Crime and Punishment: Saddam Hussein Regime Leaders

RAY SUAREZ:

The surrender yesterday of one of Saddam Hussein's best-known officials, former deputy prime minister Tariq Aziz, has intensified the speculation about what to do with the former leaders of the regime. The hunt has been underway since the war began.

Two weeks ago, U.S. military officials issued a deck of cards to help soldiers identify the 55 most wanted. The day after the list was released, Americans got their first surrender. It was Lieutenant General Amer al-Saadi, a top scientist who headed the ministry that developed weapons of mass destruction.

So far, including al-Saadi, 12 from the 55 most-wanted are in custody. Several others not on the list are also being held. In addition to Aziz and al-Saadi the top catches are Muhammad Hamza al-Zubaydi, member of Iraq's revolutionary command council. He reportedly played a key role in suppressing the Shiite Muslims in 1991. General Zuhayr Talib Abd al- Sattar al-Naqib, head of military intelligence. Samir Abd al-Aziz al-Najim, a senior Ba'ath Party official. Muhammad Mahdi al-Salih, trade minister. And two of Saddam's half- brothers: Watban Ibrahim Hasan al-Tikriti and Barzan Ibrahim Hasan al-Tikriti. At the Pentagon today, Defense Secretary Donald Rumsfeld was asked about how the U.S. will handle the new prisoners.

REPORTER:

Mr. Secretary, when it comes to the senior regime leaders that have been captured, such as Tariq Aziz, are they considered prisoners of war? Are they subject to the protections of the Geneva Convention? Will they be visited by the Red Cross? Will they be possibly moved to Guantanamo? What's going to happen to them?

DONALD RUMSFELD:

Lots of questions. With respect to Guantanamo, the answer is no. We intend to not take people, regardless of what they're characterized as, from Iraq or from any other country to Guantanamo Bay at the moment. Could it change? Possibly. But my preference is not to. And I would guess I'd have a voice in it, and I would discourage doing that. I think that it's hard to characterize all of them in the same way. I mean, some of them may very well be people who were military. Let me…

REPOTER:

Well, say, take Tariq Aziz, for example.

DONALD RUMSFELD:

Well, let me… some of them are military, and they would be considered enemy prisoners of war. We were in a war. Some others might have been in civilian garb, like the Fedayeen Saddam, and the question is, what are they? And the lawyers will sort all that out. What we do know is that there are people who in large measure have information that we need, and we need that information so that we can track down the weapons of mass destruction in that country. We need that information so that we can track down the terrorist links between Saddam Hussein's regime and various terrorist networks. And we need it to track down other people. We need it to find records so that we can go through this process of "de-Ba'athification"- – if there's such a word– trying to eliminate the influence of the Ba'ath Party in that country. We sort out the high-value ones, and get interrogation teams working to gather that information. And clearly, Tariq Aziz falls in the latter category.

REPORTER:

Is he a POW subject to the protections of the Geneva Conventions?

DONALD RUMSFELD:

These are lawyers are going to sort through that. Was he in the military? He always… every time I was ever with him, he always wore a camouflage uniform and a pistol on his hip. Does that make him military? I don't know. He was deputy prime minister; he was, I believe, foreign minister. But the lawyers will figure that out. I don't have to worry about that stuff. (Laughter)

REPORTER:

Mr. Secretary, is the U.S. considering possible criminal charges against any of these Iraqi leaders? And if not, at the conclusion of any conflict, wouldn't they be subject to release?

DONALD RUMSFELD:

There are rules that apply to people depending on which basket they're in. It's true that when a war is over, there is a responsibility to release people who fit in certain categories but not in others. The lawyers are currently sorting through the question as to how they want to deal with this. Do they want to have some sort of a tribunal, should the Iraqi people do it, should some international organization do it, should the United States do it? I think probably the latter is not our first choice, but that's going to be decided at a higher level than this.

RAY SUAREZ:

Rumsfeld said more than 7,000 people are being held at several prisoner of war camps in Iraq. The U.S. is trying to determine which ones should be charged. About 100 have been released each day.

RAY SUAREZ:

And to help us sort out the legal questions, what international law and history say about the future of former Saddam Hussein regime leaders, we turn to two lawyers and an Iraq watcher. Diane Orentlicher is a professor of international law and director of the War Crimes Research Office at American University's Washington College of Law. Eugene Fidell is the president of the National Institute for Military Justice. And Adeed Dawisha is a professor of political science at Miami University of Ohio and has written widely on the politics of the Middle East. He was born in Iraq and is now an American citizen.

Eugene Fidell, you heard Donald Rumsfeld. We are going to leave this for the lawyers. Do you have to be a soldier or military official of some kind to be a prisoner of war?

EUGENE FIDELL:

You do have to be… you basically have it right, Ray. You have to be a soldier, member of an armed force or member of a militia-type organization that meets certain criteria. Remember, we are all had a teach-in about this in connection with the Taliban and al-Qaida detainees and there were decisions that had to be made at that time, whether any of them qualified. And to some extent, we are going to have the same kinds of issues arising out of the second Gulf War. For the Iraqi military, properly so-called, that is not much a question. That is an armed force; it's a nation state, therefore, captives would be prisoners of war. On the other hand, there may be some auxiliary units, the Fedayeen that have been referred to may fall in a different basket perhaps like the Taliban and therefore would be outside the protection of the third Geneva Convention.

RAY SUAREZ:

And people who, in other countries, would be mere politicians who, in the Iraqi context were wearing uniforms and had a weapon on their hip as Donald Rumsfeld said?

EUGENE FIDELL:

You would have to have a close scrutiny of exactly what their status was. Sometimes people effect a military uniform. And going back a ways, Winston Churchill used to wear a sort of naval uniform at times but he wasn't a member of the British armed forces. There will be, obviously, some strong indication if you see a person who is wearing a uniform who has epaulets or other insignia of rank that certainly suggests to a reasonable observer, that that person is in fact holding a military rank and exercising some military function. That person would have quite a hard time being taken out of the category of prisoners of war.

RAY SUAREZ:

Diane Orentlicher, you've got a case where a victorious invading country has swept away the previous legal structure of the previous government. Who's in charge and who's responsible for prosecuting criminals right now?

DIANE ORENTLICHER:

Those are in a sense two different questions. The United States, when it assumes full control, and it seems to be at that point of Iraq, is an occupying power and is responsible for maintaining security there. A separate question is who will prosecute those in Iraq who have committed war crimes either during this conflict or before? And that's a relatively complicated question. The United States has indicated that it plans to at this point prosecute those who committed war crimes against American soldiers during this conflict and possibly also during the first Persian Gulf conflict.

A separate question is who will prosecute those surviving leaders and others who were responsible for very serious abuses over decades of Ba'ath Party rule. And that question is very much in play right now. Obviously it will be an issue for consultation with the Iraqi people. And there are a number of options that can be pursued in that regard, and I would be happy to talk about them if that would be helpful.

RAY SUAREZ:

Right now one of the plans being reported on, Adeed Dawisha is that all crimes committed against American soldiers would be prosecuted by United States military courts but crimes against Iraqis would be prosecuted by Iraqis. Is there anybody in Iraq right now do that?

ADEED DAWISHA:

No, Not at the present. But as normalization gets along we have seen and heard from General Garner that, as services are restored, one of the things that they're going to do is create an interim government. Now, I don't know, I'm not an international lawyer or not even any lawyer, but I don't know, for example, whether an interim government can prosecute people like that or whether we need to wait for a more established kind of government that comes up as a result of democratic elections. I'm not very sure. All I know is that these people are responsible for some huge and really awful crimes against humanity inside Iraq and need to be prosecuted by someone or other anyway.

RAY SUAREZ:

Well, Professor, when you look at the 12 who have been arrested so far, are there some pretty big names, pretty close to the inner circles of power?

ADEED DAWISHA:

We have done very well. There are clusters of them. One cluster is the kind of people with public visibility. These are all very senior cabinet members. And here we've done really well because these are not just cabinet members. Most of them, in fact all of them including Tariq Aziz, the most visible of them, have been associated with Saddam and his regime for a very long time, some of them certainly since the early 1950s.

So they've been in the public eye for a… throughout the tenure of Saddam. They're close to him, they're associated with him. They're always on TV so that people always see them. And the fact that we actually caught them is good in a symbolic value, in terms of its impact on Iraqi psyche. The people will know that this is the end of the old regime as they see more and more of these very senior people being kind of caught.

On the other hand, we have other groups that are very good in giving us information. These are the military intelligence people, the Mukhabarat, they will give us the kind of information we have been seeking about weapons of mass destruction and about the whereabouts of Saddam Hussein. And also some of them are very close to Saddam, including his half brothers and his son-in-law.

So altogether I think we've done very, very well in terms of the kind of people we've caught so far and that we should not therefore shirk from the responsibility of actually putting them in front of the Iraqi people and making sure that the Iraqis know that these guys are going to pay for the kind of crimes that they have committed in Iraq.

RAY SUAREZ:

Professor Orentlicher, once someone has been interrogated, do they have to be charged with something in order for them to continue in custody?

DIANE ORENTLICHER:

Well, not during the conflict itself. Soldiers obviously can be immobilized and detained for the duration of hostilities. In the context of occupied territories, it's also possible for the occupying power to detain civilians who present a security risk. And so people don't have to be immediately released. At the end of hostilities, however, prisoners of war do need to be released unless they're prosecuted for war crimes charges. And so the United States and other and its allies, in the U.K. could prosecute even prisoners of war at the end of hostilities for war crimes committed against their own forces.

RAY SUAREZ:

So if we are looking Eugene Fidell, at a situation where it may take years to bring some of these people to trial, they could still be held without being charged?

EUGENE FIDELL:

Yes, that's absolutely right. Remember that there were still prosecutions going on in 1950, late 40's to about 1950 after War World II. So this is a process that doesn't wrap up a month after the last bullet is fired. But your question is a very interesting issue and that is, is there a concept like a material witness in the war crimes environment? And I certainly think that's a familiar enough concept, certainly in American domestic jurisprudence that I think that that would, if not abused would pass muster if you had to retain people in custody to make sure they were available to testify in a war crimes trial that may be delayed sometime after the cessation of hostilities.

RAY SUAREZ:

Since some of them were caught trying to flee the country, I guess the presumption is that they do present a risk of trying to get away.

EUGENE FIDELL:

The risk of flight is definitely there.

RAY SUAREZ:

So looking back over situations of this kind in the recent past, are military people, military leaders on the hook for the actions of their soldiers even if they didn't necessarily order those things to be done?

DIANE ORENTLICHER:

Oh, sure, absolutely. There is a very clear doctrine of command responsibility in military law and a somewhat similar doctrine for civilian leaders who fail to control the people they're supposed to control. And so senior leaders like Saddam Hussein and his two sons could be prosecuted either under the doctrine of command responsibility for failing to control their soldiers — or, as is quite likely, for actually giving orders which is a more direct kind of responsibility.

I think one issue that will come up or could come up is the United States will get custody of these people sooner rather than the Iraqi people have reconstituted their court system. And so one question that may come up that relates to the question you asked earlier is how do they sort out jurisdiction if the United States got control of a senior leader responsible for massive atrocities committed over recent decades and who is also responsible for the kinds of abuses we've been hearing about in recent weeks: acts of perfidy, policies of apparent civilians being launched on suicide attacks. Who is going to get first dibs at these people? Will the United States prosecute them first and then surrender them to Iraqis? Will they charge them in a sort of holding pattern until the Iraqi issue, question of Iraqi courts has been solved? There are going to be some complicated questions that need to be sorted out.

RAY SUAREZ:

Professor Dawisha, is that as much a political question as it is a legal one? What will satisfy the Iraqi people that justice has been done?

ADEED DAWISHA:

I was just going to say I hope that we are not going to restrict ourselves to those whom we consider to have been directly responsible for these atrocities. Again, I'm not talking in terms of matters of law. But I'm talking about in terms of politics and in terms of humanity.

Take somebody like Tariq Aziz. Now, for all I know, he is not directly responsible for torturing, killing, maiming, raping the upward of 300,000 Iraqis. For all I know, he has not been responsible… he was not directly responsible for the death of over a million Iraqis who died either as a result of internal repression or as a result of external wars. I mean, for all I know, he has not done these things directly. The fact is, that given his seniority in the political leadership and given the number of years he has been associated with it, he could not have not known. He must have known of these atrocities happening. But not only did he not do anything about it. In fact, by his public demeanor and by propagating the values and the policies of the regime internally and externally to the world where he gave this image of reasonableness and benign authority, just on these points, I would say that he is as responsible for the atrocities as the people who are directly involved.

RAY SUAREZ:

Let me get a quick response to that. Is a sin of omission, in effect, not doing anything, as culpable as Professor Dawisha suggests in a legal sense?

EUGENE FIDELL:

It can be, and thinking of the case that Professor Orentlicher was thinking of — it's General Imashita after World War II — if a person is in a position where he or she should have done something because of knowledge and the ability to control one's subordinates, that can be a basis for legal liability. On the other hand, simple knowledge and even inaction do not amount to culpability if you don't have the responsibility and the control over subordinates, and that is going to be a major issue as all these events unfold.

RAY SUAREZ:

Eugene Fidell, other guests, thank you very much.