NEW YORK – As the U.S.-led coalition continues to round up top members of Saddam Hussein's regime, American and Iraqi officials are hammering out exactly how to prosecute Saddam (search) loyalists accused of participating in brutal war and humanitarian crimes.
The State Department has been working with Iraqi jurists and lawyers — many of whom are exiles — to set up a system to try suspects for a myriad of crimes, including: gassing the Kurds in the late 1980s and early 1990s; brutally oppressing the Shiite (search) uprisings after the first Gulf War; rape, torture and unlawful imprisonment; falsely waving the white flag during Operation Iraqi Freedom and then shooting U.S. soldiers and surrendering Iraqis; and using human shields.
Pierre-Richard Prosper (search), U.S. war crimes ambassador, has called for an "Iraqi-led process" with U.S. assistance.
But questions remain over who will serve on the courts and how criminals will be tried.
"I think that the Iraqis will have a better opinion of justice if they administer it themselves under guidelines established by the U.S. so as to assure the rule of the law," said Fox News senior judicial analyst Andrew P. Napolitano.
But "we have to make sure the courts aren't simply used as an instrument of vengeance."
And a system should be put into place soon, experts say, to fill the power and legal vacuum in Iraq.
"Justice is an urgent priority," said Tom Malinowski of Human Rights Watch. "You can't wait a year to get this process started, because millions of Iraqi families are going to be looking for accountability and closure."
The judicial process may differ on what crime is alleged to have been committed, said Michael Hartmann, senior fellow at the U.S. Institute of Peace and international prosecutor in Kosovo.
An international criminal tribunal could be set up by the U.N. Security Council — like the one in the former Yugoslavia and Rwanda — that would provide resources and international legitimacy and would feature judges from all over the world. This model so far has excluded judges from any of the states involved in the conflict.
A second option would be based upon the Sierra Leone model, established by a treaty between that country's government and the United Nations. The United Nations would provide some international civilian judges and resources.
This could be a mix of international and local judges and prosecutors, with the majority from other countries. Hartmann, who was the first international prosecutor appointed by the U.N. to Kosovo and East Timor, said an international voting majority is crucial.
"I think that model makes sense because it balances the very legitimate concern that the Iraqis have that they be allowed to deal with these painful issues with the concern others have that the court have maximum credibility," Malinowski added.
But without a stable Iraqi government in place, this option has its snares.
A third option is a model working in Kosovo and East Timor — a mixed, internationalized panel that could be inserted into existing domestic courts in Iraq set up under the authority of the U.N. Security Council.
"The advantage about this is that it can be done with less expense and it's also in-country, so it's much closer to the action," Hartmann said.
But the United States doesn't want Security Council permanent members like France, China and Russia, as well as non-permanent member Germany, to have that role, since they did not support the war.
The U.S. government also could use the Fourth Geneva Conventions to set up a U.S. military court in Iraq but staff it with international judges and prosecutors, so that Iraqis would be tried in a public forum. This form was used in Tokyo to try Japanese war criminals after World War II and in Nuremberg.
"The advantage is, Nuremberg worked extremely well and helped our relationship with the German people post-WWII because they saw how truly fair the law was and how fair the process was," said Napolitano.
"If you have a combination of civilian internationals, which you could get even if limited to our U.S. coalition of the willing partners, you can mix them with Iraqi judges, and this would be much more acceptable in terms of people seeing this as a fair process than just having American military personnel or just American civilians," Hartmann added.
Then there's a judicial panel of all Iraqis, something experts agree may not be the best option.
"I do believe that it would be very difficult for these Iraqis to be either fair or have an appearance of fairness," Hartmann conceded. "You have some expatriates who lost everything they had and had to flee, and those who stayed in Iraq, suffered and lost family — what do you think they're going to do to Saddam or his Baathist followers?"
About 700 American civilians from the State, Justice and Defense departments are in Iraq interviewing Iraqi lawyers and judges — many of whom were Baathists simply to ensure their success and survival — "to try to find out who the good guys are," Napolitano said.
Iraqis would, at the very least, be able to try looters and other lower-level criminals by themselves. The Iraqi Jurist Association, working with the United States, even wants an all-Iraqi court to try Saddam.
"We will not let him get out of the country just like what happened to [former Yugoslav President Slobodan] Milosevic," who was sent to The Hague for trial by an international tribunal, said former Iraqi diplomat Mohamed Al Jabiri.
Prosper recently told a Senate committee that Iraqis should lead the judicial process, no matter what shape it takes. The United States would prosecute for war crimes committed against America, while other countries could hold their own trials.
"It is clear that Saddam Hussein and his forces have a complete disregard for the laws of war and for human life," Prosper said. "There must be credible accountability."
The next question is how much the United States should be involved.
"We're trying to do this with a light footprint … we don't want to look like oppressors," Hartmann said. But "once you start with the light footprint, it's very difficult to go to a heavy one."
He noted that in Bosnia, after seven years of only monitoring a local judiciary, the global community decided to create a state-level internationalized court because of the power organized crime and extremists had on locals.
Malinowski said U.S. involvement should be to "the smallest extent possible," but acknowledged that the United States needs to take the lead — either overtly or behind the scenes.
"From the point of view of the Iraqi people, the Arab world, the international community more broadly, the tribunal would have more credibility if it's not seen as a U.S.-directed enterprise," he said.
"I think it can only aid their [coalition's] cause to have a sense of international legitimacy behind this kind of effort, particularly because this is so sensitive … this isn't getting the electricity back on or picking up the garbage."