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Scharf: Tribunal could be cornerstone for a new Iraq

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(CNN) -- Michael P. Scharf, a law professor at Case Western Reserve University and the co-founder of the Public International Law and Policy group, has trained some of the judges presiding over the Iraqi Special Tribunal, charged with trying the alleged crimes of former Iraqi President Saddam Hussein.

Scharf, and the organization he oversees, has also provided assistance to the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and The International Criminal Court, earning a nomination for the Nobel Peace Prize this year. In an interview with CNN's Manav Tanneeru, Scharf discussed the Iraqi Special Tribunal, the debate over its legitimacy, and what effects it may have on Iraqi society

CNN: The Iraqi Special Tribunal is different from the tribunals in Rwanda and Kosovo, and others set up in recent years. Could you explain how the tribunal came about?

SCHARF: David Scheffer, when he was the Ambassador at Large for War crimes Issues in the Clinton administration, spent 10 years trying to convince the Security Council to create an ad hoc tribunal to prosecute Saddam Hussein for all sorts of crimes against humanity, and for crimes committed during the first Persian Gulf War.

The French and the Russians were against that. Then, in 2003, when we invaded Iraq without Security Council authorization, the French and the Russians were furious at us, and they let it be known that at the end of the invasion, if we captured Saddam Hussein, they would not authorize an international tribunal. That shouldn't be a surprise because they weren't in favor with it to begin with, but they were really mad afterward. So, that meant that the option of a Security Council-created tribunal was not available.

The other option most people think about is the permanent International Criminal Court, but it has a provision in its statute that says it cannot try any case that occurred before July 1, 2002. It's called the non-retroactivity clause and the reason that's so important is because so many countries that have joined the statute of the ICC -- there are 99 altogether -- have committed crimes in the past, and the only way they would join the ICC was if they had been given a clean bill of health, and a promise that they would never be investigated or prosecuted.

Because so many of Saddam Hussein's [alleged] crimes predated 2002, almost all of them in fact, the ICC is not available as a forum for prosecuting Saddam Hussein, and you can't amend the statute because that provision is the absolute, most important in the entire statute for political reasons.

Then, there is the option of just sending the case to a regular, ordinary court of Iraq, but that would have been like sending him to the wolves. There would be no guarantee of fairness, the people are so angry, it's so political, that it just wasn't seen as a good option. So, what they did is they created what I call an internationalized domestic tribunal.

CNN: Why were the French and the Russians against the tribunal?

SCHARF: People of different countries wanted oil concessions from Iraq, which has the second biggest oil reserves in the world, and then after the 2003 invasion, it was based on, really, animosity about the invasion, and a desire not to be seen as in any way ratifying what they saw as an illegal event by approving an international trial for Saddam Hussein.

CNN: If the trial is not being held under the banner of the United Nations, are there any concerns over the court's legitimacy?

SCHARF: I had some concerns about legitimacy because its statute was originally [established] by the Iraqi transitional government, which had been appointed by Paul Bremer and occupying authorities and that to me didn't sound right. But, on August 11, the democratically-elected Iraqi legislature overwhelmingly cast a statute that [re-established] the Iraqi Special Tribunal statute, and also approved its rules of procedures, and also approved all of the judges that had been selected.

Now, this is a government that has been elected along the procedures that have been endorsed by the United Nations Security Council and has now endorsed, created, blessed, given authority to the Iraqi Special Tribunal and I think that eliminates any issues of legitimacy because it is now a tribunal that has been created by a democratically-elected sovereign state.

CNN: Do you think the trial will have any impact on civil society in Iraq, on the governmental and non-governmental institutions that will, at some point, become legitimate political actors? Will the trial have a galvanizing effect or is it a separate event operating in a sort-of vacuum?

SCHARF: I was at a conference last week about the 60th anniversary of Nuremberg, and a person from Germany spoke there who grew up just after the Nuremberg trials, and he said that, for him, democracy began at Nuremberg, which is really interesting.

I think what will happen in Iraq, assuming there isn't a civil war and things settle down, is that these trials and the due process standards being used will be emulated in the rest of the justice system, making it the fairest justice system in the Middle East, and making it a model for other Middle Eastern countries, and if you have a fair justice system, it helps people believe in democracy. So, this literally could be a cornerstone for the new, rehabilitated democracy in Iraq.

CNN: How confident are you of that? Obviously, you need a constitution before you have those institutions?

SCHARF: I think the constitution is another important cornerstone. I think both of these events, and they are both starting at the same time and it's no coincidence, are the two most important events in the life of this new country. And, I'm not confident about anything in Iraq, so we just have to wait and see, I guess.

CNN: What do you think are the legacies of these tribunals? The International Criminal Court was recently formed to codify what these ad hoc tribunals have worked on, but what do you think these tribunals contribute to international law and international politics?

SCHARF: After Nuremberg, people would say "never again," meaning that they would never let genocide and crimes against humanity ever occur again without the international community doing something about it, and then during the Cold War, well, that didn't happen. Never again become again and again, and we entered into an era of impunity, so that people like Pol Pot in Cambodia, and Idi Amin in Uganda, and Papa Doc and Baby Doc in Haiti, and Pinochet in Chile all got away with it, and nobody lifted a finger, nobody even said that they would try to do something about them, and so that was like a golden age of impunity, where there was no deterrence. You know, Milosevic could say to his people, "Don't worry, no one ever prosecutes," and the same thing with Rwanda.

In the last 10 years, starting with Yugoslavia tribunal, then the Rwanda tribunal, and then the Sierra Leone tribunal, the Cambodia tribunal, the East Timor tribunal, and now the Iraqi Special Tribunal, you've got all these leaders who are now facing justice. It's a new era we're in, it's an era of accountability, and this is a part of that era.

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