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A shackled Saddam Hussein, along with his sons and several high-ranking Iraqi leaders, is led in to a courtroom where he stands trial for alleged war crimes and crimes against humanity. This scene, which might have been inconceivable just a decade ago, was being discussed in academic circles as the United States geared up for the long-awaited war against Iraq, which started late last Wednesday. If Hussein survives the war and American-led forces are able to capture him or other Iraqi officials that the United States deems responsible for such crimes, what method would be used to try them? And in light of such strong international opposition to a U.S. invasion, would any trial be viewed as legitimate in the court of world opinion? Interviews with several academicians just before the war started reveal a range of opinions. Henry Richardson, a professor of international law at Temple University’s Beasley School of Law, who served as a staff member in the National Security Council and U.S. Department of Defense during the Carter administration, said he believes that the war is illegal under international law and, therefore, that any tribunal would be tainted. Villanova University School of Law Professor John Murphy has questions about the legality of U.S. military action — though not its legitimacy — but said a tribunal could work. And University of Pennsylvania Law School adjunct Professor Harry Reicher said he believes Iraq’s violation of the Gulf War cease-fire and succeeding United Nations resolutions, coupled with humanitarian interests and the right of self-defense from weapons of mass destruction, give the United States more than enough justification to prosecute the war. Though they don’t agree on the basis for war, the professors all believe there are four basic options for war tribunals: U.S. MILITARY TRIBUNALS They have received bad press in the wake of al-Qaida arrests from the post-9/11 Afghanistan conflict because many civil rights proponents believe defendants did not receive basic protections afforded them in most international legal settings. While this option would provide the United States with the most control over the situation, the rest of the world would view it as illegitimate, Richardson said. All other options would offer defendants more protections with no chance of pursuit of the death penalty, which is viewed much less favorably abroad than it is in the United States. Murphy said another problem with this option is that it would be difficult to prosecute defendants for crimes committed before the war, such as using chemical weapons against the Kurds and the Iranians in previous conflicts. NUREMBERG-STYLE TRIBUNALS Just as the four victors of World War II — the United States, the United Kingdom, France and the Soviet Union — set up their own court proceedings to try accused Nazi war criminals like Hermann Goering, Rudolf Hess and Albert Speer, there is the possibility that the United States, the United Kingdom, Spain and other members of the so-called coalition of the willing could organize a similar set of proceedings. Richardson said he believes this option would be viewed as the least legitimate by the world because of the opposition to the war. “The question is what is the U.S. trying to do,” Richardson said. “If they are trying to create another Nuremberg, there’s a small chance of that. What dogged Nuremberg was whether it was simply the victor’s justice or a fair international trial. And if the legality of how Saddam was caught is in dispute, there could be a problem. “You have to remember that people were acquitted in Nuremberg. That means that Saddam and the others would have their own counsel and other protections, and I’m not sure the U.S. would want that.” U.N. TRIBUNALS Even though the Security Council has not backed the war, it could be asked to play a role afterward, especially if the United States finds weapons of mass destruction and evidence of atrocities committed by the Iraqi regime. France, the most visible opponent of military intervention, went on record earlier this week as saying it would offer the allied forces assistance if Iraq used weapons of mass destruction. Murphy said the United Nations could expand the jurisdiction of tribunals used for Rwanda and Kosovo to include Iraq — in the process using the same system, courtroom procedures and international judges. The American Bar Association played an advisory role in establishing these procedures. But there is a question as to whether the United Nations would want to take part in tribunals that occur as a result of a war that the Security Council did not endorse. And the United States and its allies might be wary of going through the United Nations, which it believes politicized a clear-cut case for war against a repugnant dictator. HYBRID TRIBUNALS If the Bush administration wants to prove to the world that its main postwar goal is healing the Iraqi nation, Richardson, Murphy and Reicher said, the best option might be a tribunal consisting of a hybrid of international judges and judges from a newly formed Iraqi government. This method was recently used in Sierra Leone and, Reicher said, after years of wrangling in the United Nations, Cambodia appears to be willing to use it as well. “This is attractive in Iraq because the U.S. position has long been that its primary objective is to liberate the people of Iraq from a brutal regime that trampled on human rights,” Reicher said. “The U.S. will certainly look to set up a government fast, so this is a method that could work given the crimes and the context.” Richardson said the United States would have to trust the process — and in many ways divorce itself from it — if the hybrid model were going to be successful. “This would be done to bring about healing in Iraq,” Richardson said. “And in light of what has happened, the more the U.S. is involved, the greater the challenge to legitimacy would be.” Wolf, Block, Schorr and Solis-Cohen partner Jerome Shestack, who had chaired the International League for Human Rights for the past 20 years and served as U.S. ambassador to the U.N. Commission on Human Rights under President Carter, said the United States blundered in not joining the fledgling U.N. International Criminal Court. That decision effectively eliminates that court as an option, Shestack said. He said he believes expanding the jurisdiction of the Kosovo and Rwanda tribunals would be the most viable alternative. Regardless of the option selected, there are questions as to whether the war will create such a schism in world opinion that international war crimes tribunals will be seen as lacking legitimacy. Before the invasion of Iraq, Richardson said that the fighting in Afghanistan might have been viewed by the world as self-defense, but that invading Iraq will not. Therefore, if there were to be a “Nuremberg moment,” it would most likely come from prosecuting Osama bin Laden and other al-Qaida terrorists. “What they did was not just viewed as a crime against the U.S., but also a violation of international law,” Richardson said. “I don’t know if the same could be said for Iraq and Saddam Hussein.” After being dormant for almost 40 years following the Nuremberg trials, international criminal courts made a comeback in 1993 after the horrors of genocide in the Balkans and Rwanda. Reicher said what the United States is trying to do in Iraq — depose a sitting leader — is both novel and significant. In situations such as the Balkans, Rwanda and Sierra Leone, leaders had already been deposed by their own people when they were arrested in war crimes cases. “This would be like a significant portion of the international community saying, ‘We’ve had enough, we’re getting rid of you and putting you on trial,’” Reicher said. “In only 10 years, we’ve made a quantum leap forward in prosecuting human rights violations. I think this could lead the world to be much tougher on dictators. … I think [other dictators] are nervous because they know if the U.S. succeeds in this, they could be next.”

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