THE BUSH WHITE House’s muddy international-justice policy undoubtedly has plagued US efforts to lead on larger war-crimes issues. Yet even if American war-crimes policy were crystal clear and thoroughly consistent, bringing Saddam Hussein to trial for his years of flouting the conventions of war and committing genocide would still be a complicated task.

The ICC, for example, would be of little help. The court took effect on July 1, 2002, and is empowered to hear cases involving only crimes committed after that date. Consequently, it could hear none of the evidence against Saddam described in Power’s book and cited by the Bush administration as among the rationales for attacking Iraq. Also, as one of the seven countries that didn’t sign the Rome Treaty, Iraq is most likely beyond the ICC’s jurisdiction. Under ICC rules, non-signatory countries must agree to accept the court’s jurisdiction.

As the executive director of INDICT, Charles Forrest has put a great deal of thought into not only the case against Saddam and 11 others — including ubiquitous Iraqi deputy prime minister Tariq Aziz (a prominent Iraqi spokesperson during the Gulf War) and Ali Hasan al-Majid (who oversaw the genocidal campaign against the Kurds described in such detail by Power) — but also the manner in which they might be brought to justice. Reached at INDICT’s London offices by telephone, Forrest observes that his organization had originally campaigned for an independent tribunal created by the UN Security Council along the lines of the tribunals created for the Balkans and Rwanda. In the multiplicity of UN resolutions concerning Iraq, however, such a tribunal has never been created — and Forrest despairs of the Security Council’s doing so now. "A specific tribunal for Iraq is just not practical," says Forrest. "It’s too expensive, and there is no willingness in donor countries to fund that again." He also concurs with some of Prosper’s criticisms of the existing UN tribunals, citing the fact that fewer than 20 cases have been tried in the ICTY. "It’s proven to be totally unwieldy," he observes.

Eschewing the UN-tribunal approach, INDICT cites the 1988 arrest of former Chilean dictator Augusto Pinochet in Great Britain in response to a warrant issued by a Spanish judge who wanted the leader of Chile’s violent US-supported 1972 coup (and ruthless suppressor of that country's left-wing opposition) to appear in a Spanish court to answer charges. To date, INDICT has filed charges against Iraqi leaders in Britain and a number of other European countries in hopes of a similar result.

Yet Forrest notes that the looming specter of war and regime change has caused INDICT and other groups with similar aims — including a group of expatriate Iraqi lawyers and judges who have formed the "Transnational Justice Working Group" — to start planning for the possibility of homegrown justice for Saddam and his cohorts.

Forrest says they’ve "discussed all the different options," but he observes that "Iraqis want to see this done in Iraq, under Iraqi law." Forrest concedes that such a homegrown effort would require "substantial technical assistance" from outside the country, but he adds that "Iraq has a long legal tradition" rooted in European jurisprudence — specifically, the French tradition, since Iraq’s civil law is based on the Napoleonic code.

"The fundamentals are all there," Forrest argues. The key to an Iraqi trial, he says, would be that "the defendants would have the opportunity to defend themselves ... and that the proceedings would be open and transparent." Yet Forrest notes that any option for trying Saddam would be an imperfect instrument in the eyes of one party or another. "Any time you do this," he says, "people are never going to be fully satisfied."

Considering the depth of international opposition to the White House’s Iraq policy and its stance on the ICC, war-crimes trials organized and conducted unilaterally by the United States or by the "coalition of the willing" might be the least satisfying option. But since one of the options on the post-Saddam table is a military governorship, such an approach (accompanied by inevitable charges that the US is imposing "victors’ justice" on Iraqis) can’t be ruled out.

Samantha Power argues that "if the Bush administration takes this on themselves, it will only come off as a show trial, no matter how credible its tribunal becomes. There is no way that [the US] can be seen as a neutral arbiter of justice."

A US-run trial along the lines of the Nuremberg Court is still an option, but Prosper says that no firm decisions have been made on what mechanism will be used to bring Iraq’s leader to justice. "We’ve been studying this issue very carefully," says Prosper, "and where we are in our decision-making process is that we’re keeping the focus on the issue at hand right now, which is the disarmament process.... Then, clearly, if Saddam does not disarm, then the question of the war-crimes issue becomes more and more relevant. We want to see a process in a free Iraq that has a strong Iraqi role, and co-leadership in that process. We are prepared to provide any support in that process that would be necessary."

NOWHERE HAVE American inconsistencies in international-justice policy produced more ill will than in the Balkans. This ill will also speaks to larger issues that confront the United States as it weaves war-crimes policy into the larger fabric of its foreign policy.

The Nuremberg trials were conducted in an atmosphere created by Nazi Germany’s unconditional surrender. The victors had a clear path to craft a new standard of international justice. Though the UN’s Rwanda tribunal proved problematic, the civil-war victory of Rwanda’s Tutsi minority over the Hutu majority, who had killed 800,000 mostly Tutsi people, made that nation’s path to justice less politically fraught than the one facing the fragmented nations involved in the Balkans tribunal.

The 1995 Dayton Peace Accords between three ethnic communities — Bosniak, Croat, and Serb — ended not one, but two wars. Atrocities, war crimes, and genocide were committed not only by Serbs attempting to carve a "Greater Serbia" out of Bosnia and Croatia between 1991 and 1995, but also by Bosniaks and Croats who fought each other for a period between 1993 and 1995. Add in the decade-plus of Serb repression of the Albanian majority in the province of Kosovo — which culminated in the Serbian attempt at ethnic cleansing and the NATO bombing of 1999 — and you have a series of messy conflicts with few clear victors.

The democratic ouster of Serb president and indicted war criminal Slobodan Milosevic in October 2000 did tidy the picture, but cooperation between the nations involved in the conflict and the ICTY remains uneven — and, at times, downright recalcitrant. Milosevic’s 2001 extradition to The Hague under a looming deadline for the cut-off of American foreign aid to Serbia created strong feelings among even some staunch reformers that the much-loathed dictator was "sold to the West for foreign aid."

Prosper threatened aid cut-offs again during his January visit to Serbia and the Serb-controlled portion of Bosnia-Herzegovina to win more arrests and extraditions. But it is US efforts to obtain what are known as Article 98 waivers — or "impunity agreements" ensuring that American personnel will not be subject to ICC prosecution — from countries that it prods toward compliance with the ICTY that have truly heightened cynicism.

Balkan cynicism about (and lack of cooperation with) international justice continues in the face of recent US calls for winding down the ICTY, even as both the US and the European Union reduce their expectations that Balkan nations will cooperate with the ICTY. Croatia, for example, recently won its pitched battle with The Hague over the necessity of extraditing a popular but ailing general charged with war crimes when Croatians retook the Krajina region, in 1995.

Even Prosper’s most recent visit to Serbia in late January, during which the number of indictees that Serbia must turn over to receive US aid was cut from 10 to three — Bosnian Serb general Ratko Mladic (responsible for the siege of Sarajevo and the 1995 massacre at Srebrenica) and two other indicted war criminals involved in massacres near the Croatian city of Vukovar in 1991 — met with resistance. Serbia’s reform-minded prime minister, Zoran Djindjic, promised that he would make an effort to comply, but also told independent radio station B92 that the loss of US aid "would be no tragedy" for Serbia.

Prosper says that Balkan countries do raise the ICC and the Article 98 agreements with him, but he says that such questions "force me to articulate clearly what the differences are between the two enterprises, if you will, and what various international obligations are." He hews closely to the White House position that differentiates the two courts. "The cooperation with the Yugoslav tribunal is obligated by the UN charter," notes Prosper. "The ICC is not a UN organ, but a treaty-based court that places obligations on the parties to the treaty — rather than the world at large."

Yet the world at large is watching. Even if the looming crisis in the Persian Gulf ends in the way that the Bush administration would most like — with a new, democratic, and disarmed regime in Iraq and Saddam Hussein called to account for decades of brutality — the question of US policy on international justice seems certain to be dogged by uncertainty and contradictions that will hurt larger US interests.

Power argues that the Bush administration would like to keep world attention focused on Iraq, but she notes that even when it comes to a single strand of US foreign policy such as war crimes, "every à la carte decision that the administration makes is being viewed as a totality. There are concerns in other areas. I don’t think there’s a way to keep Iraq in the box. That’s how they’ve debated this, when actually the debate is the larger issue. You can’t take universal principles and apply them today, and then eschew them tomorrow."

Richard Byrne can be reached at richardbyrne1@earthlink.net