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The future of Iraqi war crime trials

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Professor Ruth Wedgewood

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U.S. Lt. Gen. David McKiernan, coalition commander, and Maj. Gen. Buford Blout, 3rd Infantry Division commander

McKiernan: Mass grave sites being discovered in Iraq are high on the U.S. military's list for security arrangements.

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WASHINGTON (CNN) -- A mass grave found in Iraq could provide evidence for war crimes prosecutions against Saddam Hussein's former regime but the format of such a court has yet to be decided. CNN Anchor Kyra Phillips talked to Ruth Wedgewood, professor of international law at Johns Hopkins University about the options open to the U.S., Iraq and the international community.

PHILLIPS: Let's talk about these Iraqi leaders that are in custody. They can be tried for war crimes in an international tribunal, correct? And that's under the Geneva Convention.

WEDGEWOOD: They can be tried for any numbers of crimes against their own population. You can try them in Iraqi national courts, you can try them in a so-called mixed tribunal that could combine international participants and Iraqis. You could try them in American military commissions, or in principle, you could try them in a U.N. tribunal created by the Security Council.

PHILLIPS: Would it be a reconstituted Iraqi court system with international help and the U.S. getting involved?

WEDGEWOOD: I think the administration's position is they want to use the war crimes trial process as part of building democracy. So the phrase you'll often hear is an "Iraqi-led process." That could mean either Iraqi national courts or the so-called mixed tribunals.

I think for the crimes Saddam committed against his own people, the Kurds, the Shia, just simply his political opponents, those terrible kinds of mass graves, there you'd probably want significant Iraqi participation.

For crimes against the allied troops in 1991 and 2003, there, I think a military commission, perhaps with participation from our allies in the coalition, even including Muslim jurists, would be welcome.

PHILLIPS: Well, looking at the different options, I know there are there are some where the death penalty cannot be implemented, correct?

WEDGEWOOD: If you go U.N., you can't have the death penalty.

PHILLIPS: OK, so do you think that would happen? I can't imagine folks would want to see Saddam Hussein and some of these Iraqi leaders in jail for life. I think they'd want to see the death penalty imposed.

WEDGEWOOD: If you shot 100,000 people in the back of the head, that might be a case where even a European would believe the death penalty is warranted. And frankly, you'll also want Saddam off the scene. I don't think you want him there encouraging Baathist revivals from a jail cell.

PHILLIPS: Now how do you handle crimes before Operation Iraqi Freedom and the crimes that took place during Operation Iraqi Freedom? Does it get more sticky there?

WEDGEWOOD: Well, there's no statue of limitations on murders, so again, the crimes against the Iraqis themselves can go way back in time. Against our troops, it's accepted under the law of armed conflict that that adversary has the right and, in fact, the obligation, to put war criminals on trial for grave breaches of the Geneva Conventions. So there, you call your lists of people you've captured as POWs, you can call refugees, or just go out and arrest them when you're the de facto occupying power.

PHILLIPS: So let's say this is an Iraqi-led process, how do you find factual assessors that haven't been tainted? How do you find judges, witnesses, lawyers within Iraq who are not biased?

WEDGEWOOD: Well, there will be a certain number of lawyers and judges who may have, de facto, had to join the Baath party, but were not enthusiasts. You can combine those with some of the returned exiles who may be legally trained. You can involve Iraqis as lay factual assessors, kind of like a jury person, together perhaps with an international judge to help out on the law. And hope that by this kind of balance of partialities, you get a reasonably fair trial process.

PHILLIPS: And of course you have to have a lot of evidence. We know human rights activists in the United States have collected evidence of abuses that took place in Iraq. But if you have an Iraqi-led process, do you think there's enough evidence that exists within that country, that people would have documentation of crimes that took place, or crimes these certain individuals in custody right now performed?

WEDGEWOOD: Well, there's very good documentation of what Saddam did to the Kurds in the north in the late 1980s. Sen. Kennedy's office helped to get some of those records out. They're now in the possession of an Iraqi group here in the United States. They were even going to be put online at one point. So there there's good documentation.

On the mass killings of the Shia in the south, I think it will be more a question of forensic, exhuming these terrible graves, discovering the way the people were killed, that it was a crime. Then prosecutors like to use a theory of vertical imputation, command responsibility, and what it means is that if you can show that somebody was in the chain of command, and either ordered it or should have known it was happening and should have stopped it, a kind of criminal negligence, that then they're criminally responsible.

PHILLIPS: Professor ... once the process is devised and they decide which way they want to go, the U.S. and international advisers, how long could this take? This could be years, yes?

WEDGEWOOD: I think it could take a while. For one thing, we'll want to debrief a certain number of people on weapons of mass destruction and on terrorism links. We may have to do some plea bargaining with people we may not like very much.

Secondly, it's important they be credible. And if you take tribunals, the Yugoslav tribunal as an example, a complicated trial can take six months, a year. We don't want to have the kind of summary executions we've seen in Rwanda; we're very angry at the Hutu for their genocide, and rather summarily conducted two-hour trials without a defense council. That would be a very poor example for Iraqi democracy.


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