Transcript: lessons learned from the Dujail trial, a crossfire panel.

• Position: Symposium: 'Lessons from the Saddam Trial' - Discussion

The Frederick K. Cox International Law Center sponsored the symposium, "Lessons from the Saddam Trial, "a conference drawing renowned international law scholars and practitioners to Case Western Reserve University School of Law in Cleveland, Ohio on October 6, 2006 to share their expert analysis of the historic first case before the Iraqi High Tribunal. The speakers' remarks have been edited for length.

MODERATOR:

Michael P. Scharf, Professor and Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law

PANELISTS:

M. Cherif Bassiouni, Distinguished Research Professor, DePaul University College of Law

Nehal Bhuta, Arthur Helton Fellow, Human Rights Watch

David M. Crane, Distinguished Visiting Professor, Syracuse University College of Law

Mark Drumbl, Professor and Ethan Allen Faculty Fellow Director, Transnational Law Institute, Washington & Lee University School of Law

Mark Ellis, Executive Director, International Bar Association

Sandy Hodgkinson, Deputy, Office of War Crimes Issues, U.S. State Department

CHRISTOPHER P. REID, REGIME CRIMES LIAISON, U.S. EMBASSY IN IRAQ

WILLIAM A. SCHABAS, DIRECTOR, IRISH CENTRE FOR HUMAN RIGHTS, NATIONAL UNIVERSITY OF IRELAND, GALWAY

MARIEKE WIERDA, SENIOR ASSOCIATE, INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE

TRANSCRIPT:

PROF. SCHARF: The issue is: should a foreign judge have been added to the Iraq High Tribunal bench? As you all in the audience know, the statute of the Iraq High Tribunal, which you have in your books, says that a foreign judge or judges can be added. And many people today have suggested that that would have been a solution to many of the problems. I leave it to our experts today to comment. Professor Crane?

PROF. CRANE: Yes, absolutely. It would have assisted unfortunately in the burden of legitimacy. I think it would have assisted in washing away some of the real challenges and legitimacy, that if you had a distinguished international jurist or two, I think it would have helped greatly.

PROF. BASSIOUNI: No, absolutely. Just to be a little controversial, ... my answer would be: if I were in Iraq, I would say you have tampered enough with our legal system. Let us run our tribunal. This is our business. These are our crimes and quit meddling with our laws and our legal systems and our procedures.

PROF. SCHARF: Mark Drumbl?

PROF. DRUMBL: International lawyers reflexively consider international judges to be neutral, credible, and legitimate. Populations on the ground, including victim populations, do not invariably feel the same way. Disconnects especially arise when local populations feel justice is being meted out to them instead of for them.

One of the problems with the ICTY and the ICTR is that these international institutions are not perceived on the ground as neutral. After all, the member-states from which many judges are nationals are not viewed as being neutral. These states failed to prevent the conflict that actually occurred in those two jurisdictions. Internationalization is no proxy for legitimacy.

Similarly, I would say that, for Iraqis, just because something is internationalized does not mean it is ipso facto more legitimate. There is much to be said for institutions under local control proceeding through local methodologies of accountability. There is also much to be said in terms of skepticism towards national institutions, as well. In the end, I think we need to be mindful of the ambiguities.

MR. ELLIS: No, as well ... but for the reason that international law is moving in the direction of requiring states to undertake these trials. We need to accent this new reality, and we need to provide assistance to act for domestic trials stated they meet international standards. That's where we failed here.

Ms. HODGKINSON: And I would add a qualifying no in the sense that it obviously is an Iraqi decision, and they put that provision in there [to leave open] the possibility, wondering if there would be qualified candidates who would offer themselves up for the challenge.

One of the challenges you do face when you start accepting international judges includes issues like translation. If there were not an Arab-speaking judge, understanding the tradition, throwing one judge into a panel, for example, may actually pose some of those challenges they are facing in Cambodia right now [because] the mixed tribunal judges do not speak a common language. But obviously, it is an Iraqi decision. They chose to use international advisors, and international advisors have played that role in trying to build the legitimacy, and they should have more of them.

PROF. SCHARF: David, do you want to try to rehabilitate your position?

PROF. CRANE: Well, I actually do not really disagree with what we are saying. I mean, certainly, at the end of the day, it is for and about the victims and the country, and so having been through that in Sierra Leone, I implicitly agree with that. But again, the tragedy ... is not that it is not working ... it is just that there is this little word called legitimacy ... The question was, "Could it have?" And the answer is, "Yes, it may have." And I am not backing off on yes. It is just that certainly all these points are correct, and I guess you want to get this thing going.

PROF. BASSIOUNI: You are talking like a lawyer now. It occurred to me there was a nice biblical story about how if you could find one righteous man, you would save David, and you would save Sodom and Gomorrah, and my question is: how many righteous judges in the various international tribunals that you know would you set up to the high standards that you want to offer to the Iraqi tribunal?

PROF. CRANE: Oh, see, that is not fair, Cherif. You know my feeling ... we were chatting about this over dinner last night. The Achilles' heal of any tribunal--whether it is an internationalized domestic court or a hybrid international war crimes tribunal or an ad hoc war crimes tribunal--let us be honest, it is the judges.

We have judges who are distinguished, very experienced all the way down to people who need help getting to the men's room and everything in between.

PROF. CRANE: And we had very much a problem where I was in West Africa ... we have to standardize how we train and how we deal with international judges. So you are right. I mean, I said yes, but where we would find [such a judge] other than yourself. How do you like that for a plug?

PROF. BASSIOUNI: I like that.

PROF. DRUMBL: Talk about lawyer language.

PROF. SCHABAS: I just want to back up David, because David's point was that there is a problem of legitimacy with the judges, and I think that is a valid point. And the idea of international judges, of course, at the consent of Iraq because it is an Iraqi tribunal might have done something to resolve that.

I feel people like yourself Mike [Schart] and Mike Newton and others who have done training with the judges, you describe your evolution and how you got more and more confident about them as you got to know them. And I am sure that that is true. I am sure among the judges, there are very devoted jurists who want to be fair and reasonable. My concern is not with the ones who were left on the bench; it is the ones who are gone. And I think that is the point Mark Ellis made this morning The debate, frankly, fudged it, and people talking about the fairness of the trial have not tackled that one head-on. You look at this trial head-on, the part of it that smells the most is the fact you have had three judges leave for very mysterious reasons, and we could not even get clarity on this most recent case, and that is shocking. This is supposed to be the brains trust of the Iraqi justice system. We cannot even agree on why that judge lost the job. When did you last have a trial in the United States where three judges departed in the course of a trial? That is what is so terrible about it, and that is where the problem is.

PROF. SCHARF: Bill says that is the biggest issue. Probably the biggest issue in the minds of most people was not the judges changing the guard but the assassination of the defense counsel. So the second issue is: what should the IHT do to better ensure the safety of trial participants, especially defense attorneys?

Before I open up [the question for the panel], a word of background.... Two defense counsel died during the very first week of the trial when they were assassinated. Before that happened, both of those defense counsel and all the defense counsel were approached by both the United States government and the Iraqi government and asked if they could provide them security. And also it was suggested that they do not show their faces on television. Now, the defense counsel wanted to show their faces on television, talked to the media, and they did not trust the U.S. government or the Iraqi government for security, so they turned it down. I think the U.S. government and the Iraqi government's response was, metaphorically, well, that is your funeral. It turned out it was.

After the two of them were assassinated, Judge...