Panel asks: How will crimes under Saddam Hussein be prosecuted in Iraq?

David Scheffer, former ambassador-at-large for war crimes issues under President Bill Clinton, speaks Oct. 23 as part of the Korn Lecture Series in Myron Taylor Hall at the Law School. Sheryl Sinkow

By Linda Myers

"Accountability for War Crimes in Iraq" was the title of a panel discussion at Cornell Law School Oct. 23. The subject was whether crimes committed under Saddam Hussein's regime might eventually be prosecuted with legitimacy in Iraq.

Decisions now need to be made in Iraq about how broad a net to cast in prosecuting such acts as the brutal persecution of the Kurdish minority under Hussein and what courts and laws will hold perpetrators accountable.

The discussion, which was introduced by Cornell Law Professor David Wippman, an expert on international criminal law, was part of the Henry Korn Lecture Series at the Law School, an annual presentation on legal and public service issues. It featured James Finkel, special assistant for war crimes and related issues to the director of the CIA; David Scheffer, former ambassador-at-large for war crimes issues under President Bill Clinton; and Ruti Teitel, professor of comparative law at NYU Law School and author of Transitional Justice. The discussion took place in the Stein Mancuso amphitheater in Myron Taylor Hall and was attended by an audience of more than 100, including Henry Korn '68, an attorney for whom the series was named through a gift by former client Nathaniel Lapkin, an early CEO of Warner Bros.

Teitel stressed the urgent need to restore rule of law in Iraq, but warned the audience not to look for quick fixes. "Justice in periods of transition reflect compromise," she said. For example, "you may have to choose security over fairness," at least in the short term.

But while the transition from dictatorship to open regime won't be smooth, "you do have to send a normative message" that supports rule of law, Teitel said. Generally that's done by going after those most responsible for the worst crimes, those against humanity, as in Yugoslavia and Rwanda, following the genocides there, said Teitel. In Iraq and elsewhere, "you want a narrow target [of crimes to prosecute] in order to create some stability."

Establishing a judiciary that's both competent and seen as legitimate by people is another dilemma. "The judiciary in place during the prior, Baathist regime is obviously compromised, but should there be tribunals run by Iraqis with U.S. support or by the U.N., with its competence and legitimacy?" Without a clear answer, the temptation is to postpone. The danger? Evidence might not be preserved for legitimate trials later on, Teitel warned.

Scheffer said that under the Clinton administration, the State Department assembled a formal Working Group on Transitional Justice in Iraq, which put together a comprehensive 1,000-page plan for establishing rule of law in post-Saddam Iraq. The plan, which "contained sophisticated work on law reform in Iraq by exiled jurists and a blueprint with many options ... was put on the shelf in the Pentagon and, as I understand, not opened," Scheffer said.

One flaw in the current Bush administration plan, said Scheffer, is that by rejecting the United Nations' offer to play an administrative supervisory role in Iraq following the U.S. invasion, it has exposed the United States to much more liability, under international occupational law, than there would be if the U.N. Security Council had authorized U.S. activities. For example, if it is proven that Halliburton, a Texas-based energy firm under government contract to sell gasoline in Iraq, engaged in price gouging there (as it was recently accused of doing), the United States could be held liable for any damage caused by excess costs being passed onto the Iraqis.

In addition, occupational law demands that occupiers not transform the countries they occupy, noted Scheffer. While the international community, even those critical of the United States incursion into Iraq, clearly supports transformation, engaging in it "creates a liability trap" for the United States.