ICTJ in the News

December 15, 2003

How to Prosecute and Punish Saddam Hussein

CNNfn The Flipside

Transcript

KATHLEEN HAYS, CNNfn ANCHOR, THE FLIPSIDE: Welcome back to THE FLIPSIDE. Of course, we have been just listening to President Bush talk at length about the capture of Saddam Hussein, what it means for the future of our forces in Iraq. What it means for the Iraqi people, particularly what it means for any potential trial of Saddam Hussein, which, of course, is the big question on many people's minds in Iraq. Here in the United States, around the world.

Interesting to see the stock market reaction to this historic event. Dow Industrials gaining 65 points. Trading at 10,107, of course, passing that 10,000 milestone last week. Actually, the stock market futures seem to be indicating a very, very powerful opening, got an opening, this seems to be a muted reaction. Perhaps people settling back realizing as the president and his military officials have been saying, that this is an important milestone for the conflict in Iraq, capturing Saddam Hussein. But obviously the insurgents have not gone away yet.

President Bush saying, he does say, the terrorists are still there. There will be more terror attacks but he is more firm than ever against fighting terrorism saying this is in the interest of the United States to have a free and peaceful Iraq. It is essential to peace in the Middle East.

Fortunately, we can continue with our two guests. We have Feisal Istrabadi who is from the Iraqi Forum for Democracy standing by in Chicago. And Paul Van Zyl from the International Center for Transitional Justice.

We're glad you could both stay with us. Because that was such an interesting press conference.

Feisal, let's go to you and get your reaction broadly to the things he said about Iraq. And more specifically to what he said about the trial of Saddam Hussein, which will surely be on the horizon.

FIESAL ISTRABADI, V.P. U.S.- BASED IRAQI FORUM FOR DEMOCRACY: Well, two things that he said were most important for I think Iraqis to hear. One is he reiterated, yet again, the commitment of the United States to seeing this through in Iraq. That there is, in fact, a commitment on the part of the United States to continue to commit itself to the reconstruction of Iraq.

More specifically with respect to the trial of Saddam, I was heartened by the president's repeated assurances that it is going to be the people of Iraq, for instance who decide the fate of Saddam. Specifically I'm thinking of the question he was asked, what would you do with him? I think that we heard what I think most, indeed, probably all Iraqis wanted to hear on both those fronts.

GERRI WILLIS, CNNfn ANCHOR, THE FLIPSIDE: Paul, I want to turn to you now on this very question. The president, of course, saying as Kathleen was mentioning, it is going to be up to the Iraqis. He has different personal ideas, the president said, but is this window dressing or do you think his intention is to turn the trial over to the Iraqis and should that happen? Is that a good idea?

PAUL VAN ZYL, DIR. COUNTRY PROGRAMS, INT'L. CTR. FOR TRANSITIONAL JUSTICE: Well I think the trick here is to get the appropriate blame of Iraqi ownership and expertise and international involvement in this.

I think we need both but I think what's perhaps slightly disingenuous about the articulation of Iraqi ownership is that a report commissioned by the CPA, the Coalition Provisional Authority itself has indicated that the Iraqi criminal justice system is chronically dysfunctional and incapable of leading these kind of trials.

So there will have to be a robust infusion of international expertise. It's just simply not possible to prosecute Saddam Hussein for these kind of offenses, genocide, war crimes, crimes against humanity without the infusion of international expertise.

WILLIS: Why? I just don't understand. What's lacking in the Iraqi system? They have their own system for doing trials, obviously. What's lacking in that?

HAYS: And Paul under that could there be two trials? Could there be an Iraqi trial trying him specifically under their laws, and then go to some sort of more international venue to try him for these other crimes, war crimes, crimes against humanity in general?

VAN ZYL: Well I think firstly we don't want to trivialize the crimes he's responsible for. This is not a man who mugged a little old lady and took her handbag. We want to prosecute someone for genocide and war crimes. And those are very complex crimes to prosecute. You have to show chain of command. That he was in the chain of command. That this was his intent.

You have to analyze hundreds of thousands of documents to be able see there was an orchestrated campaign. You have to do the forensic evidence. You have to look at hundreds and hundreds of witnesses. If you just look at the comparable experiences in Rowanda and Yugoslavia, the war crime tribunals there they've taken time. And they've taken time because we want to make sure these trials are beyond reproach. That they fair, that they stand up to scrutiny.

Another quick reaction to President Bush's statement, I think that the press conference is worrying. And the tone he took is worrying in these two respects.

Firstly, I think that there was a politicization of race to Saddam Hussein that I think is worrying. And it is important for a president to be able to talk about the achievements of his administration and all presidents do but to tack those on to the back of the news of the arrest of Saddam Hussein I think links those two.

And we want to take United States politics out of this. We want the decisions made about the prosecution of Saddam Hussein to be entirely apolitical.

The other point I think is that there is some very dangerous amnesia happening. President Bush talks about Saddam Hussein as a murderer and a torturer and rapist. Well, unfortunately during crucial periods of time when he was murdering and raping, the United States government was strongly supporting his regime. So, again I think we want to take the U. S. out, because it is in the U. S. national interest for them to be out of this process.

HAYS: I want to just quickly let our viewers know. Please, please, please join the conversation if you have questions, comments. Maybe you just want to respond to what President Bush said. Maybe you want to respond to something our guests have said or ask them very specific questions. Please give us a call, 1-800-304-3638.

STEPHANIE ELAM, CNNfn ANCHOR, THE FLIPSIDE: You know, when President Bush was speaking and they asked him a question about capital punishment, I audibly heard you make a reference to that. Now, the issue is Amnesty International is already having concerns about whether or not capital punishment will be supported when it comes to this tribunal and the outcome there.

And I'd be interested hearing Feisal. In fact lets go ahead and go to Feisal first and see. Feisal tell us how do you feel when you take into account the capital punishment issue? What do you think should happen there?

ISTRABADI: My personal view is that I am very strongly opposed to the death penalty in the abstract as a philosophical matter. I can accept that if you intentionally take another life, you ought to forfeit your own. But as a practicing lawyer, I'm concerned about, I'm deeply troubled by the imperfections of an all-too human judicial system. And that for those very practical reasons I oppose the death penalty.

The anomaly that would obtain if Saddam Hussein were tried by an international tribunal, is that he as a mass murderer, as a mass rapist, as a mass torturer, would not be subject to the death penalty, but some Iraqi private who fired one gun, one time and put one bullet into one victim's head, would under Iraqi law be subject to execution and under international law would not, as a rule, be subject to the jurisdiction of international tribunals because he would not be a mass perpetrator or a major perpetrator. So that I think is a real anomaly.

And if I may respond briefly to Paul, you talk about the CPA doing a report on whether the Iraqi judicial system is dysfunctional. Well, the fact of the matter is I think many of us look at the Yugoslav and Rwandan tribunals and see dysfunction there. They've been in existence for 10 years. Between them they don't have 30 convictions. They've spent $100 or $200 million, I can never remember whether its $100 each, or $100 million combined. And they have a handful of convictions to show for it.

And more importantly both those -- or equally importantly -- those courts neither one of them sits or adjudicates in the country in which the crimes occurred. One sits in the Hague, and the other, I think, correct me, Paul I think it's in Tanzania.

I mean, I really don't think the international system is something to be emulated.

HAYS: OK.

ELAM: What do you say Paul?

VAN ZYL: Well, I mean -- don't get me wrong. I don't think that having concerns about the competence of the Iraqi judiciary necessarily means we establish a big $100 million a year international tribunal somewhere else.

We absolutely want this tribunal to be in Baghdad. We want it to be in Arabic. We want a large degree of Iraqi participation. We want to learn the lessons that Feisal eloquently points out about the failures of the Yugoslav and Rwandan experience.

But what we don't want to do is throw the baby out with the bath water. To say these were cumbersome and inefficient tribunals therefore we go to the opposite extreme and give full Iraqi control, when Iraqis are simply not up to it at this stage. We want to blend those together and want the international expertise to come through the U.N. so it's not politicized and not subject to control.

WILLIS: OK, let's go to California for the caller. Ibrahim, go ahead.

CALLER: Yes my question is we do have a constitution in 1922 in the monarchy has been set aside. It needs to be altered. And then there is in the judiciary a paragraph, if you remember Feisal? I don't know if you read it or not? The way is to punish people and Saddam needs to be altered subsequent to that Iraqi people of the Iraqi government then and now qualified to bring Saddam to justice because they've never had a case like this.

We do need the international community judicial system to execute with also judges from around the world to be observers to this case. Because the man, in my opinion, and of course I don't want, will presume everybody is innocent until proven guilty, let's assume he is innocent at the present time.

To do that innocent or guilt we need people qualified, not prejudiced and biased to bring Saddam to justice in a tribunal like what happened in the days of (INAUDIBLE) kangaroo courts. The shooting people in the middle of the trial. We need the world to know that we do have a justice. And I am the president of the American Iraqi Friendship Federation. Thank God we got a hold of Saddam. Thank God.

HAYS: OK, OK. Thank you. President of the American Iraqi Friendship Organization I think he said. And we certainly want Feisal to respond.

ISTRABADI: Well I endorse much of what my friend Ibrahim said. The constitution of 1925 is an interesting document in that it expressly contained a provision for the trial of officials for crimes committed while in office, contrary to later constitutions which provided immunity.

On the issue of international competence, I think this is important, but Paul also for you to consider that the statute establishing the Iraqi tribunal, especially Iraqi tribunal, expressly calls for having foreign advisory judges who have experience in international crimes and for foreign advisory prosecutors to be appointed to be of assistance to the court.

And without any doubt, as Paul was saying quite correctly, there will have to be much international forensic and other scientific expertise brought to bear within Iraq. I absolutely agree. I'm not suggesting when I talk about an Iraqi tribunal that we seal the borders of Iraq and bar all foreigners from having any role to play.

On the contrary, my point is that it needs to be a tribunal constituted under the laws of Iraq and in which prosecutors and judges are in the first instance Iraqis. But the governing council and the CPA both recognize that both judges and prosecutors, as well as the forensic side of this will have to rely, to varying degrees as needed, on international experts. That's agreed to.

ELAM: Alright we have another caller on the line. Allen in Missiouri what's your question or comment?

CALLER: Yeah, are you there?

ELAM: Yep.

HAYS: Go ahead, Allen

CALLER: OK, I would just like to ask the gentleman you have in your studio if he was defending Saddam Hussein, would he have him plead guilty or not guilty.

ELAM: What do you say Paul?

VAN ZYL: Well, I would hope that I would never be in that position. Saddam Hussein human rights track record. He wouldn't be my first choice as a client.

But I think what you point to is the importance of there being due process standards, and I think again this is a question we have to look at. The current tribunal law and, draws on the Iraqi criminal procedure code. And there are some significant deficiencies in that code. And, you know, that's understandable given the nature of authoritarian rule in Iraq for a number of years.

It's not clear where, for example, whether there is a habeas corpus provision. If you have an Iraqi process where the underlined rules are subject to some question as to their fairness. That's not going to pass international scrutiny and we desperately need that.

HAYS: OK, well Paul and Feisal please sit tight. We're going to continue this discussion in just a moment. A lot more coming on THE FLIPSIDE. Stay with us.

(COMMERCIAL BREAK)

HAYS: Continuing our discussion of the capture of Saddam Hussein and what it's going to take. What it's going to mean to bring this man to justice. We're continuing our conversation with Feisal Istrabadi from the Iraqi Forum for Democracy in Chicago and Paul Van Zyl from International Center for Transitional Justice, here in our studio.

Welcome back to both of you.

We thank our viewers for getting involved today, as you often do. It is an interesting topic, and certainly an important one.

Feisal, let me quickly get to you because we want to get this ball rolling again at the pitch we had it just a moment ago. What are Iraqis afraid of? Why would Iraqis be the least bit concerned about saying we're going to be in charge, we're going to really be calling the shots here with this trial of Saddam Hussein and bringing in international expertise? Is there a bit of defensiveness because Iraqis need to show the world we're up to this? That we are a nation now. Because it would seem on some level people might welcome the help.

ISTRABADI: As I said, the questions that Paul and I are debating are more sort of I think instructional than practical. There is no question that Iraqis expect that they will need international help. The question is, structurally how will the court be constituted. Will it be constituted as a special tribunal under Iraqi law? Which is what Iraqis want. Or will it be an international tribunal set up by the United Nations Security Council as the Rwandan and Yugoslav courts were set up. That's the question.

WILLIS: Well let me throw another idea into the mix. Feisal, you just sort of outlined some of the ideas, but Paul what about a truth commission? South Africa used a truth commission to talk about some of the atrocities and that country allowed people to come forward, tell their stories publicly when they hadn't told them before. Should that be done in Iraq, as well?

VAN ZYL: Well, as it so happens I had the great privilege as serving as the executive secretary of the Truth and Reconciliation Commission in South Africa. So I experienced for three long years what a truth commission looks like.

And even as we debate the prosecutions in Iraq at the best-case scenario we probably will prosecute 50 or 60 people before these Iraqi special tribunals. Because it is such hard work. There're going to be tens of thousands victims. Hundreds of thousands of victims who will never see justice in a court of law. They may see it vicariously by having someone else prosecuted. But they won't experience it themselves.

And I think there's a tremendous merit to the idea of having some forum in Iraq which allows victims to come forward, to tell their stories, to have their suffering acknowledged, to think more creatively about a reparation program, because victims have suffered terribly.

And also to paint the broader picture. Trials tell narrow forensic stories about particular crimes and I think you want to paint the full picture of the astrocities and the horror that happened in Iraq. A truth commission would be a good idea providing Iraqis want it, they're properly consulted, they're properly involved.

ELAM: Feisal to bring you back into the conversation here. As far as the detainees that the U.S. Government has, obviously Saddam Hussein is one part of a myriad of people they're looking at. How quickly do you think these detainees will be returned to the Iraqi officials as they begin this tribunals. Will speed the process up now that Saddam Hussein's been captured or not?

ISTRABADI: I doubt it. I think that there are, there's no question that there are certain things that the United States has, there's certain imperatives the United States has. Obviously and the Iraqis would be on board with this, as well, ending the insurgency, for instance. Insurgency is the wrong word but ending these terror attacks is a priority over the immediate beginning of trials, plus, these are complicated cases, as Paul well knows. And so the investigatory processes will have to take time. I don't really see any trial regardless of what forum it's in actually getting underway for many, many months.

WILLIS: Let's go to the caller in Florida. Jeff go right ahead.

CALLER: Good morning. Good afternoon in your region. Yeah, I believe that Saddam Hussein should be publicly executed, and I think it should be done in a public way in Iraq. Let the people know in Iraq and also the rest of the Muslim world that this is what happens. We had former leaders of countries like Big Daddy Amin that escaped prosecution and punishment, so I think that would be a big deterrent And also let people know that this is going forward. And it won't be tolerated.

ISTRABADI: May I respond?

WILLIS: Go right ahead.

ISTRABADI: One of my earliest memories of having lived in Saddam Hussein's Iraq was the mass public televised execution of people in Baghdad. I hope that the days of this kind of activity in Iraq have finally come to an end. Iraqis have suffered for 45 years from the mass -- from mass murder of their previous rulers. And it's time for Iraq to close this chapter and to move forward.

WILLIS: Paul, go right ahead.

VAN ZYL: I couldn't agree with Feisal more. I think he is absolutely right on that score. And I also think there's not just a philosophical question as a practical question. And that is there are people currently in custody held by the UK, the British forces. And being a European nation that signed up the European convention on human rights, it can't hand over people to a tribunal where the death penalty may be imposed. You're not going to get European nations to send judges, investigators and prosecutors to assist this tribunal if you have a death penalty. And you desperately need those people, so I think there's a practical issue here, as well.

ELAM: You know, it's interesting to take a look very quickly at the idea of Osama bin Laden. Obviously here in the States that's who everyone is taking a look at. What is more important or more important from where you stand? Osama or Saddam?

HAYS: Quick comment.

VAN ZYL: I think to deal with Saddam Hussein we have to capture Osama bin Laden and try him and prosecute him fairly. Let's do Saddam fairly first.

HAYS: Feisal your final word?

ISTRABADI: Well I will say Amen to what Paul said. We want a fair public trial where due process actually occur not only seen being done, but actually occurs.

HAYS: Feisal Istrabadi, thank you so much. Paul Van Zyl, thank you also for joining us. Just a quite a day, quite an event. And we're so glad we have both of these gentlemen here to give us a perspective. Thank you for joining us today on THE FLIPSIDE that's it. Tune in tomorrow. We'll have a lot more and we're looking forward to seeing you then.