Prosecution of Saddam must be beyond reproach

It's an exceedingly tricky matter. Iraqis understandably want him to be tried there, by Iraqis, and then to be executed for his many crimes against his own people.

But the problem with that approach is this: Saddam's supporters in Iraq, as well as many in the Arab world, would likely reject such a trial as nothing more than revenge imposed pursuant to the dictates of an American-appointed regime. And as the United States tries to build a stable society in Iraq, the stakes are too high to have Saddam viewed as a martyr rather than the mass murderer he is.

Given that reality, the best option is to try Saddam in an international tribunal like the one at The Hague currently judging former Yugoslav president Slobodan Milosevic, says Peter Galbraith, US ambassador to Croatia under President Clinton. "The alternative is to have it done in Iraq by people installed by the United States," says Galbraith. "What is going to be more credible?"

Saddam's crimes are much worse than Milosevic's. According to Galbraith, who has helped document the deposed dictator's brutality against his own people, estimates are that Saddam's regime slaughtered as many as 180,000 Kurds in the late 1980s, that it killed another 300,000 Shi'ites in the aftermath of their 1991 uprising, that as many as 50,000 marsh Arabs perished, and that another 50,000 to 100,000 Iraqis have been executed under Saddam.

It's vital for any emerging Iraqi government that the world understand the enormity of that evil. And that should mean avoiding any form of prosecution that could taint the process or allow it to be dismissed merely as the Iraqi equivalent of frontier justice.

Galbraith, who testified against Milosevic in his ongoing trial by the International Criminal Tribunal for the Former Yugoslavia, says that ongoing process, though long, has worked well.

"What was critical was for Serbs to understand that Milosevic was not defending Serbian rights but that he was responsible for major crimes," the former ambassador says. "And that is what has happened. Nobody says that it is victor's justice."

Now, there's an obvious problem here. The Iraqi Governing Council has just passed a war-crimes statute and wants to try Saddam under it. Given that, remanding Saddam over to international jurisdiction would seem like a serious slap in the face, says Samantha Power, Pulitzer Prize-winning author of "A Problem from Hell: America and the Age of Genocide" and a lecturer at the Kennedy School.

But there are also huge problems, problems that go beyond perception, with having an Iraqi court try Saddam.

It's not the evidence. That exists in the gruesome documentation kept by Saddam's police state and in the vivid recollections of victims and their families. Rather, it is the fact that there is no functioning criminal justice system in Iraq, a country that has had a despotic government for decades.

"Iraqis would like to proceed very quickly," notes Power. "But that is really hard to do when you don't have trained judges or haven't even begun to think about how to incorporate forensic evidence."

The international community, however, is versed in those issues as the result of the prosecution of Milosevic and the trials of Rwandan war criminals before the International Criminal Tribunal for Rwanda.

Sending Saddam to such a tribunal would also mark step toward reinvolving the United Nations with the US-led effort in Iraq. And, says Galbraith, it would help the world community underscore the message that "sovereignty does not protect you if you engage in genocide or other crimes."

Having such a trial would mean that the United States and Iraq would have to give up the possibility of the death penalty. But winning legitimacy is worth certain trade-offs.

"That disadvantage," says Galbraith, "is offset by having all his crimes on the record in a forum that nobody can challenge."

Scot Lehigh's e-mail address is lehigh@globe.com.