Who Will Try Iraqi War Criminals?

In his speech to the nation Monday, President Bush promised that Iraqi war criminals would be tried and punished—but he didn’t specify which criminals or in which court they would be tried. Which Iraqis will be tried, and who will judge them?

The answers depend largely on the outcome of the war, once it’s clear who’s still alive to stand trial. Most experts agree that war-crimes trials will be limited to indictments against a small fraction of the thousands of likely suspects,since wiping out Iraq’s government infrastructure (on top of its economic and military infrastructure) will make it that much harder to build a new state. In fact, the U.S. government has kept its official list of Iraqi war criminals extremely short, even though hundreds of officials have been implicated in the use of chemical weapons against Iraqi Kurds in 1988. It’s likely that only the top echelons of the military will be tried—perhaps 50 people, perhaps more, depending on who you ask and whether or not local commanders fight. (If they surrender, they might escape prosecution.)

For the invading Americans, “who” is tried is almost less important than “how,” because these trials give the United States a much-needed chance to exhibit fairness and restraint after initiating a war. Possible trial venues include:

International Criminal Court: This one can probably be ruled out—neither the U.S. nor Iraq ever agreed to it. Ironically, it might be legally possible to try British or Australian troops in the ICC for war crimes if they commit any atrocities, since their nations are signatories. U.N. ad hoc tribunal: This is a special international court that has to be mandated by the Security Council—recent examples include courts created to try war criminals from the former Yugoslavia and Rwanda. Considering the intense misgivings fellow Security Council members like France and Russia have about the war, it is unlikely that the United States will ask them to create a tribunal. And even if they did, there’s another snag if the blue helmets show up—no U.N. court can sentence a war criminal to death. U.S. federal courts: Under the War Crimes Act of 1996, war crimes by or against U.S. citizens can be prosecuted in American federal courts. This option also seems unlikely, however, because many of the crimes likely to be prosecuted involve Iraqi officials assaulting their own citizens.Local Iraqi courts: These might do for small-fry Baath loyalists. After all, the United States will be trying to create a respectable criminal justice system in Iraq, and war criminals would provide useful fodder to get things rolling. But it’s unlikely that any of the regime’s kingpins would face a local court, since there would be too many opportunities for political skullduggery and old allegiances to taint the process.Hybrid courts: All the rage since their success in Sierra Leone, hybrid courts bring together a combination of local and international jurists. The idea is to mix the grass-roots appeal of civil courts with the respectability and fence-mending powers of international courts. This option also allows the United States to involve European jurists without having to go through the United Nations.

The flexibility of a hybrid court will be attractive to post-Iraq planners not because of its appeal to international justice but because it will allow the United States to better trade amnesty for information while still satisfying world opinion. Say the United States invades Iraq and raids all the bunkers and palaces but doesn’t find weapons of mass destruction or Saddam Hussein. In that case, the post-war administration’s first priority will be to pump Iraq’s surviving officials for information—a process that could carry over to war crimes courts.

If you’re wondering what war crimes are, Explainer has covered this before.

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Explainer thanks Ruth Wedgwood, professor of International Law and Diplomacy at John Hopkins University and senior fellow at the Council on Foreign Relations; David Phillips, deputy director of the Center for Preventative Action and senior fellow at the Council on Foreign Relations; and Reed Brody, special counsel for Human Rights Watch.