ICTJ in the News

December 10, 2003

How To Process Iraqi War Crimes

CNNfn The Flipside

Transcript

VALERIE MORRIS, CNNfn ANCHOR, THE FLIPSIDE: And now back to our big story. Iraq's governing council has voted to establish a war crimes tribunal. Now this tribunal reportedly will target top members of the Saddam Hussein regime. But will the tribunal be led by Iraqi citizens or has the United Sates overstepped its bound in the quest for justice? Paul Van Zyl joins us now to share his perspective. He is the director of the Country Programs for the International Center for Transitional Justice.

Paul, welcome to the program. Thank you so much for joining us.

PAUL VAN ZYL, DIR. INT'L. CNTR. FOR TRANSITIONAL JUSTICE: Thank you for having me.

MORRIS: This is a huge topic. Let us first get your overall opinion about where this stands because it seems as if one of your key issues is independence needs to mean independence and that you feel that the U.S. fingerprints have not necessarily allowed that.

VAN ZYL: Well I think it's first important to say that human rights organizations have been campaigning for accountability in Iraq long before it became fashionable or political convenient to draw attention to Saddam Hussein's atrocious human rights record.

So we're all very concerned that these trials happen, that they succeed and that they are legitimate and a success. And I think there are two main concerns. The first is that the process of drafting the statute has been shrouded in secrecy. If this is all about Iraqi ownership and Iraqi control, then would you have thought that the bill would be published, would be available for public comment and the Iraqi people would have a chance to input into this process but that hasn't happened.

To date, there's been no formal promulgation of the bill. And that's a big problem in terms of democratization this process and ensuring ownership.

The second problem is that the CPA, the Coalition Provisional Administration that runs Iraq and says this is about Iraqi ownership and Iraqi control but they've drafted a document, which sets out a very detailed investigative strategy including those top eight people in the famous deck of cards who are currently in U.S. custody who they are going to target and prosecute first and that raises real concerns.

If this is about Iraqi ownership and control, Iraqis should be allowed to identify the people they want to prosecute. But if the CPA is trying to covertly manage this process, I think that's going to send a very bad signal in terms of its legitimacy and in terms of its impartiality.

GERRI MORRIS, CNNfn ANCHOR, THE FLIPSIDE: What's a better (INAUDIBLE)?

VAN ZYL: Well I think the United Nations needs to be playing a crucial role in this. And there could be and should be a process of recruiting international judges and experts and investigators.

And it's worth noting that the CPA and the U.N. themselves have conducted independent inquiries into the Iraqi judicial system. Both of their reports say that the Iraqi judicial system is chronically dysfunctional. It's incapable of running serious complex human rights trials. And so you're going to need a robust infusion of international expertise to work with the Iraqis.

The problem is how you get that because if that comes through the CPA and through the U.S.-led administration in Iraq, there'll be questions about their impartiality and their independence. It must come through the U.N. and we've got to put them back into the picture here.

MORRIS: Just a reminder, please do be in touch with us on this topic. A lot of questions can be raised. We have ours but we welcome yours and your comments. Number there on the screen, 1-800-304-3638 or an e-mail to THEFLIPSIDE@CNN.COM.

Stephanie?

STEPHANIE ELAM, CNNfn ANCHOR, THE FLIPSIDE: Let's take it back to the tribunal process. Who can be tried and how is it going to be affected?

VAN ZYL: Well the first question that you've got to look at is the overall legitimacy and I want to dwell on that for a moment then we'll get to this question. I mean - and you've got to look at the U.S.'s track record on international justice. The United States has sought to subvert the international criminal courts and they have detained people on Guantanamo Bay and denied them due process rights and that's extremely controversial.

And they have a track record of siding with the abusive regimes in the Middle East. So, if the tribunal comes into being too closely associated with the U.S., then all of the questions about who is going to be tried and in what order they'll be tried will be secondary because governments in the Middle East will really seek to discredit this tribunal and that's a real shame because it could send an extraordinarily powerful signal in the Middle East.

Here's the first time people are being held accountable for human rights abuse and that could really sort of send a message that you've got to improve your own human rights track record.

ELAM: And if you actually remove the large American fingerprint from that, how would it go about happening? Obviously, I can see what you're saying. The point being it'd be better for the Middle East to see that this is how it's happening from an Iraqi standpoint but what would happen if it did come without that fingerprint?

VAN ZYL: Right. A couple of practical steps you can take. Firstly, the Iraqi governing council and the U.N. could set up a joint committee to recruit international experts, investigators, prosecutors and judges right now, they could undertake the necessary case preparation and investigations and in about six months time in mid 2004 they will be a new genuinely Iraqi government established.

So that new government which doesn't have the sort of questions about its legitimacy that everybody is asking, that new government could establish the tribunal. We wouldn't waste time between now and then because we could undertake the necessary preparatory work and then the trials could commence shortly thereafter by a new legitimate government.

WILLIS: Paul, though, if we do help with the preparatory work that you describe, I mean, part of the problem that we've had on the ground in Iraq is that no matter what happens, the U.S. gets blamed or it's believed that the U.S. did this. You know we see the U.N. offices being bombed near the Red Cross. It doesn't really matter who the actor is, it comes back to the U.S. So, even if we were to wait, if we were to help at all, wouldn't it still come back to us?

VAN ZYL: Well, you know, there's no doubt that the U.S. action in Iraq and the imprint in Iraq continues to attract controversy and I think what we need to try and do is allow the U.S., I mean, the U.S. has a long track record internally of having the rule of law, a strong commitment to civil liberties and human rights so it's not to say the U.S. couldn't play some kind of role here but it has to do it in some kind of multilateral framework.

Nobody is naive enough to say that that's going to dispel the security issues and that's going to suddenly quell the resistance but our options are limited. What we have to try and do is maximize the legitimacy at this particular point.

MORRIS: There is a caller who'd like to speak to you.

Mr. Mines from Maryland, thank you so much for joining us. What's your question or comment?

CALLER: Great. I'd like to make a quick comment. In regards to the comments that the commentator made about the comment of having the U.N. delegating everything in Iraq in regards to the war crimes, tribunal and all this other stuff, I think that the first bomb go off and the U.N. is off and running. I think we should stick with what the president is doing there. I think we should back up our troops who's actually on the ground. The United States have the most to lose and if anybody would say anything about having the U.N. involved in anything at all, having to do with peacekeeping and things of that nature I'll be very wary of them. And that's my comment.

MORRIS: All right. Mr. Mines, thank you. Comment from you?

VAN ZYL: Well the U.N. does have an extraordinary track record. It was behind establishments of the International Criminal Tribunals for Yugoslavia and Rwanda. It's played a role in establishing tribunals in Kosovo and East Timor and Sierra Leone. It has bags of experience and it would seem to be a shame to cut them out of this process.

And - now it's also difficult to say that the U.N. is not currently in Iraq because in relation to this process, nobody's asked the U.N. and I think that if they were to be an imaginative approach where people were to sit down with the U.N. and say how do we use your credibility, your outreach, your experience to bring in the necessary expertise, I think it would be hard for the U.N. to resist that and many people who I've spoken to in the U.N. I think would welcome it.

MORRIS: Sometimes I think people think everything is so fractured. You know it is, OK, the tribunal is supposed to do this, the Americans are supposed to do this, these countries aren't participating, here's how we need to be and that's very confusing to the public who are sitting here trying to figure out what is the policy, what should be our disposition, how should we handle these things.

VAN ZYL: Well, exactly. And I think we should also broaden this discussion away from just tribunals because even if you have the most effective tribunal in the world, it's only going to be able to prosecute, you know, 40, 50, 60 people realistically.

There are thousands of people responsible for terrible human rights conduct in Iraq and therefore, you may want to think about something like a truth commission, which would hear victims testify, give them an opportunity to express their pain, have their suffering acknowledged. Think about a reparation policy.

Think about how you would cleanse Iraqi institutions of people who are responsible for human rights abuse. So you want to really a holistic and integrated approach to this issue. That requires a proper dialogue with the Iraqi people; real transparency and I think we regret the fact that hasn't happened. That this has happened shrouded in secrecy.

WILLIS: Long process. Let's go to the next caller.

Beth in Texas, go right ahead.

CALLER: Hello. I want to ask the gentleman, you answered part of it in the last question but how do we go about getting the U.N. involved? I mean they turned us down on every other thing. They didn't want to be in Iraq. They didn't -- you know the ones that did were. Are you from Britain?

VAN ZYL: I'm not from Britain. I'm from South Africa.

CALLER: Well, I just was noticing your accent that's why I ask.

VAN ZYL: Right. Well I think it's -- you know I think the issue of how we bring the U.N. back into Iraq is a really tough and important question. And I think the issue is that we need the U.N. in Iraq. That it gives a sort of international framework. It allows many member states to contribute troops and assistance that are going to be important. So - and we've got to get the U.N. back into Iraq and I'm confident that within the right framework, the U.N. will come back in and than the tribunals, they're not going to work unless the U.N. does come back

WILLIS: Well I just have to ask this question. This is a FLIPSIDE question really. Yu know the tribunals that we've seen, particularly in Bosnia, these things have gone on and on. Some people believe that justice delayed is justice denied. And is there anyway, if we're going to recreate a U.N. tribunal, war crimes tribunal to speed the process?

VAN ZYL: That's a great question. I mean, I think we don't want to replicate what we've seen in Yugoslavia and Rwanda and Iraq. For the first case, it's going to be in Iraq. It's going to be in Arabic. There'll be significant participation of Iraqi judges, prosecutors and investigators. These are all good things. It gives ownership. It occurs where people can see it. And they'll see justice being done.

But on the other side, this is a country which has been through decades of authoritarian rule where torture was the order of the day, where no trial in Iraq took more than a couple of days. And now when you do a war crimes tribunal where you're trying to prosecute somebody for genocide, these you've got to analyze hundreds of witness statements, you've got to look at the forensic evidence, you've got to look at hundreds of documents. You can't rush those through and you need real expertise. So let's not replicate past errors. Let's take the U.N. expertise, let's blend it with Iraqis' and I think that will be effective approach.

MORRIS: We have enjoyed this conversation. There are so many other issues we could talk about, one big one, of course, and we'll need to have you back on that, is death penalty issues and what's going to happen with prosecution, who's going to be responsible for judging in these tribunals. So Paul Van Zyl, thank you so much for joining us today from the International Center for Transitional Justice. We appreciate your time.