ICTJ in the News

December 8, 2003

Should Iraqi Governing Council Establish Tribunals to Try Members of Saddam's Regime?

CNN Q&A

Transcript

ZAIN VERJEE, CNN INTERNATIONAL ANCHOR (voice-over): The Iraqi Governing Council has voted to create a special tribunal to try those who committed atrocities during Saddam Hussein's regime.

UNIDENTIFIED MALE (through translator): Those who will face the war crimes court are the people who ruled Iraq for about 40 years and who committed crimes against the Iraqi people.

VERJEE: Human rights groups have criticized the plan, saying the United States would dictate the terms of the tribunal. Concern also, Iraqi judges and lawyers may not be up to the task. And some question the legality of the tribunal.

UNIDENTIFIED MALE: Fact-finding is not there for a credible trial process.

VERJEE: On this edition of Q&A, Iraqi war crimes tribunals. Can they work?

(END VIDEOTAPE)

VERJEE: Welcome to Q&A. The resolution creating the tribunals calls for Iraqi judges to hear cases presented by Iraqi lawyers. International experts would serve as advisers. Several thousand Iraqis are in U.S. custody, including 40 of the 55 most wanted officials of Saddam Hussein's ousted Baathist regime, but some are questioning the whole process.

From Baghdad, Mahmoud Othman joins us now. He's a member of the Iraqi Governing Council. And from New York, Paul van Zyl. He's the director of country programs at the International Center for Transitional Justice.

To Baghdad first and to Mahmoud Othman with the Iraqi Governing Council. When will the first trial begin, do you think?

MAHMOUD OTHMAN, IRAQI GOVERNING COUNCIL: Well, surely now, the law is almost finished. It will have the final touches tomorrow, and then it will go to Mr. Bremer, the American Mr. that's here, and he will sign it or he'll authorize the Governing Council to sign it and publicize it. So it will finish this week, I think, and I hope also that's the process, yes.

VERJEE: And when do you envision the first trial taking place, six months, longer?

OTHMAN: Well, after the law is published, of course, officially, then the judges and the minister of justice and the people who are concerned, just (ph) people, the judges, they will try to set up courts, where to set it up, how to do it, and then they will take accusations against the people who are in prisons now, and of course they will have documents, they will have all the things that...

(CROSSTALK)

VERJEE: OK. Then it's not really clear then when the first trial would actually take place.

OTHMAN: ... and then they will try to set up the courts, and...

VERJEE: Mr. Othman, let me ask you this, is the United States dictating the shape, the terms of this tribunal?

OTHMAN: Not at all. The United States is not enthusiastic about a tribunal at all, because they, when these people committed these crimes, during Saddam, United States government was supporting Saddam. So they are not enthusiastic about these crimes, and they haven't dictated anything. It's up to the Iraqis, and the Iraqis have worked on it in the major part. Sometimes they have the point of view of the United States people, but they haven't dictated anything on us.

VERJEE: Paul van Zyl, just how much of a hand does the U.S. have in this? Do you take Mr. Othman's view?

OTHMAN: Well, I think that we do, you know...

VERJEE: Mr. Othman, I would like Paul van Zyl to respond to that.

PAUL VAN ZYL, INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE: Well, I think there are very real sources of concern about the role that the U.S. government will play with this tribunal. We are given to understand that the Coalition Provisional Authority has drafted a memorandum, setting out prosecutorial and investigative strategies in which it identifies eight people to be prosecuted by these tribunals.

And if the CPA is doing this, there is a great concern that it will, in fact, control this process and influence it.

But I think there is a more profound concern here. These tribunals are supposed to be about Iraqi ownership and Iraqi control. In fact, the statute for these tribunals has not been circulated for public comment. The vast majority of Iraqi people have not had an opportunity to look at the statute, to comment on it, to participate in giving it an imprimatur of legitimacy, which is absolutely crucial. And two independent reports, one commissioned by the Coalition Provisional Authority itself and another commissioned by the United Nations have concluded that the Iraqi criminal justice system is chronically dysfunctional. We're concerned that the international community and the U.N. in particular is not playing a sufficient role in bringing to bear expertise to assist these tribunals.

VERJEE: OK. You've touched on a lot there. Let's start with one of the issues you raised, and that's the issue of legitimacy. Mahmoud Othman, the Iraqi Governing Council is seen as in some ways as a proxy of the United States. You have no legislative power, you have no independent source of funding. You're setting these tribunals up, and if Paul van Zyl is correct, the United States is playing a controlling role in it. It raises questions about the legitimacy of these sorts of tribunals, doesn't it?

OTHMAN: Well, I think we are not a proxy of anybody, really. We are having, whether we like it or not, we have to work together with the United States in this country, the CPA and the Governing Council. But this issue in particular, this is Iraqi people. They want this, because these people have committed a lot of crimes, they have to be judged, and of course it has been...

VERJEE: Understandably, Mr. Othman, the Iraqi people want it, but I am asking you specifically about the issue of legitimacy. Will the Iraqi people see this tribunal as legitimate if the U.S. is controlling its process, its shape?

OTHMAN: The U.S. hasn't controlled anything. I think Iraqis have done it, Iraqi judges. The U.S. (UNINTELLIGIBLE). And it's normal, because they are ruling this country, anyway. But this thing, when it will come out, the final shape, the courts will be opened, the human rights organizations will be allowed to come and see the courts and be there, and we will try our best to observe and respect the international norms. I think people have to wait to see how the trials are conducted. They shouldn't criticize it before even it's out, and I think it has been thoroughly discussed between the Iraqis, and even outside experts had a hand in it, so I think it will be less criticized when it's done, when the trials start.

VERJEE: Paul van Zyl, what about that point? I mean, you know, human rights groups, organizations for years have been saying, you know, campaigning for accountability in Iraq over the past decades, and finally something is being established, something that makes the former regime accountable to the Iraqi people, and people like yourself and other rights groups are criticizing it. Why not give it a chance, as Mr. Othman is saying?

VAN ZYL: Well, I think that human rights organizations have campaigned for accountability in Iraq for decades, long before it became fashionable or politically convenient to draw attention to Saddam Hussein's appalling human rights record.

One of the crucial things about trials is that they are impartial and that they are legitimate. And we are gravely concerned that trials that will be established -- Mr. Othman just indicated that the statute will be passed to the CPA and to Mr. Bremer for him to sign these tribunals into law. If that happens, it will be very difficult for these tribunals not to be portrayed as a product of the United States, as an instrument of victors' justice. And the United States doesn't have a particularly good track record in relation to global justice. It has sought to subvert the International Criminal Court, it has detained people in Guantanamo Bay and denied them their due process rights, and has a poor human rights track record in the Middle East.

So any trial that is established by the CPA, as Mr. Othman indicated, will be of dubious legality. Our strong wish is that when a genuinely sovereign Iraqi government is established, in June of 2004, that it be the body that establishes a tribunal, that it is divorced from the CPA, and that there be a proper process of consultation.

VERJEE: Looking at the legal system itself and bearing that in mind, Mahmoud Othman, the United Nations and the American Department of Justice both did separate surveys of the legal system. The U.N. report came out and said this, quote, "It's a degraded justice system and inadequate legal framework that is not capable of rendering fair and effective justice for violations of international, humanitarian law and other serious offenses involving the prior regime." If the infrastructure is not set up there, if there's that much criticism about its competency and adequacy, can it really conduct fair trials, complicated trials?

OTHMAN: Well, I think that we are under occupation, and under occupation, of course, nothing is very legal, but nevertheless these courts, the law has been made by Iraqis, Iraqi judges mainly. The United States, this is normal, any law which is now put out in Iraq, it has to be signed by Mr. Bremer. He is ruling Iraq. You see, that is according to occupation, according to Resolution 147 (ph)...

VERJEE: But that's the problem, Mr. Othman, that is why the Iraqi Governing Council and anything that you put -- anything that you pass under an occupation will be seen as tainted, and that's the problem...

VAN ZYL: And if I may say, Zain, I think that there is...

OTHMAN: That's why we have...

VAN ZYL: Sorry, I think that it's incredibly important under these circumstances that the necessary preparatory work be undertaken. The United Nations, together with the Iraqi Governing Council, could recruit international judges, investigators and prosecutors to do the important work, and then in six months time, when there is a legitimate sovereign Iraqi government, the statute can be passed (UNINTELLIGIBLE) into law.

VERJEE: Mahmoud Othman, have you drawn up a list of who you want to prosecute, the Iraqi Governing Council? Have you got that kind of list?

OTHMAN: Well, first of all, let me tell you, United Nations has gone out of this country. They are not ready to send everybody in, for the time being. Otherwise, we have invited them many times to come and be part of this court and tribunal, and they could (UNINTELLIGIBLE), they could advise us. We have asked those people. We never excluded United Nations. We asked them to be here, to observe anything. They (UNINTELLIGIBLE) of course.

And the Americans are here, because don't forget, Americans are controlling the country, but in any case, I think that once we will be (UNINTELLIGIBLE), there will be the people who lodge accusations against them, people will pile (ph) accusations against -- these are their victims, I mean. The families of victims. There are a lot of documents collected by the human rights organizations. There are also other documents, which are in other places. All of them will be collected, and then the people who are relatives, then again we'll do trials, the trials will be opened, the human rights organizations, including your guest who's talking, I don't know who is he -- will come and see the trial and look at it, and we'll do our best to have international inspectors.

That is the maximum we can do in this country. And I think we'll do our best. This is a country -- these people have committed a lot of crimes, and Iraqi people want these people punished, and they have the full right to do that. These things are not 100 percent correct, that's another point, maybe with time we'll have a better situation maybe.

VERJEE: OK. Mahmoud Othman, a member of the Iraqi Governing Council. Paul van Zyl, the director of country programs at the International Center for Transitional Justice in New York, thank you both.

VAN ZYL: Thank you.

VERJEE: That's this edition of Q&A. We always want to hear from you, so e-mail us and your comments, your opinions to Q&A@cnn.com. We'll have more news in a moment. This is CNN.