A: I think we begin probably in the second term of the Clinton administration. At that time, there was extreme concern about Saddam Hussein getting away with the gassing of the Iranians, gassing of the Kurds, with the crimes he committed in Kuwait, and with the crimes he was committing in Iraq. The Clinton administration, essentially due to Madeleine Albright, was pushing for the establishment of an investigating commission similar to the one established in the former Yugoslavia by the [UN] Security Council, which I chaired. In fact, I was approached by the Clinton administration to see if I was willing to chair that commission as well. Being from Egypt originally, being a Muslim, they thought it was important for somebody with my experience, as well as those types of credentials, to investigate Saddam Hussein. I, of course, agreed.
A: The problem that I see here, again, is that the media and the nongovernmental organization (NGO) community are focusing on the wrong end of the trial. What is important is not whether you have a nice bench with three or five judges wearing robes and wigs, and whether the procedures follow the old Perry Mason line. The big problem that nobody is addressing -- and I emphasize, nobody so far is addressing -- is: Where is the evidence? How do you collect the evidence? Where do you put it together? Where are the investigators? Where are the trained forensic scientists?
Remember that when Baghdad was seized and the looting took place, all of the documents in the ministries were looted or burned. We've lost much of that evidence. Many of the mass graves were opened and the remains taken. We've lost that evidence. Who is collecting the evidence? Nobody is. So we are wasting our time and energy on looking at the trappings and appearances of the trial without looking at what really makes a trial work behind the scenes. At present, there are no trained personnel in Iraq -- clerical personnel, administrative personnel, investigators, forensic scientists, prosecutors. If the case is for a single murder, if we're going to try Saddam Hussein because on such a day he ordered somebody shot, then we have no problem. But if we're going to make the case for mass graves, for war crimes, for crimes against humanity, I can tell you as the one who collected the evidence in the former Yugoslavia, it takes an enormous amount of people, enormous amount of effort, and a lot of organization and know-how, which are lacking.
Q: What role should the United States and the international community play in any trial?
A: A very important role, but it has to be a behind-the-scenes role. At present, what the United States and the international community should do is help organize. This is what's lacking. There's no organizational structure. There is no building which we can call the Iraqi Special Tribunal (IST) building. We don't have judges. We need to recruit the judges. We need to start doing an intensive training program for them. We need to recruit the prosecutors and the investigators -- do an intensive training program. We need to have a place where we're going to gather the evidence.
For example, the United States government has, in Boulder, Colorado, stored over one million documents which it has scanned and which it had seized in the first Gulf War. Now, assuming the United States government will turn that documentation over to the Iraqi prosecutor, there is no place to store that documentation. There is no known computer program or operator of a computer program who can run that type of a program. So all of the problems of collecting the evidence, of organizing the evidence in what is equivalent to a complex litigation, retrieval of the evidence, ensuring the chain of custody of the evidence -- all of these questions have not been addressed. We are looking at the glamour side of a trial -- that is, how it unfolds when all of the nitty-gritty work has been done. But we are not, at this point, looking at the nitty-gritty. And none of it is being done.
Q: But if the United States is orchestrating the nitty-gritty, don't you run the risk that it will be seen as an American trial and not an Iraqi trial?
A: Absolutely. And that's why I said the United States has to do it behind the scenes. I think it's not that complicated to do. The United States has to identify a number of people. I'll give you a very simple example. Take our human rights institute [at DePaul], which has a [U.S. Agency for International Development] contract to restructure the law schools and legal education in Iraq. And we are training, in Afghanistan, 450 judges. There is no reason why the U.S. government cannot go to the private sector and task different academic institutions, nongovernmental institutions, with doing that type of training and preparation.
Q: When do you expect a trial would occur? How long will it take to bring him to trial? And how long a trial do you anticipate?
A: I think that a major policy decision has to be made as to what type of trial are we speaking of. Are we speaking of trying Saddam Hussein by himself, or his cronies? Are we thinking that the major piece of evidence against him is going to be the testimony of his cronies, or is it going to be other tangible evidence? If it's going to be the testimony of his cronies, then their trials would have to come first. That way we can use the record of their trial and what they testified against him subsequently. If we start with him and bring them in to testify against him, he can easily discredit them on the grounds that they have made a deal with the Americans to turn against him.
Is he going to be tried for 30 years of crimes, or is he going to be tried for certain selective crimes? In other words, if the selection is that on such a day he dropped chemical weapons on the Iranians, on such a day he dropped chemical weapons on the Kurds, you have, in effect, two narrowly limited events. They are easy to prove. If, on the other hand, you want to prove that in order to reach that, he has engaged in a surreptitious program of developing weapons of mass destruction, you are in for six months just to prove that point. So the problem is, you don't have a strategist for the trial. Nobody is the strategist, not on the Iraqi side, not on the American side. At this point, it's simply drifting along. You need a strategist to make those important decisions, to know then how do you proceed on a step-by-step basis.
Q: Do you anticipate that you or the DePaul Human Rights Law Institute will be called on to participate in this?
A: I'm not sure, but we are involved. In fact, we are going to Iraq on February 10th. We are going to be doing consultations with the jurists in Iraq, with the Governing Council, and with the coalition forces. And we are planning a conference on February 25th that will bring together different components of all of those who are interested in this matter in order to facilitate addressing the problems that I mentioned before.
Q: Is the Special Tribunal up to the job?
A: The Special Tribunal, as of this point, is only on paper. It doesn't exist in reality. But even on paper, it has a lot of problems. Again, this is something that is not publicly visible. The Iraqi legal system is an inquisitorial system. Their code of criminal procedure, adopted in 1971, was modeled after the Egyptian code, which is inspired by the French code. So the Iraqi system is basically the inquisitorial French system of the 1970s; not even the inquisitorial French system of today. American lawyers come into the picture and say, "We are going to superimpose the adversarial, accusatory model. We are going to have cross-examination and this and that."
None of these things exist in the Iraqi model, or in the French model, for that matter. They have what is known as a judge of instruction. And the judge of instruction is the one who collects the evidence. Once the judge of instruction gathers the evidence, puts it together, and presents it, that evidence is conclusive at the trial. So your cross-examination right isn't going to do any good, because the evidence is introduced, and that's it. You don't have a right of cross-examination at the level of the instructional gathering.
The problem is that the Iraqi and American jurists who put the final touches on the IST are not really experts either on the Iraqi law or on the French law. And so when they superimpose those American adversarial, accusatory [models] and the international human rights process, they are largely incompatible. Nobody knows how to reconcile them. So now everybody is trying to scurry around to say, "What we need are rules of procedure and evidence for the IST, and maybe we can solve some of these problems within this context." But it has not yet happened.
Q: What about Iraq's former deputy prime minister, Tariq Aziz?
A: Tariq Aziz reminds me a little bit in the Nuremberg trials of Franz Von Pappen, the foreign minister of Germany. He was a diplomat. He did what he was told. But he sat in on all of the meetings of the High Command Council. And certainly, on the basis of both Nuremberg and Tokyo, even though it was not within his direct responsibility, [Aziz] participated in those decisions in which it was decided -- or at least the commander, Saddam Hussein, ordered -- that certain people would be killed or exterminated. Certainly by ordinary standards of complicity, he is in up to his neck. But Tariq Aziz is one of the 32 persons who have been arrested from the infamous deck of cards, with whom I have good reasons to believe the U.S. made a deal. This is one of the problems of trying those people after the Saddam trial, because all of them, I believe, have been promised some degree of leniency or plea bargain if they would have told the U.S. where the weapons of mass destruction were and other intelligence information. In fact, to prove the point, when Saddam was captured, the first person that the American troops brought to identify him was Tariq Aziz.
Q: You talk about different procedural rules between the United States and Iraq. What everybody would hope would come out of any trial would be a sense of justice. But the Iraqi sense of justice and the western sense of justice are not the same.
A: That's not true. It's not the sense of justice that is different. It's what the sense of justice addresses. We look at what happened in Iraq from a different perspective than the people themselves there. We look at it from the outside, based on what information we have. We think it's a bad regime that had weapons of mass destruction. We are strongly influenced by the fact that Saddam Hussein sent Scud missiles against Israel. These are the things we see.
The Iraqis see it differently. The Iraqis see it as a bad regime which arbitrarily arrested people, which tortured people, which killed people, which took away people's property, which deprived people of a good life, which at the time of the sanctions forced them to support the regime because that was the only way that they could get the ration books to survive. So in addition to a great deal of anger against the regime, there is a great deal of resentment against the West. There is a great deal of resentment against the U.S., which has imposed the sanctions regime for 10 years and which, in a perverse way, has solidified and strengthened Saddam, because the people were starving and Saddam was the only one who has food, and they had to go and get their food from him, they had to support him and do what he wanted. And they blame the West for it.
So their sense of justice is not going to be to only blame Saddam. They are going to want to see the West blamed for what they did. They are going to want to say, "For 30 years we had to suffer this tyrant. And you in the West didn't utter a word and accepted that because he was selling you oil. And you are complicit. You have a moral responsibility." Justice to them will require bringing out these facts as well.
Q: Are you optimistic or pessimistic about the future?
A: There is a problem that is very solvable. It's a matter of organization, planning, and rebuilding the structure. It's nothing that a good legal architect and legal builder cannot do. The problem, however, is that there is no one in the United States who has the final say-so. Paul Bremer has something to say about it; the Department of Defense has something to say about it; the National Security Council, Department of State, Department of Justice -- you have different bureaucracies, each one saying something. You don't have, in effect, a "justice czar" who says, "I know what it takes to rebuild a system of justice. I know what it takes to run a court system like this, and I'm going to do it." There's certainly no one in Iraq to do it. If the situation remains as it is, I think it's going to be a bungled deal. For certain politicians, including in the United States, it may not be that bad, because a botched-up trial of Saddam Hussein which ends up fast with his execution prevents the discussion of the issues of complicity.
The joke on the streets of Iraq is that the United States is right to say that Saddam had weapons of mass destruction. And the joke goes on to say, "Do you know why?" And the answer is, "Because the United States has the receipts for all of the things they sold him."
Read the related R & E interview with Donald Shriver
