19 December 2003
International Law Expert Discusses Iraqi Tribunal
Interview with Laurence Rothenberg of Center for Strategic and International Studies
On December 10, just four days before Saddam Hussein was captured by U.S. forces in Iraq, the Iraqi Governing Counsel announced the formation of a five-member Iraqi War Crimes Tribunal.
According to the statute, the Tribunal will have jurisdiction over war crimes committed by Iraqi citizens "in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq's wars against the Islamic Republic of Iran and the State of Kuwait." Further, only crimes committed during the time period between when Saddam Hussein and his party took power in 1968, and the declared end of hostilities in Iraq in May 2003 will be eligible to be tried by the Tribunal.
The regulations that guide the Tribunal allow for the appointment of Iraqi judges, the use of international judicial experts when necessary and require that all prosecutors be Iraqi citizens.
The capture of Saddam Hussein on December 14 has resulted in a debate over how he will be tried for the war crimes with which he will likely be charged. Although international tribunals have been suggested as legal options for trying Saddam Hussein, the formation of the Iraqi War Crimes Tribunal presents a new possibility for trying the former Iraqi dictator.
Laurence Rothenberg, a fellow at the Center for Strategic and International Studies (CSIS) in Washington, and an expert in international law, spoke with Washington File staff writer Alexandra Abboud in a December 17 phone interview about the Iraqi War Crimes Tribunal and bringing Saddam Hussein to justice.
Following is a transcript of the interview:
Q: In your opinion, what is the best legal response to the atrocities committed by Saddam Hussein and his regime?
A: I support the Iraqi tribunal very strongly. I believe that the criminal court sitting in judgment must be close geographically, physically and psychologically to where the crimes were committed and to whom the crimes were committed against. I think they have to have domestic legitimacy first before it has international legitimacy.
The purpose of the trial is to do justice for the victims, to establish the facts for the sake of history and to help heal Iraqi society by putting the dictatorship of Saddam behind them and this could best happen in Iraq with Iraqis controlling the process. There is a need for some kind of international legitimacy, but there is no reason to believe that an Iraqi court that followed general principles of transparency and due process would not have that kind of legitimacy.
Q: Do you think that Iraqi lawyers are adequately prepared to try
Hussein, given the volume of materials they must address? Those materials include almost one million pages of documents regarding the treatment of the Iraqi Kurdish minority alone.
A: Yes, I do believe the Iraqis are fully competent and qualified to do this and certainly as well prepared as any one else. I think that commentary over the last few days impugning their ability is inaccurate. There are many qualified, independent and uncompromising judges, prosecutors and lawyers in Iraq. There are many people who even under the Baathist regime were recognized for their incorruptibility, judicial experience and proper moral and upstanding nature who would serve on the Iraqi Tribunal.
Second, there are a lot of Iraqi Americans and Iraqi nationals who have been exiled and living in other countries who are also trained as attorneys, prosecutors and investigators who could return to Iraq and help with the process.
Third, the U.S is helping to train Iraqi lawyers also. The Pentagon has an Institute of International law and they've been training dozens of Iraqi attorneys.
Fourth, the Iraqis can request international help from the U.S. and from independent experts around the world.
Regarding the amount of documents that must be reviewed in these cases, much of the work has already been done over the last 10 or 12 years by non-governmental organizations who have been preparing for the moment when Saddam Hussein would be put on trial. There are many documents that have already been reviewed and catalogued, many witnesses who have already been interviewed and the Tribunal can rely on a lot of that expertise.
Q: Turning to public opinion, what do you think the international community's
response to trying Saddam Hussein in the Iraqi War Crimes Tribunal will be
given that the United Nations will play a limited, if any role at all, in trying
Iraqi war criminals?
A: I think the response will be negative to begin with as we've seen over the last few days. But I think in the end, much of the international community will realize that the Iraqi tribunal has been set up fairly. Not many people who have been speaking on this issue appear to be familiar with the statute of the Iraqi tribunal which I have read. It is available on the Coalition Provisional Authority website and upon reading it one can see that it is a model of fair procedure.
The defendants, including Saddam, have the right to an attorney, they have a right to confidential communication with an attorney, a right to be free from coercion in testifying against themselves, which is the equivalent of the 5th amendment right in the United States Constitution. There are lots of guarantees for impartiality of the court and due process, so I think once that information comes out, and especially when the Tribunals start working, international observers and the media will see it is a fair trial.
Q: There has been a lot of talk regarding whether or not Saddam Hussein will
face the death penalty if found guilty by the Tribunal. What does the statute that governs the Tribunal say, if anything, about the death penalty as a punishment?
A: Actually, the statute doesn't say anything specifically about that. In discussing punishments, it refers to those that already exist under Iraqi law, and the death penalty does. And it also refers to the general ability of the tribunal to determine the punishment for those people who've been convicted. So, it doesn't specifically say that the death penalty is an option, but the statute doesn't rule it out. Given that the death penalty has been an accepted punishment in Iraq throughout its modern history as a state, that means that the death penalty is available. U.N. Secretary General Kofi Annan, and the international community, said they would prefer to have the death penalty specifically ruled out as a punishment as it has been for the U.N.-run tribunals.
Q: Finally, as the United States works to build democracy in Iraq, what are the
overall implications of which legal forum is used to try Saddam Hussein and other Iraqi war criminals?
A: Using an Iraqi Tribunal would be an excellent way of building up a new Iraqi democracy. It is giving Iraqis themselves ownership of their future rather than people from outside saying: "The Iraqis are not competent; they've never dealt with something so sophisticated." Supporting the Iraqi War Crimes Tribunals is saying to the Iraqis: "Ok, we're going to get you some help, but ultimately this is for you to do. We're going to train your judges, were going to give you moral support, financial support, but we're leaving the big decisions up to you." That is giving the Iraqis a sense of ownership and it's helping them rise to the level of responsibility that they are entirely capable of, and ultimately, as they want to run their own country, will have to take for themselves.
(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
This page printed from: http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2003&m=December&x=20031219115016maduobbA9.569949e-02&t=usinfo/wf-latest.html
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