Storm clouds are brewing over one of the most sensitive aspects of Iraq's reconstruction, as the Iraqi Governing Council clashes with the US-led Coalition Provisional Authority over how to put members of the former regime on trial for the atrocities of which they are accused.
At the heart of the dispute currently unfolding behind closed doors, say Iraqi and CPA officials, is the council's insistence on bringing large numbers of former Baathists before a special war- crimes tribunal, and on imposing the death penalty.
That risks paralyzing the planned court by burdening it with more cases than it could handle, and depriving it of support from European members of the coalition who oppose the death penalty, warn critics of the council's approach.
"If they do this as broadly as they want to, the whole thing would collapse," argues one CPA legal adviser. "We want this to be a special tribunal for special people."
The prospect of a death penalty, meanwhile, though widely popular among Iraqis, would repel European nations who might otherwise offer technical and legal assistance to the court, thus giving it wider international credibility. "The whole European Union would be strongly against any tribunal that could end in hanging people," says a European diplomat here.
Plans for a tribunal have been under discussion for several years among human rights organizations and opponents of Hussein's regime, with a view to bringing to justice those responsible for war crimes and crimes against humanity during chemical assaults on Kurdish villages, the suppression of Shiite Muslim uprisings, the invasion of Kuwait, and other incidents.
Since the war ended last May, the US Army has taken control of eight miles of official dossiers thought to contain evidence that could be brought before a special tribunal, and secreted them in a secure location in Baghdad.
Researchers wanting to sift through those files, and to begin forensic work at some of the 153 reported mass grave sites, however, have so far been hamstrung by a lack of money to pay for such work, CPA sources say. They are also waiting for the war-crimes court's statute, which will set out its jurisdiction, to be finalized by a committee named by the Governing Council.
The statute is due to be presented for approval by CPA chief Paul Bremer within the next few weeks. It is expected to cast a wide net, well beyond the 55 figures on the "most wanted" list that US authorities published as a deck of cards.
"We cannot say yet exactly how many suspects" will come before the court, says Judge Dara Noor Alzin, the Governing Council member who heads the drafting committee. "It could be in the hundreds: the ones who planned the crimes, the ones who ordered them, and the ones who carried them out must all be put on trial."
That conflicts with the approach that CPA legal advisers are advocating. They point out that the Nuremberg tribunal at the end of World War II tried only 23 cases, and that the Yugoslav war-crimes tribunal in The Hague has indicted less than 100 people since it was created eight years ago.
"Let's go for the worst of the worst, with a few symbolic cases covering the best geographical and temporal spread possible," argues one CPA official. "We are looking for easy wins that sell themselves," such as Ali Hassan Majid, known as "Chemical Ali" after the chemical bombing of the Kurdish village of Halabja, in which 5,500 people died.
As it currently stands, the draft statute rejects calls from foreign human rights organizations for the inclusion of international judges on the court's panel.
"The reality is that [Iraqi judges] have not had the experience in the kinds of extremely complex criminal cases" raised by accusations of war crimes, crimes against humanity, and genocide, argues Richard Dicker, head of the international-justice program of Human Rights Watch.
"These crimes were committed by Iraqis against Iraqis in Iraq, so we prefer Iraqi judges in Iraqi courts" to deal with them, explains Judge Alzin. The statute will, however, provide for experienced foreign judges to advise the Iraqi panel, and for international investigators to supervise the collection of evidence, he says.
That kind of international support for the court, says Mr. Dicker, is "absolutely essential" to avoid the impression that it will be dispensing "victors' justice." "They cannot do this simply with US support," he says. "If you have the occupying power playing a very prominent role it will diminish the credibility and legitimacy of this effort."
It is uncertain, however, where experienced foreign advisers and supervisors will come from if the court statute includes the possibility of the death penalty. The death penalty is suspended in Iraq, by order of Mr. Bremer, but it is overwhelmingly popular among both ordinary Iraqis and their political leaders, and would almost certainly be reinstated by an elected Iraqi government.
European signatories to the European Convention on Human Rights are bound to oppose the death penalty. Coalition partners such as Britain, Poland, Spain, and Italy would be forbidden by the convention from handing over prisoners to a court with the power to sentence them to death.
Nor is any European nation likely to involve itself with such a court in any fashion, says Jeroen Schokkenbroek, a human rights official with the Council of Europe in Strasbourg. "It would fly in the face of European Union foreign policy, which includes opposition to the death penalty, to contribute to setting up a mechanism by which the death penalty could be applied," he points out.
Some officials suggest that in light of this problem, the Governing Council might yet revise its position. "The statute is going to involve [the Iraqis] dealing with international pressure because they need international help" says David Hodgkinson, head of the CPA's Transitional Justice team. "Maybe they will consider it useful to reconsider the death penalty."
Once the statute has been approved by Bremer, and money has been found to pay for the tribunal's work, plans are in place to hire more than 100 investigators to dredge through the evidence and build cases for the prosecutor.
Much evidence has already been gathered and processed, but Iraqi and US officials say it is likely to be a year before any trials start.