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2004-12-15

Justice in Baghdad? A Debate Between Saddam’s UK Lawyer and a US Attorney Who Helped Create Legal System in Occupied Iraq

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We host a debate between Abdul Haq Al-Ani, a London-based attorney who is one of Saddam Hussein’s lawyers and Michael Scharf, one of five international law experts who helped train Iraqi judges after major combat ended in the country. [includes rush transcript]

Almost a year to the day after Saddam Hussein’s arrest, Iraq’s unelected, interim Prime Minister Iyad Allawi made a surprise announcement that his government will begin trial proceedings against some of Saddam’s top lieutenants. The announcement came during Allawi’s address to the interim national assembly on Tuesday.

Allawi said, "I will tell you clearly and specifically that next week, God willing, the trials of the symbols of the former regime will begin."

In his address, Allawi went on to say that the trials had been delayed by what he called preparation difficulties and complex legal procedures. But he said "We have finished the procedures and nominated (judges) and I can say, with certainty that the trials will begin next week and continue."

The announcement reportedly took US officials and even Iraq’s Justice Ministry by surprise. Iraqi Justice officials were quoted by news agencies as saying they had heard nothing about any start to the prosecution process next week. A US official also said the news caught him by surprise and another Iraqi official said it was an election stunt by Allawi, who announced his candidacy today in Iraq’s planned elections set for January 30.

The former Iraqi officials are set to be tried by a special Iraqi tribunal for cases of genocide, crimes against humanity and war crimes. Some of the men and women who ruled Iraq for decades could face the death penalty if found guilty.

Iraq’s Defense Minister announced today that Ali Hassan al-Majid, one of Saddam Hussein’s top military figures, will be the first leader of the former regime to be tried for war crimes. Majid is accused of some of the worst crimes committed during Saddam’s decades in power, including the gassing of up to 5,000 Kurds in northern Iraq in 1988.

To discuss these trials and the case of Saddam Hussein, we are joined by two people on different sides of this story.

  • Abdul Haq Al-Ani, London-based lawyer. He is one of Saddam Hussein’s lawyers and is also one of the lawyers representing former Iraqi Deputy Prime Minister Tariq Aziz. Last year, he himself was arrested in London on charges he had violated the sanctions on Iraq.
  • Michael Scharf, Director of the Frederick K. Cox International law Center at Case Western Reserve University in Ohio. He worked in the State Department during the administrations of George HW Bush and Bill Clinton. More recently, he was one of five international law experts who helped train Iraqi judges after major combat ended in the country.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: To discuss these trials and the case of Saddam Hussein, we’re joined by two people — Michael Scharf is director of the Frederick K. Cox Law Center at Case Western Reserve University in Ohio, and Abdul Haq Al-Ani is a London-based lawyer, one of Saddam Hussein’s attorneys. We’ll begin with Michael Scharf, will this happen?

MICHAEL SCHARF: Amy, there is no way the trials will begin next week. First of all, the Iraqi Special Tribunal is independent and the prime minister and defense minister cannot control when it begins its trials. Secondly, the rules of procedure and evidence are still being drafted and they can’t begin the trials until after that. Thirdly, there’s always been a consensus that they wouldn’t want to start until the elected government was in place, because they would give the defendants an argument under the Geneva Conventions that this is an illegitimate tribunal. And finally, I have been involved in training the Iraqi judges and we still have several training sessions scheduled for the new year, so I know they’re not intending to begin any time soon.

AMY GOODMAN: So, are you calling Iyad Allawi a liar?

MICHAEL SCHARF: What I’m saying... there is one way to interpret what he said consistently with the truth. It is possible they will have arraignments in the next few weeks where they bring these defendants to the court, and they appoint a defense counsel, and they read the charges, and they ask if they plead guilty or innocent. And I suppose in a stretch, you could say that the trial has begun. And that would be perfectly consistent with where things stand, but the actual trials will not begin until mid-time next year.

AMY GOODMAN: Abdul Haq Al-Ani with us, the London-based attorney, one of Saddam Hussein’s lawyers also one of the lawyers representing the former Iraqi deputy prime minister Tariq Aziz. Last year, he himself was arrested — that is our guest, Abdul Haq Al-Ani — on charges he’d violated the sanctions. Your response to this announcement.

ABDUL HAQ AL-ANI: Salam alaikum. Well I don’t know what to take of Iyad Allawi. He has been saying the last few months every now and then that there is going to be a trial, and he is immediately rebuked by the Americans who at the end of the day control the show. I don’t know why he keeps talking about, since he has no control. I don’t think there’s going to be a trial next month or whatever or next two months. It’s a political decision, which is going to be decided by the Americans, and Iyad Allawi has got no control. The anomaly of this mess is that the Americans hold the prisoners. Allawi seems to assume legal jurisdiction over them, which he hasn’t got, and at the same time claiming there is a legal basis for trying them. I’m very surprised that I’ve just heard your speaker talking about the court. Which court? Under which law is it created. There’s no law in Iraq which allows the people to be tried for war crimes. The Iraqi law, which exists under the Hague Regulations does not allow them to be tried, and — under any other law. If the United Nations wants to create a special tribunal, it should create such, but not a couple of American professors somewhere teaching Iraqi judges to create the kangaroo or camel court — rather than a kangaroo court — to try Iraqis under fictitious legal principles. This is a charade that’s never been seen internationally, and I don’t know how Americans could really stand and argue for it. I honestly do not understand. Under which laws are you people talking about? Which court? Which law made that court? It’s Bremer who created that court. He has no authority to create a court to try people in Iraq. He has no authority to pass any regulation in Iraq. Allawi changed the Iraqi legal system which under the Hague regulations, he has no authority to do so.

AMY GOODMAN: Let’s put the question to Michael Scharf, one of the five international law experts who trained Iraqi judges.

MICHAEL SCHARF: Amy, when I first heard about the court, I felt very much like your other guest today. I even wrote an article saying that this court seemed to me to look like an American puppet tribunal, but the more I learned about the court, especially when I got up to London spent a whole week getting to know the judges and learning how this was going to proceed, I learned that they have an awful lot of independence and autonomy and even the Department of Justice office in Baghdad, which is assisting them, has been given instructions from Washington they’re on their own. They won’t be given guidance or instructions on how to — the timing of the indictments or who to indict, or how to proceed. Their only instruction is do what you think is right. And so, what I have learned from working with the judges is that this Iraqi special tribunal, which is consistent with international law, provided that the elected government ratifies it, is capable doing a fair and effective trial of Saddam Hussein.

ABDUL HAQ AL-ANI: This is a retrospective activity that does not exist at law. I’m sorry to hear an international lawyer talk about this rubbish, I’m sorry to say that. But what Iraqi government is going to ratify what has happened before it? This court exists now without jurisdiction. It has no authority to act. What do you mean independent judges? An independent judge appointed under the Iraqi constitution has no authority to try Saddam Hussein. He does not have that authority. Everything he is doing now is illegal, and I’m — I don’t know if it gets the — if they get advice from Washington. Why should Washington decide what happens in Iraq?

MICHAEL SCHARF: You know, I expected this — I expect the defense counsel to state these arguments, especially in front of the tribunal. In fact defense counsels have argued that the Rwanda tribunal, Yugoslavia tribunal, and the special court for Sierra Leone have been illegal or outside of international law, and when the judges look at those arguments very carefully and look at the precedents, they have always rejected the arguments.

ABDUL HAQ AL-ANI: I’m sorry. All of these tribunals that you are talking about have had a mandate from the Security Council. You go get a Security Council mandate to set up an international court in Iraq, and that will be legal, but don’t you just go and pick a third grade judge in Baghdad and tell me he’s independent — appointed by Bremer — and tell me he’s independent. None of the judges sitting on the bench — so-called bench — has got any experience in law. These are political appointees. If you go get me a tribunal like Milosevic, I accept that, but don’t appoint judges who have no authority under Iraqi law to try Iraqi officials and tell me this is legal.

MICHAEL SCHARF: I met the judges. I don’t think you know what you are talking about. These judges have quite a bit of experience, but in general —

ABDUL HAQ AL-ANI: You met them now? You know them now?

MICHAEL SCHARF: Let me just say this. No judge who has —

AMY GOODMAN: One person at a time. Michael Scharf, who are these judges? Let Michael Scharf explain who they are and you can respond...

ABDUL HAQ AL-ANI: ...We’re tired of this.

MICHAEL SCHARF: Can you please let me finish?

AMY GOODMAN: Abdul Haq Al-Ani.

ABDUL HAQ AL-ANI: We don’t want you in Iraq. We don’t want any meddling. We have enough legal experience. We don’t want any American rubbish, any American breach of international law anymore. Thank you very much.

MICHAEL SCHARF: Amy, I think you’re seeing what Saddam Hussein —

AMY GOODMAN: Let’s let Michael Scharf respond and then, Abdul Haq Al-Ani, you can talk about who these people are. Michael Scharf.

MICHAEL SCHARF: : I think you’re seeing from Abdul what the defense of Saddam is likely to look like. Very emotional, not necessarily grounded in law. Excuse me, can I finish, please?

AMY GOODMAN: Yes. Go ahead.

ABDUL HAQ AL-ANI: ..try Saddam under international law...

AMY GOODMAN: Abdul Haq Al-Ani, let Michael Scharf explain who the lawyers are.

ABDUL HAQ AL-ANI: I will arrest you at the London airport.

MICHAEL SCHARF: Ok, so what I was saying...

ABDUL HAQ AL-ANI: ...arrest you as a criminal because you have breached every single possible and international law. I challenge you to tell me when you have the — when you arrive in London I’ll have the indictment.

MICHAEL SCHARF: I’m going to let you speak if you let me finish my statement.

AMY GOODMAN: Ok, let — just let Michael Scharf finish his statement.

ABDUL HAQ AL-ANI: I represent a detainee in Iraq, by what authority are you talking? Who appointed you? You tell me.

MICHAEL SCHARF: Can I speak now?

AMY GOODMAN: Yes. Go ahead, Michael Scharf.

MICHAEL SCHARF: What I was saying even with the international tribunals appointed by the Security Council, none of the judges had experience in war crimes law. There just aren’t that many people in the world that have the experience. Basically, they’re the old Nuremburg prosecutors. I have one on our faculty at Case who is 85 years old and has been very helpful to me. But those aren’t the people being selected even for international tribunals. So these judges, you’re right, they don’t have experience in war crimes trials. And in fact they’re not high level judges because those were seen as corrupted under the Saddam Hussein regime and they’re not exiled judges because those were seen as having a grudge to bear. These are judges who were vetted carefully to make sure — They were vetted both by the provisional government with the assistance of the Justice Department.

ABDUL HAQ AL-ANI: ...a bunch of incompetent people appointed by Bremer. You are telling me that I appoint incompetent people and then say they are competent. That’s brilliant. By which law is that functioning?

AMY GOODMAN: We’re going to break and then when we come back, —

ABDUL HAQ AL-ANI: Have to speak to the question by what authority is he functioning? This is fundamental to law. But — who appointed him to function in this position? I want that answer. He’s a lawyer... he should tell me who appointed him to function in his capacity.

AMY GOODMAN: Okay, Michael Scharf, your response.

MICHAEL SCHARF: Under the provisional law of Iraq —- he’s not letting me respond. Ok, under the provisional law of Iraq, they have established the Iraqi special tribunal with a statute -—

AMY GOODMAN: Okay are going to go to a break and then we’re going to come back. Michael Scharf at Case Western Reserve University in Ohio is one of five international law experts who helped train Iraqi judges. Abdul Haq Al-Ani is a London-based lawyer hired by Saddam Hussein’s Jordanian lawyers to represent Saddam Hussein in London, also represents among others, the former Iraqi Deputy Prime Minister Tariq Aziz.

[break]

AMY GOODMAN: We’re continuing with our discussion about law in Iraq, and who is actually in charge, who has authority. The issue of Iyad Allawi, the unelected Iraqi Prime Minister, announcing by surprise yesterday that trials will begin next week for Saddam Hussein’s aides in Iraq. Our guests are Michael Scharf, who is the director of the Frederick Cox International Law Center at Case Western Reserve University in Ohio. He worked in the State Department during the administrations of both George H.W. Bush, as well as Bill Clinton. More recently, trained Iraqi judges after major combat ended in Iraq. Abdul Haq Al-Ani is also with us, one of Saddam Hussein’s attorneys as well as one of the lawyers representing the Iraqi Deputy Prime Minister Tariq Aziz. I wanted to ask Abdul Haq Al-Ani, where are these people right now? For example, Tariq Aziz, Saddam Hussein?

ABDUL HAQ AL-ANI: Who knows? Well, the Americans. Nobody — you see, under international law whether they are civilian detainees or prisoners of war, there are regulations. You civilized people in the West since the second World War devised the so-called Geneva Conventions which were meant to protect people at a time of war. Now, when Iraq was occupied, every single principle under the Geneva Convention has been breached. We are not told where these people are being held. They have not been allowed to receive legal advice. They have not been able to be seen by their families. They have been denied their basic rights for the last 18 months. You ask me, you ask the Americans, you ask your legal advisers in Washington to tell them what has happened to the Geneva Convention, which protected these people? We don’t know. Not a single lawyer has been able to see any of these detainees. We don’t even know under which law they have been held, at what treatment they have received, even the international Red Cross has breached the Geneva Convention by entering into a secret agreement with the Americans not to discuss the affairs of the detainees with their families, which is fundamental breach of their basic human rights. We don’t know. Nobody knows except those who are holding them.

AMY GOODMAN: Well, Michael Scharf, what about this? In fact, Abdul Haq Al-Ani went to try to see Tariq Aziz, the Deputy Prime Minister, at the airport where he believed he was being held, and he wasn’t allowed to. What about the fact that none of these men have been able to see their attorneys?

MICHAEL SCHARF: Well, here’s the interesting thing about that. The Iraqi special tribunal and the Department of Justice Baghdad office have created a process for Iraqi lawyers to register to represent any of the defendants that are being held in custody. And as soon as they register and they are the lawyer on record, of course they’re allowed under international law to see their clients. And what’s most surprising is that Abdul and his colleagues have refused to do this, and I think it’s because they want to manufacture an illegitimate argument to attack the process, an argument that’s not really true, because all they have to do if they want to see their clients is register. There are 50,000 or so Iraqi trained lawyers that are registered to practice in Iraq. The only requirement is that the lead counsel who registers has to be somebody who is a registered lawyer in Iraq. So, there’s plenty of people who could be doing this, and none have stepped forward yet.

AMY GOODMAN: Abdul Haq Al-Ani, your response?

ABDUL HAQ AL-ANI: That’s a lie. That is a lie. That is a blatant lie, because when I went to Iraq, there was not even a tribunal set up, I met the colonel of the presidential palace who claimed to be the adviser to the American C.P.A.

MICHAEL SCHARF: When was this?

ABDUL HAQ AL-ANI: I forgot his name.

MICHAEL SCHARF: When were you there? Tell me when you were there?

ABDUL HAQ AL-ANI: Can I speak, please

MICHAEL SCHARF: When was that, though? Can you clarify that?

ABDUL HAQ AL-ANI: In July, 2003.

MICHAEL SCHARF: Okay. But we’re talking now about —

ABDUL HAQ AL-ANI: Forget about —

MICHAEL SCHARF: September, 2004, and I’m not lying. I’m telling you how things are now.

ABDUL HAQ AL-ANI: Let me finish, let me finish, please. I let you finish. I didn’t interrupt you.

MICHAEL SCHARF: Okay, go ahead.

ABDUL HAQ AL-ANI: I met the colonel. I asked him under which law you are holding Tariq Aziz. Is it international law? He said no. Is it American you law? He said no. Is it Iraqi law? He said no. I said under which law? He said, we decide when he is entitled to get legal aid. That’s about the most blatant breach of law I have ever heard. Don’t tell me I don’t give a damn about who the judges are in Baghdad and the process of — I recognize — I have no problem, I can apply tomorrow to go see Tariq Aziz, but I can assure you, I want to see Saddam Hussein next week. If you are really competent, arrange it for me, I will go to Baghdad and see him tomorrow. That’s all, all fictitious, because you know the fundamental principle, these people have been denied their basic human rights. You know it and the longer you deny it, the more the cruelest, unprincipled, unlawful principle you are upholding, which is at the heart of the American invasion, which is at the heart of the decadence of American society, which elected a man like George Bush who doesn’t even know where Geneva is let alone he knows what the Geneva Conventions are. This is where the problem is.

AMY GOODMAN: Abdul Haq Al-Ani, what about —

ABDUL HAQ AL-ANI: …in the world came to invade the most civilized people. We gave you light. We gave you alphabet. We gave you — all you’ve got is a grudge against our civilization. You’re bankrupt culturally, morally, legally. You have got the phantoms, the F-16s, the F-18s, the tanks. You can do that. But culturally, legally, morally, you are completely bankrupt. Thank you very much. I don’t have any more time to talk to any trash of a lawyer in America. Good day to you.

AMY GOODMAN: Abdul Haq Al-Ani, a question, though. Why have you not just registered now? Is it that you are not recognizing the authority, are you saying it’s an illegitimate authority in Iraq? Why not register now as Saddam Hussein’s lawyer in Iraq?

MICHAEL SCHARF: I think he signed off, Amy. But I think the answer is a little bit clear by his behavior. He was talking about the situation during the war a year-and-a-half ago. I’m talking about the situation as it exists today. The lawyers, including Abdul, are still claiming that they cannot see their clients, but there is a process in place, and if they register, they will be allowed to see their clients, and the Justice Department and the Iraqi special tribunal judges are very anxious to have these defendants be represented by lawyers, and they want that to happen as soon as possible.

AMY GOODMAN: What’s the difference between July 2003, when Abdul Haq Al-Ani went to Iraq? He is an Iraqi attorney, went to the Baghdad airport and was not allowed see his client. What’s the difference?

MICHAEL SCHARF: Since then, sovereignty has passed to Iraq. At the time he was there, it was before the United Nations Security Council resolution was adopted. Bremer was still running the country as an occupied country. He was trying to deal with occupied military forces. Now, sovereignty has switched over, including judicial sovereignty, and there is a judicial process in place to make sure that the Iraqi special tribunal is a legitimate court that follows the human rights that are required under international law.

AMY GOODMAN: But as you’re saying right now that there is no legitimate way to proceed with any trials next week.

MICHAEL SCHARF: Well, I would say that they should wait until the elections, and have the elected government approve the Iraqi special tribunal to erase any argument that the provisional government was not authorized to create the tribunal. It’s clear under international law, that an occupying government cannot create a special tribunal. It’s unprecedented and unclear what a provisional government can do, and so, the thought was always let’s wait for the elected government to approve this process, and once, then, they can begin the trials.

AMY GOODMAN: Well, I want to thank you for being with us, Michael Scharf of Case Western Reserve University in Ohio, one of the five international legal experts who has been training Iraqi judges. One last question, Michael Scharf. There was a meeting in October in secret in London that you were a part of. What was that meeting?

MICHAEL SCHARF: It wasn’t a secret meeting. It was the first of several training sessions. It was a week long. They brought five experts in. We went through the crimes that are a part of the Iraqi special tribunal’s statute and talked about the definitions and contours of those crimes and the kinds of defenses that could be raised. We talked about procedural issues like plea bargaining and the right of self-representation and the human rights that defendants are going to have to be given. We started a process of bringing these judges up to speed so that when the trials begin, they will have quite a bit of expertise in this very unique area of the law.

AMY GOODMAN: Michael Scharf, thanks for being with us. Also, Abdul Haq Al-Ani was with us, London-based attorney, one of Saddam Hussein’s attorneys, as well as Tariq Aziz, the Iraqi Deputy Prime Minister. He says he still does not know where his clients are.

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