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April 18, 2003/Nisan 16 5763, Vol. 55, No. 34
Debate over war tribunals continues
MICHAEL J. JORDAN
Jewish Telegraphic Agency
NEW YORK - Proposals for the type of court that should try alleged Iraqi war criminals are pouring in from across the spectrum, including The Simon Wiesenthal Center's call last week for a Nuremberg-style tribunal to be held in Iraq.
But observers say every proposal has certain drawbacks: None is free of potential politicization and may suffer from a lack credibility if trials are carried out by Americans or Iraqis alone.
Crimes to be considered are broken into at least two categories - those allegedly committed by Saddam Hussein's regime against its own citizens or Iran during the past 25 years and those allegedly perpetrated against invading U.S. forces over the past month.
The Bush administration appears to be pushing for an Iraqi-led court in Iraq for the former type of crimes and a U.S.-run military tribunal for the latter.
Alleged Iraqi crimes during the 1991 Persian Gulf War also may be considered by the latter court, while the British may want to conduct their own trial for crimes against their troops.
"For past abuses, past atrocities, it's our view that there should be accountability," Pierre-Richard Prosper, the U.S. ambassador for war crimes, said recently.
Iraqi judges, though, were so enmeshed in - and tainted by - Saddam's regime that many question if verdicts they present against former comrades would be viewed as credible.
Likewise, the knock against Iraqi exiles, many observers say, is the perception that they are so consumed with hatred for Saddam's regime that they can't be impartial.
International legal experts and non-governmental organizations seem to prefer an ad-hoc, U.N.-affiliated court along the lines of ongoing war-crimes tribunals for Rwanda and the former Yugoslavia, or a "mixed" model like those recently established in Sierra Leone and currently under creation in Cambodia.
The new International Criminal Court is virtually ruled out: Its jurisdiction begins only with acts committed after July 1, 2002, and neither the United States nor Iraq is a signatory.
Then there's the Nuremberg proposal.
In Nuremberg, a military tribunal that started six months after the end of World War II invited the participation of the Allied countries that fought on the front lines - the Americans, British, French and Soviets, says Rabbi Marvin Hier, founder and dean of the Wiesenthal Center.
This time around, the Americans and British - and perhaps the Australians, who contributed a handful of troops to the Iraq war - should reserve the right to mete out justice in Iraq, Hier suggested in a recent letter to U.S. Secretary of Defense Donald Rumsfeld.
"The only reason we have a German democracy today is that the real seeds were planted at Nuremberg," Hier told JTA. "It was at Nuremberg that Germans themselves could see how evil the system was," he said.
Anything in the hands of the United Nations will be subject to bureaucratic delays and overt politicization, Hier said.
For example, the 18 trials conducted so far in the U.N. tribunal for the former Yugoslavia have averaged 18 months apiece and cost more than $1 billion, analysts say.
Moreover, it is the role of the 15-member Security Council to recommend which judges ought to serve on a U.N. tribunal. They must be approved by the 191-member General Assembly, where there is enormous hostility toward the United States and sympathy for Iraq.
The most common criticism of Nuremberg, and of the Wiesenthal Center's proposal, is what became known as "victors' justice" - the credibility issue that arises when winners render verdicts against the losers.
"If you have fair and impartial tribunals in the country concerned, then that's the ideal," said Felice Gaer, a human-rights expert with the American Jewish Committee.
Even more important, critics say, a trial must be credible in the eyes of a skeptical world, especially among Iraqis and the general Arab and Muslim worlds.
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