WASHINGTON—With the capture of growing numbers of Saddam Hussein's henchmen, the challenge of prosecuting Iraqis responsible for mass murders is becoming more urgent.
The Bush administration and some Iraqi exiles insist that a reconstituted Iraqi court system can, with U.S. and international help, handle crimes of a regime that killed or "disappeared" 290,000 people in 24 years, according to a Human Rights Watch estimate.
President Bush has promised that war criminals "will be held to account for their crimes." But the administration and many human rights and legal groups disagree on how to do that in a country whose legal system was corrupted and compromised.
"Iraqis have to take the lead in judging those who have committed the greatest crimes against their people," said Pierre-Richard Prosper, the State Department's ambassador-at-large for war crimes. "I think they are up to the task."
Many legal experts and human rights advocates disagree, along with some members of Congress. They support an international tribunal as the best way to insure impartiality and credibility in bringing Saddam and his top leaders to justice.
"An Iraqi-led system sounds wonderful in principle, until you look at the reality of the situation," said Kenneth Roth, executive director of Human Rights Watch, a New York-based group that has collected data on atrocities in Iraq since the 1970s.
"Hand-picked exiles aren't going to have the confidence of people, and too many Iraqi legal officials and former officials have been compromised," said Roth. "They will not have the ability or legitimacy to take on this undertaking."
Eugene Fidell, president of the nonpartisan National Institute for Military Justice in Washington, D.C., was also skeptical: "The notion of an Iraqi judicial apparatus up and running anytime soon is hard to imagine."
Congress has backed an international tribunal, possibly modeled on Yugoslavia and Rwanda systems set up by the United Nations, to prosecute Iraqi crimes. Last month's special budget bill for the Iraq war included $10 million for such a tribunal. It has the support of a bipartisan group including Sens. Joe Biden, D-Del., and Arlen Specter, R-Pa.
Ruth Wedgewood, an international law expert who has advised the Pentagon, has suggested a "hybrid" tribunal with Iraqi and international participation, along the lines of a system invoked for Sierra Leone.
Administration officials say they would welcome the assistance of some legal advisers, especially from Arab nations, but they oppose a U.N. tribunal as unwieldy, expensive and unnecessary.
Bush officials also want to keep the death penalty as an option in war crimes, a punishment now excluded in international tribunals.
"If they caught Saddam, would you really want him to get four years in some Dutch prison?" said David Rivkin, a Washington lawyer with close ties to the administration.
Roth of Human Rights Watch said the Bush administration has "an ideological antipathy" to international justice in any form and wants to avoid any system close to the new International Criminal Court, which it does not support.
There is no lack of evidence against Saddam's regime. Prosper's office has been collecting data on Iraqi crimes for years. Human Rights Watch in 1991 was given 18 tons of documents that Kurdish forces captured from Iraqi security officials.
"Like many police states, they kept good records," Roth said.
Dozens of exile lawyers and jurists have been meeting for months with State and Justice Department advisers, laying the groundwork for a reborn Iraqi legal system.
"I know individuals in Iraq—retired judges forced out by the regime—who can get involved now," said Sermid al Sarraf, an Iraqi-American lawyer from Los Angeles preparing to return to Iraq as a legal adviser.
Before he left the country, al Sarraf, 38, was a classmate of Saddam's son Uday in Baghdad, where he saw a "glimpse" of the regime's brutality. One of his uncles was assassinated and another, a judge, forced to retire. One cousin was "disappeared."
"I'm under no illusions this will be a smooth process reestablishing the rule of law," said al Sarraf, a member of the exiled Iraqi Jurists Association.
"The key is exiles cannot go back to grab power. If I were living in Iraq I'd be suspicious of someone coming back after 20 years.
"But it's important that Saddam and his regime be prosecuted in Iraq, on Iraqi soil by Iraqi judges," he added.
Like many Iraqi exiles, he also favors a truth and reconciliation commission, similar to one in South Africa, that could provide amnesty to middle-level officials if they give a full accounting of their role in crimes.
Prosper said U.S. investigators are finding suspicious gravesites and documents almost every day—and encountering desperate Iraqis ransacking Baath Party offices and digging up graves looking for evidence of their relatives.
"The entire country is a crime scene," Prosper said. "We're trying to strike a balance between preserving the integrity of evidence and the needs of people going through great pain who want immediate answers."
The one fear shared by U.S. officials, exiles and human rights advocates is that reprisal killings and vigilantism will grow if Iraqis see little chance that war criminals will face justice.
"If someone knows who tortured their family, and nothing happens to the torturer, it's hard to blame people for taking justice into their own hands," al Sarraf said.
(c) 2003, Knight Ridder/Tribune Information Services.