Next: Trying Iraqi leaders for war crimes

With more key figures detained, a key question is which nation will prosecute.

By , Staff writer of The Christian Science Monitor

With six of the "most wanted" Iraqis in custody, one of the most important and sensitive phases of the US-led regime change is drawing near: prosecutions for war crimes.

For the US, such trials represent an opportunity to seek justice for incidents that injured Americans. It is also a chance to remind the world - including nations that opposed the use of military force against Iraq - of the brutal nature of Saddam Hussein's rule. And for Iraqis, tribunals open a forum for coming to terms with a repressive past.

But those diverse objectives are already raising a tricky question: Who should take the lead in prosecuting key figures in the Hussein regime?

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American officials have pledged that Iraqis will take the lead in bringing their own to justice. But the US has reserved the right to punish those responsible for crimes against its troops during this war and the 1991 Gulf War - a category that could swallow up many of the most wanted.

"It is quite likely we would take all the big fish," says John Kunich, a law professor at Roger Williams University in Bristol, R.I. This would mirror the pattern set after World War II, when the allies tried the Japanese and German high command, and left lower-level officials to be tried by their own countries.

Already, US officials have alleged that Iraqi soldiers violated the Geneva Conventions by filming US troops captured during a March 23 ambush, using white flags to feign surrender before attacking coalition forces, and potentially executing US soldiers.

Allegations from 1991

The US alleges that during the first Gulf War, Iraqi soldiers physically abused and tortured US prisoners of war, deprived them of food, and forced them to read propaganda statements, says W. Hays Parks, special assistant to the Army's Judge Advocate General.

"We will investigate and we will prosecute," said Pierre-Richard Prosper, the US Ambassador at Large for War Crimes Issues, at a Pentagon briefing this month.

The US says it could prosecute perpetrators of those crimes in a range of venues, including a military tribunal (the venue used in past war-crimes cases), military court martial, and civilian court. One arena the US says is not available: the International Criminal Court, which neither the US nor Iraq ever ratified.

Already, a few of the Iraqi fugitives whose faces adorn playing cards issued to US troops have surrendered or been captured. On Sunday, Hussein's sole surviving son-in-law, Jamal Mustafa Abdallah Sultan, gave himself up. He served in Hussein's special security organization and as deputy head of tribal affairs. Coalition forces also seized Hussein's minister of higher education and scientific research, Abd al-Khaliq Abd al-Ghafar, ranked 43 on the list of 55 most-wanted Iraqis.

Among others already in custody: Finance Minister Hikmat Mizban Ibrahim al-Azzawi; top weapons advisor Lt. Gen. Amir al-Sadi; Hussein's half-brother and top adviser, Watban Ibrahim Hasan; and Baath Party official Samir Abd al-Aziz.

Many of the captured officials may qualify as prisoners of war under the Geneva Conventions since they, like Hussein, were also members of the armed forces. But being initially classified that way won't protect them from prosecution for war crimes later.

High-ranking military officials who didn't order atrocities or even know they occurred cansometimes be held responsible.

After World War II, one Japanese general was ordered executed by a US military tribunal that found he should have known and stopped his troops from committing illegal acts. "It should cause [the Iraqi officials] to be gravely concerned," says Mr. Kunich.

Iraqis prosecuted by the American military can appeal to US military and civilian courts - including the Supreme Court - but will have no recourse to any international legal body, says Eugene Fidell of the National Institute of Military Justice.

6,800 prisoners of war

Still, for those captured so far, prosecution may be less important to the US than the information they may provide about other wanted officials and Iraq's weapons programs.

For now, most of the roughly 6,800 low-level prisoners are being held at a facility near Umm Qasr in southern Iraq. US military officials have begun to hold hearings, as required by the Geneva Conventions, to determine their legal status.

The Defense Department says coalition forces have already released 900 prisoners determined to be noncombatants.

But others could be classified as unlawful combatants, like many of the prisoners of the Afghan conflict now detained at the US Navy base in Guantanamo Bay, Cuba. They lack the protections given to national soldiers and could be prosecuted for illegally killing Americans on the battlefield. The trickiest fighters to categorize will be fedayeen militiamen, who were not part of the regular Iraqi Army.

The US must vie with other players interested in prosecuting Iraqi soldiers and government officials, including the Iraqi people themselves, as well as Iranians, Kurds, and Kuwaitis. Kurds, for example, likely want custody of Hussein's half-brother, Barzan al-Tikriti, the former director of intelligence and the Iraqi General Security Directorate, who is suspected of ordering the execution of several thousand Kurdish men.

Potential violations against the Iraqi people may include executing deserters, using civilians as human shields, placing military weaponry in civilian structures such as hospitals or mosques, and coercing Iraqi civilians to fight at gunpoint or by threatening their relatives.

Complicating any prosecution, say legal experts, is the fact that some may argue the US tacitly supported Hussein's regime during much of his rule, authorizing the 1980s sale of substances that can be used in chemical weapons.

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