Trying Saddam Hussein

RAY SUAREZ:

What kind of tribunal? What country? And what punishment? These are among the legal issues involved in a prospective trial of the former Iraqi dictator. To explore these and other questions, we get three views.

Feisal Istrabadi is vice president of the Iraqi Forum for Democracy. He served on a State Department advisory group before the war, and now advises a member of Iraq's Governing Council. Diane Orentlicher is director of the War Crimes Research Office at American University's Washington College of Law. And Paul Van Zyl is a director at the International Center for Transitional Justice. It helps countries dealing with human rights abuses. From 1995 to 1998, he was executive secretary of the Truth and Reconciliation Commission in South Africa.

Well, what is the governing law in this case, Professor Orentlicher? What are the rules governing what Saddam's status is at this point?

DIANE ORENTLICHER:

It's actually quite complex. There's a multiple layer of laws that apply to him. He's in detention in an occupied country. There's a treaty that deals with the laws of occupation. He is also apparently a prisoner of war despite the hedging by Secretary Rumsfeld and so he's entitled to the protections of a separate convention that regulates treatment of prisoners of war.

Once he is surrendered to an Iraqi authority, he will be subject to a different body of law which is yet to be determined pursuant to which he may be prosecuted. It is also possible that he will be prosecuted by the United States which has reserved the right to bring charges against him presumably stemming from the Persian Gulf conflict and meanwhile several other countries have indicated that they would like to bring charges against him including Kuwait and Iran.

It's actually a very complicated legal picture. The resolution of this will obviously be driven more by politics than law, but the legal landscape is fairly complex.

RAY SUAREZ:

Paul Van Zyl, the secretary referred to "standing" in this case. What is "standing" and how do you establish it when, as Professor Orentlicher suggests, the details are kind of murky.

PAUL VAN ZYL:

Well, precisely. I think one of the difficulties here is that it's not even clear that the Iraqi special tribunal, the announcement of which was recently made, is, in fact, a lawful entity and is capable of being established. International humanitarian law places restrictions on the ability of occupying powers to amend the domestic criminal code of the country that they're occupying.

And so there is a legal question about whether this Iraqi special tribunal is, in fact, entitled to prosecute Saddam Hussein for the gross violations of human rights that he's committed. And so we have a set of legal conundrums we have to face but much more importantly there is the question of legitimacy. We have to establish a tribunal that enjoys legitimacy with the widest possible group of people both in Iraq and internationally.

RAY SUAREZ:

Well, Feisal Istrabadi, earlier in the broadcast we heard from a reporter in Baghdad talking about the near universal clamor, the desire, that he — that Saddam Hussein be tried in Iraq by Iraqis. I guess time frame becomes key here. The United States has indicated they'll hold him for a while and what kind of shape the Iraqi government is in to be handed off to, I guess, becomes an issue early next year.

FEISAL ISTRABADI:

Yes. Well, you know, on this issue of legitimacy and so on, I mean, I'm actually stunned to hear the complaints of the international human rights community. Saddam Hussein's courts have been operating for 35 years handing down horrendous punishments for minor crimes, imposing the death penalty for minor almost for misdemeanors and I have not heard any outrage on the part of the international human rights legal community, nor a questioning of the legitimacy of the courts of Saddam Hussein.

As far as the people of Iraq, we may disagree on very many things. And we have a different vision, many of us, for how we want the future to unfold and that is healthy in any country which aspires to become a democracy. But to a man and to a woman, we are united, that we, the first victims of Saddam Hussein, the most numerous victims of Saddam Hussein, must have the right to try him in our own courts with our own judges and our own prosecutors.

I could not imagine someone making an argument that the state of Israel does not have the right to try the perpetrators of the Holocaust in their national courts. It's an atrocious suggestion that the people of Iraq ought to forfeit the right to try the man who has brutalized them for 35 years and who is responsible for the deaths of 10 percent of the people of Iraq. Two million of our fellow citizens have been killed or have died as a result of this regime. We have the right to try Saddam Hussein. We are his first victims.

RAY SUAREZ:

But you yourself have suggested that there's been no functioning legal system in Iraq for some decades. Is this nascent Iraqi judicial system, expatriates returning to the country, courts now being established, are they ready to handle a defendant of this magnitude?

FEISAL ISTRABADI:

Certainly. What I have said in the past — and I stand by that — is that the … much of the Iraqi judicial system has been corrupted, and that is true. That is not to say that you cannot find individual judges and prosecutors who continue to enjoy reputations as good jurists. There are — remember, we're not talking about reconstituting the entire Iraqi judicial system for the purpose of trying Saddam Hussein.

You are talking about a discreet, finite number of judges to serve in a trial chamber and a discreet finite number of judges to serve on an appellate chamber. In a country of 25 million people, can we find a dozen or two judges who are untainted and who are highly competent? Absolutely. There are judges who have retired. There were serving judges in Saddam Hussein's judicial or in Iraq's judicial system, I should say, who nonetheless enjoy high reputations for having been incorruptible.

These individuals coupled with expatriates, coupled with a cadre of highly competent judges who have been operating independently of Saddam Hussein in Iraqi-Kurdistan, there is no question that a sufficient number of judges both for a trial chamber and an appellate chamber can be constituted to try Saddam Hussein and the major perpetrators of crimes against humanity, principally against the people of Iraq.

RAY SUAREZ:

Paul Van Zyl, is what Feisal Istrabadi suggests possible in your view?

PAUL VAN ZYL:

First, it's important to correct Feisal's assertion that the international human rights community has not been concerned about Saddam Hussein's atrocious human rights records. For decades organizations like Amnesty International and Human Rights Watch amongst others have been drawing attention to the world of Saddam Hussein's terrible human rights track record long before it became fashionable or politically expedient to do so, but I think it's important to pause and look at the objective facts.

Two independent reports which scrupulously looked at the Iraqi judicial system very recently, one conducted by the United Nations and one conducted by the coalition provisional authority itself, concluded that Iraqis' judicial system is chronically dysfunctional and absolutely incapable of handling and prosecuting complex human rights trials of the type that will be needed if Saddam Hussein is to be appropriately prosecuted.

So I just think it's just simply incorrect to try and assert that it is possible using existing Iraqi judges, prosecutors and investigators to handle these cases. We have to internationalize them. We need the United Nations to be the main instrument through which international expertise is recruited and, recall, we're not talking here about cumbersome costly trials such as those which have occurred in the former Yugoslavia or Rwanda.

We're talking about trials which will occur in Baghdad. They will be in Arabic. There will be a high degree of Iraqi ownership and control, but we must infuse the process with international expertise because there's no other way to ensure that the complexity of these trials is properly managed.

RAY SUAREZ:

Professor Orentlicher, you've heard a suggestion of an Iraqi process, an international process. Is there something that does both.

DIANE ORENTLICHER:

There's something in between which is why I think Mr. Van Zyl was getting at. There's the possibility of international assistance for an Iraqi-led process. In fact, I think there's quite broad consensus now that as Mr. Van Zyl indicated, there should be a trial in Iraq for the reasons we just heard. But the Iraqi system has been decimated. I have no doubt that there are as many honorable judges in Iraq. I've met many of them, as necessary to conduct these trials.

I think there are huge questions about whether there are the resources to handle a trial of this magnitude in a way that will be credible. I also think that the expertise necessary to apply this rather complex body of law would be helpful to Iraqis, assistance from the outside would be quite helpful. The question is where is that going to come from because I think it does need to come from somewhere.

The Americans have the resources and great expertise, but I think there's a huge danger for an Iraqi tribunal prosecuting Saddam Hussein to have American — the American imprint all over it. It would be perceived and understandably as being a stage-managed process, a sort of judicial railroad to a predetermined outcome. And I think that should worry Iraqis themselves. So I think it's important to see the responses of the international community not as a condemnation of the Iraqi system but as an offer of assistance.

RAY SUAREZ:

Well, quickly, is there anywhere, where that kind of model, a domestic product with international help has worked in the past?

DIANE ORENTLICHER:

There's a court operating right now in Sierra Leone which is a hybrid, a combination of local judges and international judges applying a blend of local and international law. And, in fact, the statute adopted last week by the Iraqi Governing Council moves in that direction.

It has the possibility for appointing international judges and it applies a combination of international and local law. So I don't think positions are as far apart as public debate may sometimes suggest. The question really is what kind of international involvement is possible. And here I think the question of the death penalty becomes rather important.

The United Nations has assisted several countries in establishing war crimes processes, but it is adamantly opposed to the death penalty. Likewise our allies in Western Europe are very uniformly opposed to capital punishment. Just yesterday I believe the British government indicated that it would not participate in a trial process that could result in capital punishment. So I think the real struggle ahead is going to be over that question.

RAY SUAREZ:

Feisal Istrabadi, I need to keep this response very, very brief. Would a hybrid process satisfy Iraqi public opinion and does it look like the death penalty is going to be a real sticking issue here?

FEISAL ISTRABADI:

The death penalty may be a real sticking issue as the professor pointed out the statute provides for foreign experts to act in an advisory capacity for a domestic tribunal. The problem with the death penalty is that it creates an anomaly that the most severe perpetrators of genocide and torture in Iraq will not be subject to the death penalty but low-ranking officials who may be responsible for one or two deaths only would be subject to the death penalty under the — under Iraqi domestic law. With respect, if I may, to the issue of the studies that were done of the judiciary…

RAY SUAREZ:

Briefly, sir.

FEISAL ISTRABADI:

I can't speak for the United Nations' study, but I can tell you that the team, the American team, that went in to study the Iraqi judicial system for the CPA did not contain one native speaker of the Arabic language. How they were able to assess the Iraqi judicial system and its capabilities without having one person able to converse in the native language of that judicial system is beyond me.

RAY SUAREZ:

This is a debate that I'm sure is to be continued. Guests, thank you all.