A UN-Iraq trial of Hussein: No death penalty?

In hailing the end of a "dark and painful era" in Iraq with the capture of Saddam Hussein on Dec. 13, President Bush said that the Iraqi dictator would "face the justice he denied to millions." How that justice is to be carried out presents the Bush administration with a dilemma - and an opportunity.

The dilemma arises from the confusion and disagreement about who should try the Iraqi dictator. The week before his capture, the American- appointed Iraqi Governing Council issued regulations providing for the naming of a five-member tribunal, empowered to try war crimes and crimes against humanity.

This was done with American encouragement, but the United Nations does not recognize the Governing Council as a government, and therefore questions its ability to create such a tribunal. There is also a dispute about whether the death penalty can be applied - favored by the Bush administration and its Iraqi friends, but opposed by the UN and most of the world.

Defense Secretary Donald Rumsfeld made the puzzling statement that Hussein would be "treated according to the Geneva Convention and given the protections of a prisoner of war."

If that were so, then Hussein's rights have already been violated by the circulation of humiliating pictures of him and he could theoretically respond to interrogation by refusing to give more than his name, rank, and serial number. Pentagon officials later said that Hussein's status could change if it were established that he was involved in attacks on civilians after major combat was over.

As to the trial, leading members of the Governing Council have altered their position and now say that there should be some form of international involvement in the judicial process. President Bush, at his news conference last Monday, also talked of developing a system to try Hussein "that will stand international scrutiny."

At a time when former Secretary of State James Baker is trying to reduce Iraq's $120 billion foreign debt, the Bush administration has an opportunity to start patching up relations with countries such as France, Germany, and Russia, offended by being barred from bidding on reconstruction contracts in Iraq.

Human rights organizations point to the so-called "hybrid courts," created under UN auspices for countries like Rwanda, Sierra Leone, and Cambodia, in which international judges sit side by side with local judges.

Iraqi judges sitting side by side with, say, an American, a French, and a German judge would be a promising start in restoring a measure of American cooperation with its one-time friends and allies. But the price may have to be waiving the death penalty.

Daniel Schorr is a senior news analyst at National Public Radio.

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