Iraq: Judging War Crimes

President Bush looks positively prescient for having pulled the United States out of the treaty that authorized the International Criminal Court.

At the time, his critics sneered that he didn't know how to play well with others in the world, that America couldn't stand alone on such matters, and that it was foolhardy to fear that U.S. soldiers would be hauled into the ICC dock to answer trumped-up, politically motivated charges.

Now, less than two years later, he has led an international coalition to victory over Saddam Hussein and his evil empire. And an attorney in Belgium has filed documents to try to convince Belgian courts to indict American Gen. Tommy Franks, who directed the war effort in Iraq, for war crimes under Belgium's worldwide jurisdiction laws. Franks' "crime" was to authorize the use of cluster bombs. The same attorney also wants to find and charge U.S. soldiers he said deliberately shot at an ambulance, killing one of the two injured men aboard.

Many of the same people who backed the ICC now say we need U.N. involvement in any Iraqi war crimes trials so the coalition doesn't prevent the trials from examining American conduct.

We may -- and should -- find this laughable. No military campaign in history took such great care to spare civilians and their institutions and to limit damage to infrastructure. Yet the U.S. State Department takes this seriously enough to have warned Belgian leaders not to press forward with such charges, even though few expect Belgian courts to indict the head of the U.S. military's Central Command.

That said, the U.S. military didn't pass out those playing cards with the photos and identification of the 55 most wanted Iraqis to encourage the playing of gin rummy. There almost certainly will be war crimes trials -- not of Gen. Franks or U.S. soldiers, but of many of the 55 people on those cards. There also will be trials of others with prominent roles in Saddam's merciless regime and even those who committed crimes during battle, such as false surrenders, murders of prisoners of war, and the unlawful use of schools, hospitals and mosques to conduct military operations.

How should they be tried? The trials that followed World War II provide instructive examples. Leaders of the Axis Powers were tried before a tribunal of judges drawn from the major allied powers in what came to be known as the Nuremberg Trials. The allies jointly created, staffed and administered these tribunals, and they operated based upon principles of international law, independent of the laws of the countries who fought the war.

Also, each of the allied powers convened its own independent military tribunals where hundreds of people -- many of them military commanders -- were tried in courts similar to those authorized for the alleged al Qaeda operatives detained at Guantanamo Bay. And once civil governments were restored in Japan and Germany, many less significant offenders were tried in the renewed courts in those countries.

All three are reasonable options for dealing with Iraq, and some combination of the three likely will take place. Coalition countries will want to try high-level officers who have tortured or killed coalition POWs or engaged in war crimes that caused coalition casualties. For most other matters, coalition countries should defer to Iraq's judicial system as soon as it becomes functional again, but not at the expense of delay or allowing the guilty to escape punishment.

One proposal that should be rejected outright is to rely on the mechanism of the United Nations, either through the International Criminal Court or temporary courts similar to those in Kosovo and Rwanda, which would need Security Council approval to go forward. It's not just because the Security Council refused to endorse the war to end the Iraqi dictatorship. And it's not just to avoid those fixated on finding some coalition wrongdoing in the conduct of the war.

It's because we need real justice from these trials. The truth must emerge. It's vital that political motivations don't determine who is accused, what they are accused of and how they are adjudicated. That's why international courts in any form are inappropriate for judging the Iraqi regime.

Paul Rosenzweig is a senior legal research fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.

Respond to the Writer