ON JANUARY 19, during an appearance on Fox News Sunday, US Secretary of State Donald Rumsfeld hinted that he’d prefer to end the Iraq crisis through peaceful disarmament or with Saddam Hussein opting to "leave the country."

Fox News Sunday host Tony Snow pressed Rumsfeld further, asking, "Do you seriously think this is a guy who will pack up and go someplace else and live in a luxurious exile?"

"I hope so," replied Rumsfeld. "I would certainly prefer it."

Later that morning, on ABC’s This Week, Rumsfeld told host George Stephanopoulos that "I would be delighted if Saddam Hussein threw in the towel, said, ‘The game’s up, the international community has caught me, and I’ll just leave.’"

Stephanopoulos also followed up: "And if he did that, would the United States be willing to give him immunity, say, from war-crimes prosecutions?"

"Well, I’m not in the Justice Department or in the White House," Rumsfeld observed, "and those are questions for them. But if — to avoid a war, I would be, personally ... [I] would recommend that some provision be made so that the senior leadership in that country and their families could be provided haven in some other country. And I think that that would be a fair trade to avoid a war."

On other Sunday chat shows that day, US Secretary of State Colin Powell and National Security Adviser Condoleezza Rice also dangled the prospect of asylum. In essence, top White House officials offered Iraq’s leader a chance to ease on down the road taken by Uganda’s thuggish dictator Idi Amin, who, during his eight-year rule, killed 100,000 of his own countrymen and harbored terrorists. Deposed in 1979, Amin now lives in luxurious exile in Saudi Arabia and has never been held accountable for his brutal crimes.

When the White House floated the "Idi Amin option" in mid January, it came as a surprise to many observers. After all, Saddam’s own war crimes — against his own people, against Iran in the savage war fought in the 1980s, and against Kuwait in Iraq’s occupation of that country in 1990 and 1991 — are far worse than Amin’s transgressions.

But the "Saddam-nesty" offer was more surprising because these crimes (including the systematic use of chemical weapons to commit genocide against Iraq’s Kurdish population) have figured in the White House’s public case for military action against Iraq — and its prominent calls for Saddam and other Iraqi leaders to face justice. Since as early as October 2002, the Bush administration has trumpeted its preparations to bring Saddam to justice, and the US government has funded private groups — including the UK-based organization INDICT (www.indict.org.uk) — to compile dossiers on leading Iraqi leaders for war-crimes trials. In fact, mere days after Rumsfeld, Powell, and Rice floated the immunity trial balloon, President Bush was back to the tough talk about Iraqi crimes that would figure so prominently in his January 28 State of the Union address. On January 22, Bush threatened war-crimes trials for Iraqi leaders who employed chemical or biological weapons, warning them that "when Iraq is liberated, you will be treated, tried, and persecuted [sic] as a war criminal."

Cushy exile? War-crimes trial? This mixed American message can’t help but sow confusion. US Institute of Peace senior fellow and 1993 Pulitzer Prize winner Roy Gutman notes that the Bush administration’s recent statements on Saddam’s war-criminal status have indeed muddied the issue. "On the one hand," says Gutman, who also heads American University’s Crimes of War Project, "they say they want to have a settling of scores. On the other hand, they are offering Saddam an amnesty via the media. They are two contradictory choices with vastly different implications — and they have in no sense indicated which one they’re choosing."

Even those who strongly support the notion of holding war criminals to account find it hard to completely dismiss the notion of giving amnesty to Saddam, since it might save thousands of lives. Samantha Power, the former executive director of the Carr Center for Human Rights Policy at the John F. Kennedy School of Government, is author of the new book A Problem from Hell: America and the Age of Genocide (Basic Books), which offers a scathing and powerful indictment of American inaction in the face of numerous 20th-century instances of genocide. In fact, one of the most affecting chapters of A Problem from Hell deals directly with Saddam’s genocide against the Kurds in the late 1990s. (In one of the book’s most chilling asides, Power relates the "hideous lack of irony" in US chemical companies calling Senate staffers to gauge how their products would be affected by sanctions voted against Saddam for his use of chemical weapons against the Kurds.) Power agrees that the amnesty trial balloon "completely expose[s] that this war is not being fought on human-rights grounds." But, like Gutman, she is torn. "If a war and incredible atrocity can be staved off by immunizing Saddam against prosecution," says Power, "one has to say, ‘Gosh, that’s probably better.’ It seems crass to sacrifice lives on the altar of even a righteous principle."

THE BUSH administration’s war-crimes point man is US Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper — a former prosecutor who also served with the United Nations International Criminal Tribunal for Rwanda (ICTR) from 1996 to 1998. Prosper has a knack for attracting attention to the war-crimes issue. He’s even knocked on the door of indicted war criminal Radovan Karadzic’s mother. The former Bosnian Serb president remains wanted for crimes committed during his tenure, and Prosper’s house call was an attempt to pile more pressure on Karadzic to turn himself in to the International Criminal Tribunal for the former Yugoslavia (ICTY). Karadzic has yet to do so — even after Prosper’s canny publicity stunt.

Prosper has mastered the medium of getting attention, but the message he carries can be charitably described as "mixed." On the question of "Saddam-nesty," for instance, Prosper walks the public trial balloon back to a place closer to the tough White House rhetoric about Iraq’s dictator. "I won’t get into too much detail on this issue," Prosper tells the Phoenix, "but I think the key is to go back and look at the language that was used by [Rumsfeld and Powell] in the discussion that came up. They used the word ‘exile,’ and not ‘amnesty’ — and I think you should use that as guidance."

Current contradictions in US policy on war crimes and international justice extend back to the Clinton administration and beyond. The United States helped create the ICTR as a response to genocide in Rwanda and the former Yugoslavia, yet in 1998 the US voted against the "Rome Treaty" that established the UN’s International Criminal Court (ICC). President Bill Clinton halfheartedly signed the treaty at the end of his term, but the Bush administration rescinded his signature within months. President Bush also signed a virulent piece of anti-ICC legislation passed by the US Congress shortly after the court opened its doors in July 2002.

Its own anti-ICC position notwithstanding, the White House has exerted financial and other diplomatic pressure to strong-arm countries such as Serbia and Montenegro and Bosnia-Herzegovina to turn over defendants indicted by the ICTY. (Slobodan Milosevic’s extradition to the ICTY was coerced by strong US pressure.) Yet Prosper has publicly criticized the professionalism of both ad hoc UN tribunals — and the US has pushed hard to obtain waivers from individual countries (including those above) to provide blanket immunity to US military personnel from indictment by the ICC.

In its World Report 2003, Human Rights Watch noted the inconsistencies and concluded that the ICC was subject to "systematic attacks by the United States." The report added that the US was one of only seven nations (including China, Iraq, Israel, Libya, Qatar, and Yemen) to vote against the Rome Treaty, and specifically mentioned Prosper in its critique of the US’s rescinding its treaty signature. "While US Ambassador for War Crimes Issues Pierre-Richard Prosper claimed the administration was ‘not going to war’ with the court," the report noted, "this renunciation of the treaty paved the way for a comprehensive US campaign to undermine the ICC."

Human Rights Watch director Kenneth Roth voiced the critique in even stronger language in a July 2002 op-ed in the Financial Times. "An increasingly influential faction in the Bush Administration," Roth wrote, "believes that US military and economic power is so dominant that the US is no longer served by international law.... No effective global system can rest solely on coercion. Global order depends on most governments abiding voluntarily by shared norms. Exempting America from the rule of law undermines those norms, leaving a more violent and inhumane world."

Prosper argues that, to the contrary, the United States does provide leadership on war-crimes issues. "When it comes to war crimes at large, we play a leadership role throughout the world," he says. "I think everyone wants to hear what the United States’ view is on these issues, regardless of the varying positions on the ICC, because people do see things happening on the basis of the leadership role that we are playing. Indictees are being sent to The Hague on the basis of policy that we initiated years ago to get the action that we needed. In Rwanda, we have the Rewards for Justice campaign that is getting [indictees] into the proper forum.... People will listen to what we have to say and look for the view that the US expresses on this to make their respective decisions."

Yet one big war-crimes decision looms large — and is sure to intensify in coming weeks: if Saddam refuses to follow Idi Amin into comfortable exile, just how will he be brought to account for his crimes? And more important, will a victorious "coalition of the willing" (as the Bush administration describes the nations willing to invade Iraq without UN approval), led by a United States with a muddled and contradictory stance on international justice, be the right party to shape that trial?