Nov 22, 2003 By John R. Cencich 5 min read

What is the best venue in which to prosecute Saddam Hussein? Should it be an international court, an Iraqi tribunal, or a military commission? This precise question is being discussed around the world as we speak, and the issue is one certainly worthy of debate. But after having served as an international war crimes investigator at The Hague for four years I can clearly say that there is a much more important matter at hand. You cannot try someone for war crimes or crimes against humanity before a criminal investigation is complete; it is as simple as that. And these types of investigations are not finished within a matter of weeks or months – a proper investigation of Saddam Hussein could take as long as two years. In order for there truly to be justice in this case we will need aggressive prosecutors to present the evidence before brilliant judges in an adversarial proceeding, such was the case with the International Criminal Tribunal for the Former Yugoslavia (ICTY). But how is a criminal investigation of war crimes and crimes against humanity brought before the bar of international justice? Let’s take look at the world of international criminal investigation, its complexities, and the results.

In contrast with the Nuremberg war crimes trials, which were based largely upon historical records and so-called “lawyer’s evidence,” the mission relative to the ICTY, for example, is to investigate the atrocities by means of modern criminal investigation. This entails investigating the events beginning at the crime scene and continuing all the way to the top level perpetrators. If one considers the magnitude of the investigation of the Oklahoma City bombing, Pan Am 103, and the D.C. sniper, you only have the beginnings of an international war crimes investigation.

International cases are inherently complex and problematic. Investigative missions are worldwide, and evidence is typically strewn literally across the globe. It is no longer a matter of traveling from one state to another to pursue a lead. Entering another country to conduct a criminal investigation is an issue of national sovereignty that is treated very seriously; permission has to be obtained through proper diplomatic channels.

Tracking down and interviewing witnesses is another thing altogether. Virtually all interviews require the use of interpreters, and locating them around the world requires key cooperation with national law enforcement agencies and intelligence services. The potential leads can be as intriguing as the locations. Inside sources have to be developed, some of which may even be perpetrators of war crimes or have connections to traditional organized crime or terrorist groups.

Whichever body of investigators eventually takes the lead of the Hussein investigation, they will nevertheless need the help of national jurisdictions. Take a look at Kosovo for example. In July, 1999 international war crimes investigators who were conducting the investigation received assistance from agencies such as Scotland Yard, the FBI, and the German Federal Police in respect to the collection of forensic evidence. These particular investigations were hampered by booby-trapped burial sites, unexploded ordnance, and the fire bombings of areas occupied by investigative teams. The crime scenes in Iraq will be no different.

But the job of putting the cases together does not stop when the triggerman has been identified relative to a particular murder or mass murder. Now the methodological efforts of criminal and military intelligence analysts and research officers must really come together to help investigators and prosecutors link these crimes to the highest level political and military perpetrators.

Military documents, codes, and informers are all part of successfully putting together a leadership case much like a racketeering investigation in the United States. In fact, investigators at The Hague have successfully conducted several investigations of suspected war criminals including the first sitting head of state for participating in a “joint criminal enterprise.” These matters are now in the hands of the prosecutors and ultimately the court, which in the end will determine the guilt or innocence of the accused.

The same successful results can occur for war crimes alleged to have been committed in Iraq, and this brings back the original question relative to putting the cart before the horse. Who is going to conduct the criminal investigation? Undoubtedly there are some very capable Iraqi investigators, and I have personally worked with some extremely dedicated international civil servants from Iraq while in The Hague. But right now the Iraqi police are really just beginning to be trained by the U.S. as part of a new regime of law and order. If it is the Iraqis who end up taking the lead on this case, they will certainly welcome the assistance of the international law enforcement community to help bring this investigation to a successful conclusion. There is a lot of work to do. let the investigators get on with it.

John R. Cencich is a professor of Law and Justice at California University of Pennsylvania and former senior American war crimes investigator with the U.N. War Crimes Tribunal at The Hague, Netherlands.