Outlook: Trying Saddam
Michael Scharf
U.S. Law Professor
Monday, December 20, 2004; Noon ET
Can Saddam Hussein -- or any of his henchmen -- get a fair trial?
In Sunday's Outlook section, U.S. law professor Michael Scharf, who in October spent a week doing training seminars for the Iraqi Special Tribunal, says yes. It's not that Scharf thinks that Hussein is ever going to get acquitted of all the charges against him and walk away a free man. But he could get off on some charges. Moreover, just because someone who is guilty gets convicted doesn't mean a trial is unfair.
The question is a timely one because last week, interim Iraqi Prime Minister Ayad Allawi said that pretrial hearings in the war crimes cases against Hussein's senioraides would commence within days. On Saturday, the tribunal held the first such hearing. Two former officials appeared, including Ali Hassan Majeed, the former general and close Hussein confidant known by the nickname "Chemical Ali." Last Thursday Hussein and his defense lawyer had their first meeting, which lasted four hours
Scharf was be online Monday, Dec. 20, at Noon ET to discuss his article, Can This Man Get a Fair Trial?.
Scharf is a professor of law and director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law and author of "Peace With Justice."
Editor's Note: washingtonpost.com moderators retain editorial control
over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Mumbai, India:
Would it be possible to guarantee the safety of the presiding and witnesses otherwise it's likely that the trial would not be fiar and would never serve thepurpose for which it was set up? Michael Scharf: Ensuring the safety of the judges, lawyers and witnesses is a challenge that the Iraqui Special Tribunal is working on. As I mentioned in my Outlook piece, the judges have decided that their faces must be shown in order to avoid criticisms that the Iraqui Special Tribunal is a kangaroo court. These brave judges have reportedly been subjected to threats, but are committed to the concept of a fair trial despite the risks to their safety.
_______________________
Falls Church, Va.:
Is there any chance that the defense will be allowed to call former (and current) U.S. officials who supplied Saddam with WMD material during the Iran-Iraq war? Michael Scharf: The defense will be allowed to call all witnesses who testimony would be relevent to disproving the charges. A video link process could be set up to allow government officials to testify from their capitals and be subject to cross-examination in realtime. The Iraqui Special Tribunal cannot force foreign officials to cooperate. But such officials will be under pressure to do so to ensure that the trial appears to be a fair one.
_______________________
Anonymous:
I know he's entitled to a fair trial, but there is a part of me that really wants them to just skip right to the execution phase. Michael Scharf: At the end of WWII, Wiston Churchill of Great Britain proposed immediate execution of all Nazi leaders. Joseph Stalin of the Soviet Union agreed and handed over a list 50,000 people to executed. The United States, however, as a country committed to the rule of law, argued for a trial which would accord due process to the defendants. The thinking then was that these incredible events had to be proved by creditable evidence in a court of law. I believe the same is true today, nothwithstanding the desire of many Iraquis to see swift justice imposed on Saddam.
_______________________
Virginia:
The American Association of Law Teachers seemed to be pro-Saddam and anti-U.S. Can can U.S. law professors be fair and unbiased? Michael Scharf: I have long body of writings which you can turn to see that I am an independent voice in the legal academy.
_______________________
Wheaton, Md.:
During the trial, do you think Saddam Hussein will give details on how Jaques Chirac and other world leaders had full knowledge of Hussein's criminal intentions? Michael Scharf: I do think that Saddam will try to raise what is known as Tu Quoque (you also) defense. However, the judges will likely be very careful to only permit testimony and evidence that is directly related to refuting Saddam Hussein's own culpability for the crimes charged.
_______________________
Laurel, Md.:
To a lot of Americans, Hussein's most important crime was the invasion of Kuwait.
How do Iraqi citizens feel about the Kuwait border dispute and the invasion? Do they think it was right, even if they don't like Hussein?
Was it a crime under international law; or is an invasion of disputed territory a legitimate act of a sovereign nation?
Michael Scharf: In negotiating the text of the Iraqui Special Tribunal statute, the Iraqi negotiators insisted on Aricle 14 which permits the tribunal to prosecute Saddam Hussein for the unjustified invasion of Kuwait. I believe this reflects general Iraqi opinion that the invasion of Kuwait violated international law.
_______________________
London, U.K.:
Dear Michael,
Don’t you think that localized Iraqi courts be a reasonable method to try Saddam, that will give people an opportunity to provide testimony coupled with evidences at the scene of the crime. The other important factor is the participation of international jurists in the process.
Let's not keep Saddam and his henchmen indefinitely detained, there must be a clear deadlines to go ahead with the trail.
Thank you ...
Handrin Marph
goeza-btinternet.com
Michael Scharf: The Iraqi Special Tribunal was created because the ordinary Iraqi courts were generally seen as incapable of fairly and effectively prosecuting Saddam Hussein and his lieutants.
The judges of the Iraqi Special Tribunal have been carefully vetted to ensure that they could impartiailly preside over such trials. They have received training in the specialized field of war crimes and crimes against humanity, and their are being assisted by respected and impartial NGOs including the International Bar Association, in addition to the US Department of Justice office in Bagdad.
_______________________
Monterey, Calif.:
Whether it's the international court, the Geneva Conventions, the United Nations, or just plain old diplomatic relations -- the Bush adminstration has amazingly managed to distort and gut reasonable limits on international behavior whenever and wherever it suited their purposes.
How can we -- how do we -- talk about "international justice" in this sense? I am no fan of Saddam Hussein, but George Bush and the United States have just as much -- if not more -- to answer for in terms of war crimes at this point.
Would you at least explain how it might someday be possible that justice will be served?
Michael Scharf: A year ago, I had written that an international tribunal should prosecute Saddam Hussein. But with French and Russian opposition to the US invasion, it was clear that those two permanent members of the security counsel would use their veto to prevent the security council from establishing a tribunal or expanding the jurisdiction of the Yugoslavia or Rwanda tribunal. The new permanent international court is precluded by its statute from prosecuting crimes that occurred before June 2002, so that international court was not available for this case. I think US prosecutions before military commissions would have been subjected to the most criticisms s of all that left Iraqi trials by Iraqi judges with international assistance as the only viable option.
_______________________
Bowie, Md.:
What role does ethnicity play in measuring a crime against humanity?
Stalin and Mao murdered more of their own countrymen than Hitler did, but they were primarily of their own ethic group. Are Saddam's actions against the Kurds more serious than they would have been against Sunnis or Shiites?
Michael Scharf: Under international law crimes against humanity are atrocities like torture and murder committed against a civilian population on a widespread and systematic basis. Ethnicity is not a a required element of the crime. On the other hand, genocide is defined as atrocities committed against and ethnic, national, religious or racial group with the specific intent to destroy that group. Therefore, ethnicity of the victims is a required component of the crime of genocide.
_______________________
Washington, D.C.:
Who paid you to train the Iraqi lawyers in London? And do you believe that in one week based on your meeting a group of inexperienced Iraqi judges you can evaluate the adequacy of Iraqi judiciary for what is sure to be one of the most complex trials history has ever seen?
Michael Scharf: I provided my services for free. The week-long session was just the first of several training sessions. The judges of the Yugoslavia Tribunal, Rwanda Tribunal and Special Court of Sierre Leone also received a similar amount of training to help them get up to speed on the unique field of international humanitarian law.
_______________________
Victoria, British Columbia, Canada:
What lessons were learned from the Nurmberg Trials to most effectively from a prosecution perspective try and convict Hussein?
Michael Scharf: The lessons of Nuremberg include the following: for the process to be proceived as fair, defedants must be represented by excellent legal counsel; defendants cannot be tried in absentia; defendants must have the right of cross-examination; defendants must have access to any exculpatory evidence in the possession of the prosecution; evidence obtained by torture must be excluded; and defendants must have the right of appeal. All of these rights are now guaranteed by international human rights treaties and will be enshrined in the rules procedures of the Iraqi Special Tribunal.
_______________________
Washington, D.C. :
Are you aware that the president's lawyers, the chief prosecutor of the Hague Tribunal, and the High Commissioner for Human Rights have al called for an international tribunal and said that an Iraqi tribunal cannot be independent and impartial or observe other basic human rights?
Michael Scharf: I also advocated an international tribunal, but given the political realities of the situation (described in the answer to a prior question), the only option was a trial in Iraq, by Iraqi judges, with international assistance. I think it was premature of such persons to say that the Iraqi Special Tribunal will not guarantee fundamental international rights, since the Rules of Procedure of the Tribunal have not yet been issued. After the Rules are promulgated, I believe this type of criticism will fade. Rules are
_______________________
Washington, D.C.:
How have the judges of the Iraqi Special Tribunal "been carefully vetted"? You are wrong. Instead these judges, are the only ones who came forward because others were scared or merely throught that the government and trial was illegal and illegitimate.
Michael Scharf: In a separate program sponsored by the international legal assistance consortion based in Sweden, international lawyers including myself have been traveling each month to Dubai to train ordinary Iraqui judges in the rights of the defense. I learned that there are over 50,000 practicing lawyers, prosecutors and judges in Iraq. That means there were literally thousands of qualified jurists to select from for the Iraqi Special Tribunal. It was certainly not the case of being stuck with the only judges who volunteered for the job.
_______________________
Paris, France:
Hello Profesor Michael Schaf. The trial of Saddam Hussein and his complices, is not very important for the future of Iraq. If the tribunal condemn Saddam for the crimes against humanity or for genocide, this does not change the critical situation in Iraq. In the North Iraq we have Iran and if the Shiite in Iraq to have a majority in the elections so the all region to have dominated by Shiite clerics. I don't believe the Saddam trial is important for Iraq people. Thank you.
Michael Scharf: Some believe that exposing the evidence of Saddam Hussein atrocities via Iraqi Special Tribunal proceedings will help diminish support for the insurgency. In the short run, I think you are right no matter what happens at the trial those that support Saddam Hussein will continue to support him and argue that he was unfairly convicted. This is what happened after the Numberg trial of 1945. A poll taken of Germans after the trial indicated that 90% of them thought that the Nazi leaders had been unfairly convicted. But 60 years later, because of the record of the Numberg tribunal, the German people overwhelmingly believed that the convictions were proper. It may take a number of years but the record established by the Iraqi Special Tribunal will one day serve as a definitive history of the crimes of the Saddam Hussein regime.
_______________________
Washington, D.C.:
Why are the men being held for trial in U.S. custody and not with the Iraqis forces?
Michael Scharf: In June 2004, judicial custody of the Iraqis was transferred to the Iraqi government, but physical custody remained with the United States for reason of security.
_______________________
St. Johnsbury:
Isn't Saddam being tried by his political
enemies? If so, isn't the ultimate outcome
a foregone conclusion?
The issue is clouded because of the well-
known atrocities committed by Saddam
and his late sons against his own
people, so it is easy to say that any panel
would come to essentially the same guilty
veridict. But does that make trial by ones
enemies any the more fair?
Michael Scharf: Judges who had been in exile were excluded from selection to the Iraqi Special Tribunal because they were seen as being to biased. High-level judges who served during the Saddam Hussein regime were also excluded. Having spent a good bit of time with the judges who were selected, I'm convinced they will be able to fairly judge the defedants and will rule for aqquital where the evidence is insufficient.
_______________________
Gaithersburg, Md.:
To the extent that legitimate non-political criminal trials have been held there, how do trials in Iraq (or nearby culturally similar nations) differ from American trials in terms of their procedures or rules? What effect will this have on Saddam's trial?
Michael Scharf: There is one big difference between the Iraqi court system and the American court system. Iraq uses a civil model where cases are prepared by an investigating judge rather than a prosecutor. Thus, the proceedings involving Chemical Ali this week are really not judicial proceedings but pre-trial investigative proceedings.
_______________________
Washington, D.C.:
Dear Michael,
I have followed your online chat with interest...even encourging some of my volunteers to participate. Rather than debate your many wrong or misleading statements online I would like to invite you to debate me in person. Maybe the Washignton Post would even be willing to host such a debate at the National Press Club or even at your law school.
As you udoubtedly am aware I am one of the lawyers for Mr. Saddam Hussein and I am intimately familair with the proceedings in this case.
Regards,
Curtis F.J. Doebbler
Email: doebbler-starpower.net
Michael Scharf: Dear Curtis,
I would enjoy a public debate with you. Would you have any interest in coming to Case Western Reserve for such an event? By the way, you spelled Washington wrong.
_______________________
Evergreen Park, Ill.:
This is a second attempt to get an answer. In your legal opinion is Bush as guilty as Hussein of crimes against humanity? Will he be held accountable for the murders he is responsible for?
Michael Scharf: During the 2003 invasion of Iraq, the Greek Bar Association filed a complaint with the international criminal court, arguing that the United States and the United Kingdom had committed war crimes and crimes against humanity in Iraq. Although the US is not a party to the international criminal court, the United Kingdom is a party, and thus the international criminal court examined these charges. No action has been brought in the case. I think this suggests that there can be no equalivalance between the type, scale, and intent behind the atrocities committed during the regime of Saddam Hussein and the alleged violations committed by the United States and United Kingdom. Note however, that the international criminal court does not jurisdiction for the crime of aggression, the one crime that many countries feel was committed in the 2003 invasion.
_______________________
Anonymous:
Its hard to predict or give a straightforward response to
the query. Prima facie, one senses a great degree of
skepticism about the way things have moved or are
moving with respect to handling of affairs in Iraq, both by
the US officials and the local administrators. Given that
Saddam is one of the most heinous criminals of modern
history, there is an element of doubt vis-a-vis the
impartiality of the judical system and the deliverers of
justice, i.e., the judges. The situation reminds one of the
Romanian dictator, Nicolae Ceausescu, where there was an
enormous amount of public outrage and venom against
him due to all the crimes that he committed against his
own people during his oppressive rule. One remembers
that at the time of his execution Romanian guards sprayed
bullets on him just as if they were personally hurt by this
regime. Notwithstanding the fact that Saddam deserves
the worst of punishments possible, yet, he still reserves
the right to a fair trial. In the long run, it all depends on
how the procedures of law are followed and how well the
Iraqi judges are able to orchestrate the process. This
actually may not be just a trial of an individual, Saddam
Hussein, it may prove to be the trial of the entire Iraqi
system of justice.
Michael Scharf: Well put!
_______________________
Riverdale, Md.:
Won't the judges, no matter the evidence, feel they have to convict Hussein of SOMETHING?
Michael Scharf: I do think based on the evidence that has been reported to the public that there are many things Saddam should be convicted of. But the judges have acknowledge that some of the charges may be difficult to prove and await seeing the evidence before they can decide. This is the hallmark of a fair procedure.
_______________________
Automatically Update Page
Get New Responses
Submit Question
| 
