Illustration by Dale Stephanos

On January 19, during an appearance on Fox News Sunday, US Secretary of State Donald Rumsfeld hinted that he'd prefer to end the Iraq crisis through peaceful disarmament or with Saddam Hussein opting to "leave the country."

Fox News Sunday host Tony Snow pressed Rumsfeld further, asking, "Do you seriously think this is a guy who will pack up and go someplace else and live in a luxurious exile?"

"I hope so," replied Rumsfeld. "I would certainly prefer it."

Later that morning, on ABC's This Week, Rumsfeld told host George Stephanopoulos that "I would be delighted if Saddam Hussein threw in the towel, said, 'The game's up, the international community has caught me, and I'll just leave.' "

Stephanopoulos also followed up: "And if he did that, would the United States be willing to give him immunity, say, from war-crimes prosecutions?"

"Well, I'm not in the Justice Department or in the White House," Rumsfeld observed, "and those are questions for them. But if -- to avoid a war, I would be, personally . . . [I] would recommend that some provision be made so that the senior leadership in that country and their families could be provided haven in some other country. And I think that that would be a fair trade to avoid a war."

On other Sunday chat shows that day, US Secretary of State Colin Powell and National Security Adviser Condoleezza Rice also dangled the prospect of asylum. In essence, top White House officials offered Iraq's leader a chance to ease on down the road taken by Uganda's thuggish dictator Idi Amin, who, during his eight-year rule, killed 100,000 of his own countrymen and harbored terrorists. Deposed in 1979, Amin now lives in luxurious exile in Saudi Arabia and has never been held accountable for his brutal crimes.

When the White House floated the "Idi Amin option" in mid January, it came as a surprise to many observers. After all, Saddam's own war crimes -- against his own people, against Iran in the savage war fought in the 1980s, and against Kuwait in Iraq's occupation of that country in 1990 and 1991 -- are far worse than Amin's transgressions.

But the "Saddam-nesty" offer was more surprising because these crimes (including the systematic use of chemical weapons to commit genocide against Iraq's Kurdish population) have figured in the White House's public case for military action against Iraq -- and its prominent calls for Saddam and other Iraqi leaders to face justice. Since as early as October 2002, the Bush administration has trumpeted its preparations to bring Saddam to justice, and the US government has funded private groups -- including the UK-based organization INDICT (www.indict.org.uk) -- to compile dossiers on leading Iraqi leaders for war-crimes trials. In fact, mere days after Rumsfeld, Powell, and Rice floated the immunity trial balloon, President Bush was back to the tough talk about Iraqi crimes that would figure so prominently in his January 28 State of the Union address. On January 22, Bush threatened war-crimes trials for Iraqi leaders who employed chemical or biological weapons, warning them that "when Iraq is liberated, you will be treated, tried, and persecuted [sic] as a war criminal."

Cushy exile? War-crimes trial? This mixed American message can't help but sow confusion. US Institute of Peace senior fellow and 1993 Pulitzer Prize winner Roy Gutman notes that the Bush administration's recent statements on Saddam's war-criminal status have indeed muddied the issue. "On the one hand," says Gutman, who also heads American University's Crimes of War Project, "they say they want to have a settling of scores. On the other hand, they are offering Saddam an amnesty via the media. They are two contradictory choices with vastly different implications -- and they have in no sense indicated which one they're choosing."

Even those who strongly support the notion of holding war criminals to account find it hard to completely dismiss the notion of giving amnesty to Saddam, since it might save thousands of lives. Samantha Power, the former executive director of the Carr Center for Human Rights Policy at the John F. Kennedy School of Government, is author of the new book A Problem from Hell: America and the Age of Genocide (Basic Books), which offers a scathing and powerful indictment of American inaction in the face of numerous 20th-century instances of genocide. In fact, one of the most affecting chapters of A Problem from Hell deals directly with Saddam's genocide against the Kurds in the late 1990s. (In one of the book's most chilling asides, Power relates the "hideous lack of irony" in US chemical companies calling Senate staffers to gauge how their products would be affected by sanctions voted against Saddam for his use of chemical weapons against the Kurds.) Power agrees that the amnesty trial balloon "completely expose[s] that this war is not being fought on human-rights grounds." But, like Gutman, she is torn. "If a war and incredible atrocity can be staved off by immunizing Saddam against prosecution," says Power, "one has to say, `Gosh, that's probably better.' It seems crass to sacrifice lives on the altar of even a righteous principle."

THE BUSH administration's war-crimes point man is US Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper -- a former prosecutor who also served with the United Nations International Criminal Tribunal for Rwanda (ICTR) from 1996 to 1998. Prosper has a knack for attracting attention to the war-crimes issue. He's even knocked on the door of indicted war criminal Radovan Karadzic's mother. The former Bosnian Serb president remains wanted for crimes committed during his tenure, and Prosper's house call was an attempt to pile more pressure on Karadzic to turn himself in to the International Criminal Tribunal for the former Yugoslavia (ICTY). Karadzic has yet to do so -- even after Prosper's canny publicity stunt.

Prosper has mastered the medium of getting attention, but the message he carries can be charitably described as "mixed." On the question of "Saddam-nesty," for instance, Prosper walks the public trial balloon back to a place closer to the tough White House rhetoric about Iraq's dictator. "I won't get into too much detail on this issue," Prosper tells the Phoenix, "but I think the key is to go back and look at the language that was used by [Rumsfeld and Powell] in the discussion that came up. They used the word 'exile,' and not 'amnesty' -- and I think you should use that as guidance."

Current contradictions in US policy on war crimes and international justice extend back to the Clinton administration and beyond. The United States helped create the ICTR as a response to genocide in Rwanda and the former Yugoslavia, yet in 1998 the US voted against the "Rome Treaty" that established the UN's International Criminal Court (ICC). President Bill Clinton halfheartedly signed the treaty at the end of his term, but the Bush administration rescinded his signature within months. President Bush also signed a virulent piece of anti-ICC legislation passed by the US Congress shortly after the court opened its doors in July 2002.

Its own anti-ICC position notwithstanding, the White House has exerted financial and other diplomatic pressure to strong-arm countries such as Serbia and Montenegro and Bosnia-Herzegovina to turn over defendants indicted by the ICTY. (Slobodan Milosevic's extradition to the ICTY was coerced by strong US pressure.) Yet Prosper has publicly criticized the professionalism of both ad hoc UN tribunals -- and the US has pushed hard to obtain waivers from individual countries (including those above) to provide blanket immunity to US military personnel from indictment by the ICC.

In its World Report 2003, Human Rights Watch noted the inconsistencies and concluded that the ICC was subject to "systematic attacks by the United States." The report added that the US was one of only seven nations (including China, Iraq, Israel, Libya, Qatar, and Yemen) to vote against the Rome Treaty, and specifically mentioned Prosper in its critique of the US's rescinding its treaty signature. "While US Ambassador for War Crimes Issues Pierre-Richard Prosper claimed the administration was `not going to war' with the court," the report noted, "this renunciation of the treaty paved the way for a comprehensive US campaign to undermine the ICC."

Human Rights Watch director Kenneth Roth voiced the critique in even stronger language in a July 2002 op-ed in the Financial Times. "An increasingly influential faction in the Bush Administration," Roth wrote, "believes that US military and economic power is so dominant that the US is no longer served by international law. . . . No effective global system can rest solely on coercion. Global order depends on most governments abiding voluntarily by shared norms. Exempting America from the rule of law undermines those norms, leaving a more violent and inhumane world."

Prosper argues that, to the contrary, the United States does provide leadership on war-crimes issues. "When it comes to war crimes at large, we play a leadership role throughout the world," he says. "I think everyone wants to hear what the United States' view is on these issues, regardless of the varying positions on the ICC, because people do see things happening on the basis of the leadership role that we are playing. Indictees are being sent to The Hague on the basis of policy that we initiated years ago to get the action that we needed. In Rwanda, we have the Rewards for Justice campaign that is getting [indictees] into the proper forum. . . . People will listen to what we have to say and look for the view that the US expresses on this to make their respective decisions."

Yet one big war-crimes decision looms large -- and is sure to intensify in coming weeks: if Saddam refuses to follow Idi Amin into comfortable exile, just how will he be brought to account for his crimes? And more important, will a victorious "coalition of the willing" (as the Bush administration describes the nations willing to invade Iraq without UN approval), led by a United States with a muddled and contradictory stance on international justice, be the right party to shape that trial?

THE BUSH WHITE House's muddy
international-justice policy undoubtedly has plagued US efforts to lead on larger war-crimes issues. Yet even if American war-crimes policy were crystal clear and thoroughly consistent, bringing Saddam Hussein to trial for his years of flouting the conventions of war and committing genocide would still be a complicated task.

The ICC, for example, would be of little help. The court took effect on July 1, 2002, and is empowered to hear cases involving only crimes committed after that date. Consequently, it could hear none of the evidence against Saddam described in Power's book and cited by the Bush administration as among the rationales for attacking Iraq. Also, as one of the seven countries that didn't sign the Rome Treaty, Iraq is most likely beyond the ICC's jurisdiction. Under ICC rules, non-signatory countries must agree to accept the court's jurisdiction.

As the executive director of INDICT, Charles Forrest has put a great deal of thought into not only the case against Saddam and 11 others -- including ubiquitous Iraqi deputy prime minister Tariq Aziz (a prominent Iraqi spokesperson during the Gulf War) and Ali Hasan al-Majid (who oversaw the genocidal campaign against the Kurds described in such detail by Power) -- but also the manner in which they might be brought to justice. Reached at INDICT's London offices by telephone, Forrest observes that his organization had originally campaigned for an independent tribunal created by the UN Security Council along the lines of the tribunals created for the Balkans and Rwanda. In the multiplicity of UN resolutions concerning Iraq, however, such a tribunal has never been created -- and Forrest despairs of the Security Council's doing so now. "A specific tribunal for Iraq is just not practical," says Forrest. "It's too expensive, and there is no willingness in donor countries to fund that again." He also concurs with some of Prosper's criticisms of the existing UN tribunals, citing the fact that fewer than 20 cases have been tried in the ICTY. "It's proven to be totally unwieldy," he observes.

Eschewing the UN-tribunal approach, INDICT cites the 1988 arrest of former Chilean dictator Augusto Pinochet in Great Britain in response to a warrant issued by a Spanish judge who wanted the leader of Chile's violent US-supported 1972 coup (and ruthless suppressor of that country's left-wing opposition) to appear in a Spanish court to answer charges. To date, INDICT has filed charges against Iraqi leaders in Britain and a number of other European countries in hopes of a similar result.

Yet Forrest notes that the looming specter of war and regime change has caused INDICT and other groups with similar aims -- including a group of expatriate Iraqi lawyers and judges who have formed the "Transnational Justice Working Group" -- to start planning for the possibility of homegrown justice for Saddam and his cohorts.

Forrest says they've "discussed all the different options," but he observes that "Iraqis want to see this done in Iraq, under Iraqi law." Forrest concedes that such a homegrown effort would require "substantial technical assistance" from outside the country, but he adds that "Iraq has a long legal tradition" rooted in European jurisprudence -- specifically, the French tradition, since Iraq's civil law is based on the Napoleonic code.

"The fundamentals are all there," Forrest argues. The key to an Iraqi trial, he says, would be that "the defendants would have the opportunity to defend themselves . . . and that the proceedings would be open and transparent." Yet Forrest notes that any option for trying Saddam would be an imperfect instrument in the eyes of one party or another. "Any time you do this," he says, "people are never going to be fully satisfied."

Considering the depth of international opposition to the White House's Iraq policy and its stance on the ICC, war-crimes trials organized and conducted unilaterally by the United States or by the "coalition of the willing" might be the least satisfying option. But since one of the options on the post-Saddam table is a military governorship, such an approach (accompanied by inevitable charges that the US is imposing "victors' justice" on Iraqis) can't be ruled out.

Samantha Power argues that "if the Bush administration takes this on themselves, it will only come off as a show trial, no matter how credible its tribunal becomes. There is no way that [the US] can be seen as a neutral arbiter of justice."

A US-run trial along the lines of the Nuremberg Court is still an option, but Prosper says that no firm decisions have been made on what mechanism will be used to bring Iraq's leader to justice. "We've been studying this issue very carefully," says Prosper, "and where we are in our decision-making process is that we're keeping the focus on the issue at hand right now, which is the disarmament process. . . . Then, clearly, if Saddam does not disarm, then the question of the war-crimes issue becomes more and more relevant. We want to see a process in a free Iraq that has a strong Iraqi role, and co-leadership in that process. We are prepared to provide any support in that process that would be necessary."

NOWHERE HAVE American inconsistencies in international-justice policy produced more ill will than in the Balkans. This ill will also speaks to larger issues that confront the United States as it weaves war-crimes policy into the larger fabric of its foreign policy.

The Nuremberg trials were conducted in an atmosphere created by Nazi Germany's unconditional surrender. The victors had a clear path to craft a new standard of international justice. Though the UN's Rwanda tribunal proved problematic, the civil-war victory of Rwanda's Tutsi minority over the Hutu majority, who had killed 800,000 mostly Tutsi people, made that nation's path to justice less politically fraught than the one facing the fragmented nations involved in the Balkans tribunal.

The 1995 Dayton Peace Accords between three ethnic communities -- Bosniak, Croat, and Serb -- ended not one, but two wars. Atrocities, war crimes, and genocide were committed not only by Serbs attempting to carve a "Greater Serbia" out of Bosnia and Croatia between 1991 and 1995, but also by Bosniaks and Croats who fought each other for a period between 1993 and 1995. Add in the decade-plus of Serb repression of the Albanian majority in the province of Kosovo -- which culminated in the Serbian attempt at ethnic cleansing and the NATO bombing of 1999 -- and you have a series of messy conflicts with few clear victors.

The democratic ouster of Serb president and indicted war criminal Slobodan Milosevic in October 2000 did tidy the picture, but cooperation between the nations involved in the conflict and the ICTY remains uneven -- and, at times, downright recalcitrant. Milosevic's 2001 extradition to The Hague under a looming deadline for the cut-off of American foreign aid to Serbia created strong feelings among even some staunch reformers that the much-loathed dictator was "sold to the West for foreign aid."

Prosper threatened aid cut-offs again during his January visit to Serbia and the Serb-controlled portion of Bosnia-Herzegovina to win more arrests and extraditions. But it is US efforts to obtain what are known as Article 98 waivers -- or "impunity agreements" ensuring that American personnel will not be subject to ICC prosecution -- from countries that it prods toward compliance with the ICTY that have truly heightened cynicism.

Balkan cynicism about (and lack of cooperation with) international justice continues in the face of recent US calls for winding down the ICTY, even as both the US and the European Union reduce their expectations that Balkan nations will cooperate with the ICTY. Croatia, for example, recently won its pitched battle with The Hague over the necessity of extraditing a popular but ailing general charged with war crimes when Croatians retook the Krajina region, in 1995.

Even Prosper's most recent visit to Serbia in late January, during which the number of indictees that Serbia must turn over to receive US aid was cut from 10 to three -- Bosnian Serb general Ratko Mladic (responsible for the siege of Sarajevo and the 1995 massacre at Srebrenica) and two other indicted war criminals involved in massacres near the Croatian city of Vukovar in 1991 -- met with resistance. Serbia's reform-minded prime minister, Zoran Djindjic, promised that he would make an effort to comply, but also told independent radio station B92 that the loss of US aid "would be no tragedy" for Serbia.

Prosper says that Balkan countries do raise the ICC and the Article 98 agreements with him, but he says that such questions "force me to articulate clearly what the differences are between the two enterprises, if you will, and what various international obligations are." He hews closely to the White House position that differentiates the two courts. "The cooperation with the Yugoslav tribunal is obligated by the UN charter," notes Prosper. "The ICC is not a UN organ, but a treaty-based court that places obligations on the parties to the treaty -- rather than the world at large."

Yet the world at large is watching. Even if the looming crisis in the Persian Gulf ends in the way that the Bush administration would most like -- with a new, democratic, and disarmed regime in Iraq and Saddam Hussein called to account for decades of brutality -- the question of US policy on
international justice seems certain to be dogged by uncertainty and contradictions that will hurt larger US interests.

Power argues that the Bush administration would like to keep world attention focused on Iraq, but she notes that even when it comes to a single strand of US foreign policy such as war crimes, "every à la carte decision that the administration makes is being viewed as a totality. There are concerns in other areas. I don't think there's a way to keep Iraq in the box. That's how they've debated this, when actually the debate is the larger issue. You can't take universal principles and apply them today, and then eschew them tomorrow."

Richard Byrne can be reached at richardbyrne1@earthlink.net.

Issue Date: February 28 - March 6, 2003