.
International tribunal
An ad hoc international tribunal ? such as those established by the UN Security Council for Rwanda and the former Yugoslavia ? is one option. International tribunals have been both praised and criticized for their distance, either physical or cultural, from the country or countries in which the relevant crimes occurred. Although it is possible to employ both local and international personnel in an ad hoc international tribunal, the current two tribunals of this type have an international as opposed to “hybrid” staff; indeed this model is typified by its preference for an international composition. On the one hand, distance allows for greater impartiality and security. International judges are far less likely to be manipulated by obstructionist influences, just as they are less likely to be physically threatened by them. On the other hand, locals might question the legitimacy of an international tribunal; they might feel that its rulings, handed down from afar, lack relevance and meaning.
The United States seems unlikely to advocate this option for several reasons. First, it would offer the United States relatively little control over the judicial process and perhaps prevent the U.S. from gaining intelligence information from suspects. It would most likely offer Iraq little control over the judicial process, thus raising questions of relevance and legitimacy. In addition, some hope that a judicial mechanism for the prosecution of war crimes and atrocities will play a seminal role in the development of Iraq’s future legal system. An international tribunal, by virtue of its cultural if not geographic distance and the anticipated dearth of indigenous personnel, would not act as a foundation on which a future Iraqi judicial system could be built.
International Criminal Court
The International Criminal Court (ICC), which opened in March of this year, is charged with the prosecution of crimes against humanity, war crimes, and genocide, and is hailed as a permanent alternative to ad hoc international tribunals. The ICC is the least viable option for the prosecution of crimes committed in Iraq. First, the ICC’s jurisdiction began on July 1, 2002, and thus it is unable to address the decades of crimes against humanity and war crimes committed by Saddam Hussein’s regime prior to that date.
Furthermore, the ICC is effectively unable to address any alleged crimes committed by Iraq or the United States in the current conflict. The jurisdiction of the court is limited to situations which fulfill at least one of two conditions: the crime must take place in the territory of a state party to the Rome Statute (the statute which called for the creation of the ICC), or the crime must be committed by a national of a state party to the Rome Statute. Neither Iraq nor the United States is a party to the Rome Statute, and thus U.S. military operations in Iraq fall outside the jurisdiction of the ICC.
However, the actions of coalition member Great Britain, a party to the Rome Statute, would fall under ICC jurisdiction, but Britain’s highly developed judicial system renders ICC involvement unnecessary. Another possible avenue to ICC jurisdiction is Security Council referral, but U.S. opposition to the ICC precludes that option. Furthermore, Iraq or the United States could accept ICC jurisdiction, but that is similarly unlikely.
Military tribunal
Military tribunals can take the form of military commissions or courts-martial. In comparison to courts-martial, military commissions allow for greater procedural flexibility. For example, rules regarding the admissibility of evidence are relatively lenient.
The United States has affirmed its right to prosecute crimes committed against U.S. personnel. The options are military commissions, courts-martial, or federal district courts. While it is true that a federal district court is theoretically an option, it is an unlikely one in light of questions regarding its appropriateness under international law. According to Article 102 of the Third Geneva Convention of 1949, the same sentencing procedure must be used for POWs and members of the armed forces of the detaining power. Also, Article 84 states that a POW shall be tried by a military court unless the laws of the detaining power permit soldiers to be tried in civilian courts. In the United States, U.S. soldiers who are charged with crimes committed in the field are tried in military courts and not civilian courts. Furthermore, federal district courts would have more limited jurisdiction over crimes, as they allow trials concerning violations of treaty law but not customary international law, which is unwritten but considered binding.
Both courts-martial and military commissions may be used, depending on the status of the accused. For those Iraqi combatants who qualify as POWs, courts-martial are the most likely option. For those irregular combatants, possibly members of Fedayeen Saddam, who may not qualify as POWs, one option is military commissions. A military tribunal need not be a solely American effort; coalition members and even other countries may participate.
Local tribunal
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Recent statements by Richard Prosper, U.S. ambassador at large for war crimes issues, and W. Parks Hays, special assistant for law of war matters to the Judge Advocate General of the U.S. Army, suggest that the United States favors an Iraqi-led tribunal for the prosecution of crimes committed by Saddam’s regime.
A local effort is attractive for its potential to act as a foundation on which the future Iraqi legal system can develop, and for its greater sense of authority. Amid cries of imperialism, the United States and coalition members have a powerful political incentive to offer significant control and independence to Iraqis. In contrast to international tribunals, a local process seems to better offer the promise of relevance and legitimacy.
However, there are serious concerns as to the impartiality, professionalism, and capability of a potential Iraqi-led tribunal. The pre-conflict Iraqi judiciary would be unable to carry out trials that meet current international standards of impartiality and professionalism. This suggests that an Iraqi-led process would not, and perhaps could not successfully, be completely independent. Such a process would require significant contributions, financial and otherwise, from the United States and beyond. In what seems to be a recognition of this need, the United States reportedly is training 35 Iraqi expatriates to act as judges. There are plans to expand training to residents of Iraq, and to provide training and funds to the future Iraqi justice system. Iraqi exiles’ U.S. training, not to mention years of residence in the United States and perhaps elsewhere, could have a subtle but powerful effect on the proceedings. Depending on the extent of U.S. involvement, an Iraqi-led tribunal might closely resemble the next option, a hybrid tribunal.
Hybrid tribunal
A hybrid (also “mixed”) tribunal, such as those in East Timor and Sierra Leone, combines international and domestic resources, including personnel. A hybrid tribunal may offer the best of both worlds: domestic legitimacy and relevance as well as international expertise and high legal standards. In this case, in contrast to the previous examples, the mix might be of Iraq and the United States, as opposed to Iraq and the United Nations. Indeed, a hybrid tribunal need not be authorized or directed by the United Nations. The United States and other coalition members may make an agreement with Iraqi authorities to establish a court. In addition, Article 64 of the Fourth Geneva Convention allows for the establishment of such a tribunal by the United States and coalition members. However, the absence of UN authorization may diminish the tribunal’s credibility and open the door for accusations of victor’s justice.
The use of multiple options
The United States seems most likely to use military tribunals for the prosecution of war crimes committed against its personnel. For the prosecution of crimes committed against Iraqis, the U.S. seems to favor Iraqi-led tribunals.
The chronological and criminal variety of the actions to be prosecuted suggests that more than one judicial mechanism might be useful. Indeed, there are potential benefits to variety. For example, the United States may wish to prosecute Iraqi personnel who are suspects for various crimes, some committed against U.S. personnel and others against Iraqis. U.S. military tribunals would be relatively easy to establish and the relevant crimes would be relatively small-scale, and thus trials might be carried out in the near term. In contrast, an Iraqi, international, or hybrid tribunal would take much longer to be established and would address crimes of a larger scale. Thus, trials in U.S. military tribunals might be completed first and convicted individuals could be detained before they reach their next trial, minimizing the risk of escape, evasion, or other criminal activity. In that case, the United States should certainly forego the use of the death penalty so that the convicted individual could stand trial for his or her other, perhaps more serious crimes.
The prosecution of crimes of war, crimes against humanity, and genocide will have an effect not only on Iraq’s social and political recovery, but also on the reconstruction and development of the Iraqi legal system. Such an effect will most likely be amplified the closer the trials are to Iraq and the more involved Iraqis are in the judicial process. The choice of a judicial mechanism or combination of mechanisms is one of great significance. Careful consideration of long- as well as short-term benefits hopefully will lead to a practical and durable combination of international and local involvement.
SOURCES:
Council on Foreign Relations, “Iraq: Prosecuting War Criminals,” http://www.cfr.org/background/background_iraq_war_crimes.php
Crimes of War Project, “Justice for War Crimes in Iraq,” http://www.crimesofwar.org/special/Iraq/brief-justice.html
Geneva Convention (III) relative to the Treatment of Prisoners of War, http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68?OpenDocument
Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5?OpenDocument
Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/1d1726425f6955aec125641e0038bfd6?OpenDocument
Human Rights Watch, “Justice for Iraq,” http://www.hrw.org/backgrounder/mena/iraq1217bg.htm
Rome Statute of the International Criminal Court, http://www.un.org/law/icc/statute/romefra.htm
United States Department of Defense Briefing on Geneva Conventions, EPWs, and War Crimes, April 7, 2003, http://www.defenselink.mil/news/Apr2003/t04072003_t407genv.html
Stephen Young, “United States Military Commissions: A Quick Guide to Available Resources,” http://www.llrx.com/features/military.htm
Ruth Wedgwood, Statement Before the United States Senate Committee on Governmental Affairs, “Prosecuting Iraqi War Crimes: A Consideration of the Different Forum Options,” April 10, 2003, http://www.senate.gov/%7Egov_affairs/041003wedgewood.htm
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