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88–244 PDF 2003

S. Hrg. 108–174

PROSECUTING IRAQI WAR CRIMES: A CONSIDERATION OF THE DIFFERENT FORUM OPTIONS

HEARING

BEFORE THE

COMMITTEE ON 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

APRIL 10, 2003

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

DAVID A. KASS, Chief Investigative Counsel 

JOYCE RECHTSCHAFFEN, Minority Staff Director and Chief Counsel 

LAURIE RUBENSTEIN, Minority Chief Counsel 

CYNTHIA GOOEN LESSER, Minority Counsel 

DARLA D. CASSELL, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Specter ................................................................................................. 1

Senator Collins ................................................................................................. 1

Senator Carper ................................................................................................. 14

Senator Lautenberg .......................................................................................... 16

WITNESSES 

THURSDAY, APRIL 10, 2003

Hon. Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, 

U.S. Department of State 3

W. Hays Parks, Special Assistant to the Judge Advocate General of the 

Army for Law of War Matters ............................................................................ 6

Hon. David J. Scheffer, Senior Vice President, U.N. Association of the U.S.A., 

and former U.S. Ambassador-at-Large for War Crimes Issues (1997–2001) .. 19

Professor Ruth Wedgwood, Paul H. Nitze School of Advanced International 

Studies, Johns Hopkins University, U.S. Member of the United Nations 

Human Rights Committee ................................................................................... 21

Tom Malinowski, Washington Advocacy Director, Human Rights Watch .......... 23

ALPHABETICAL LIST OF WITNESSES

Malinowski, Tom: 

Testimony .......................................................................................................... 23

Prepared Statement ......................................................................................... 50

Parks, W. Hays: 

Testimony .......................................................................................................... 6

Prepared Statement ......................................................................................... 30

Prosper, Hon. Pierre-Richard: 

Testimony .......................................................................................................... 3

Prepared Statement ......................................................................................... 27

Scheffer, Hon. David J.: 

Testimony .......................................................................................................... 19

Prepared Statement ......................................................................................... 33

Wedgwood, Professor Ruth: 

Testimony .......................................................................................................... 21

Prepared Statement ......................................................................................... 41

APPENDIX

Responses to Questions for the Record submitted by Senator Lautenberg 

for: 

Hon. Pierre-Richard Prosper ........................................................................... 57

W. Hays Parks .................................................................................................. 62

Hon. David J. Scheffer ..................................................................................... 64

Professor Ruth Wedgwood ............................................................................... 68

Mr. Tom Malinowski ........................................................................................ 71

(1)

PROSECUTING IRAQI WAR CRIMES: A CONSIDERATION OF THE DIFFERENT FORUM 

OPTIONS 

THURSDAY, APRIL 10, 2003

U.S. SENATE, 

COMMITTEE ON GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 11:06 a.m., in room 

340, Dirksen Senate Office Building, Hon. Arlen Specter presiding. 

Present: Senators Specter, Collins, Carper, Lautenberg, and 

Pryor. 

OPENING STATEMENT OF SENATOR SPECTER 

Senator SPECTER [presiding.] Good morning. I just came from a 

Judiciary Committee executive session and it feels like evening, let 

alone afternoon. 

The Governmental Affairs Committee will hear testimony on the 

issue of creating a war crimes tribunal for the war in Iraq. I have 

a few comments to make as an opening statement, but before doing 

so, I yield to the distinguished Chairman of the Full Committee 

with my appreciation for her scheduling the hearing and agreeing 

to let me chair. Chairman Collins. 

OPENING STATEMENT OF CHAIRMAN COLLINS 

Chairman COLLINS. Thank you very much. I want to begin by saluting Senator Specter for his leadership on this issue, which goes 

back for some time, and for his hard work in putting together this 

hearing. I am very pleased and honored to pass on the gavel to him 

today as we explore this extremely important issue. As Chairman 

of the Veterans Affairs Committee, Senator Specter has consistently fought for the needs of those who have fought for us. Truly, 

no one has done more for our Nation’s veterans than this remarkable Senator. 

As the regime of Saddam Hussein crumbles in Iraq, the subject 

of this hearing on how we can best hold those accountable for war 

crimes in that country takes on increasing significance. The administration apparently has already begun to draw up plans to deal 

with both the historical offenses by the Iraqi regime against its 

own people and its neighbors as well as crimes committed by the 

regime during the current conflict. It is vital that Congress play a 

role in examining these issues, and this hearing is a vital starting 

point in that process. 

2

There can be no doubt that Saddam Hussein’s regime is responsible for many war crimes. The main question before this Committee today is how best those crimes should be prosecuted. There 

are a number of options available, ranging from international tribunals sanctioned by the United Nations to the domestic courts of 

Iraq or perhaps even the United States. Whatever forum is used, 

the result must have legitimacy both for the Iraqi people and for 

the international community. 

The courts must also work effectively. The trials need to take 

place as quickly as possible. The procedures should not endanger 

sensitive intelligence information. And of course, most of all, the results must ensure that justice is achieved. 

I look forward to Senator Specter’s continuing leadership as we 

explore this issue. 

Thank you, Mr. Chairman. 

Senator SPECTER. Thank you very much, Madam Chairman. 

A week ago Saturday, I noted reports of four U.S. soldiers killed 

when an Iraqi soldier dressed in civilian clothes detonated a car 

bomb. And the next day on international television, Deputy Foreign 

Minister Tariq Aziz commented, gloating over the incident, and 

saying that would be the policy of Iraq and that, in fact, they were 

recruiting 4,000 volunteers from the region to come in and act as 

suicide bombers, in contravention of the Hague and Geneva conventions. And those suicide bombings have been repeated. The following Thursday, April 3, the Iraqi Government boasted about a 

woman, again disguised, detonating a bomb and killing three 

American soldiers. 

After the Saturday incident where four American soldiers were 

killed and the Sunday comments by Tariq Aziz, my staff prepared 

on Monday a resolution and, as our practice is to travel from our 

States on Monday, I came in late in the afternoon and went to the 

Senate floor and presented it, to do my best to put Tariq Aziz on 

notice, and the Iraqi vice president who had also sanctioned these 

practices, that when the war was over, it would not be over as far 

as they were concerned, that they would be tried as war criminals. 

Now, I do not know if anybody in Iraq pays any attention to 

what happens on the Senate floor when a Senator speaks. I know 

they pay attention when we pass a resolution authorizing the use 

of force, as we did on October 11—2 a.m., actually, on October 12. 

But to the extent that my voice could be heard, I wanted to do that. 

And since that time, a resolution has been prepared, a joint resolution, which Congressman Weldon has introduced in the House—

the original resolution had more than 100 co-sponsors in the 

House—and Senator Biden and I have introduced the resolution in 

the Senate. And the Foreign Relations Committee has consented to 

a vote on it this afternoon. But we ought to do our best to tell the 

Iraqi war criminals what is going to happen to them. 

And it is a very complicated issue as to the legalities involved. 

There is no doubt that there have been war crimes on subterfuge, 

war crimes using mosques, war crimes using schools, and using civilians. And how we approach it, whether it is a military court or 

court martial or a tribunal established by the United States, Great 

Britain, and the coalition nations, or whether other U.N. particiVerDate 0ct 09 2002 08:18 Nov 05, 2003 Jkt 088244 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\88244.TXT SAFFAIRS PsN: PHOGAN
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1The prepared statement of Ambassador Prosper appears in the Appendix on page 27. 

pants ought to be involved are all matters we are going to have to 

iron out. 

But I think it is a matter of enormous importance that we proceed and that we be heard on the matter. And that is why I am 

so appreciative to Chairman Collins for scheduling this hearing. 

We have some very distinguished experts today, and without further comment, we will proceed to our distinguished witnesses. 

Our first witness is the Hon. Pierre-Richard Prosper, ambassador-at-large for war crimes. Prior to serving in this position, Ambassador Prosper served as special counsel and policy advisor to 

the previous ambassador-at-large for war crimes, and from 1996 to 

1998, he served as war crimes lead prosecutor for the United Nations International Criminal Tribunal of Rwanda, where a conviction was obtained for the head of state of Rwanda, who is now serving a life sentence. Not too many people know that. You practically 

have to travel to Rwanda to find that out. It has gotten very little 

publicity. But it is a deterrent. White collar crime convictions are 

deterrents. I have seen a lot of that. Imprisoning heads of state is 

a deterrent, too. It does not happen very often. 

The Ambassador graduated from Boston College and has a law 

degree from Pepperdine. Thank you for joining us, Mr. Ambassador. The floor is yours. 

TESTIMONY OF HON. PIERRE-RICHARD PROSPER,1 AMBASSADOR-AT-LARGE FOR WAR CRIMES ISSUES, U.S. DEPARTMENT OF STATE 

Ambassador PROSPER. Thank you, Madam Chairman and Mr. 

Senator, for giving me this opportunity to speak before you on such 

an important——

Senator SPECTER. Let me note the clock, which will reset at 5 

minutes. That has been the practice of this Committee. And I have 

been saying recently that I attended a memorial service for Ambassador Annenberg a few months ago, and the time limit was 3 minutes for former President Ford and Secretary of State Powell and 

Arnold Specter and everybody else. So I just want you to know that 

5 minutes is a very generous allocation of time. 

Ambassador PROSPER. All right, I will do my best to stay within 

the confines and also, noting your remark, I would like to introduce 

my written text into the record. 

Senator SPECTER. Without objection, it will be made a part of the 

record. 

Ambassador PROSPER. Thank you. 

Clearly, this is an important issue, of seeking accountability for 

the abuses that have occurred in Iraq. It is important and vital for 

reconstruction, and essential for reconciliation. If there is to be 

lasting peace and democracy, there must be justice. 

As Senator Specter noted, for the past 3 weeks, we have received 

disturbing information indicating that the regime has engaged in 

a consistent and systematic pattern of war crimes and atrocities. 

From the egregious conduct we have seen, it is clear that Saddam 

Hussein and his forces have a complete disregard for the law and 

human life. The Iraqi regime has intentionally removed the line of 

4

distinction between combatants and civilians, often with the specific intent to cause civilian casualties. 

As we know, the list of abuses that we have received reports on 

is long. The regime has reportedly killed civilians by opening mortar fire and machine gun fire upon them as they have tried to flee; 

used civilians as human shields, resulting in death; seized children 

from their homes and told families that males must fight for the 

regime or they will face execution; summarily executed military deserters and former officers; positioned significant amounts of military weaponry in buildings such as hospitals, schools, mosques, 

and historical landmarks. Ambulances have also been used to 

transport death squads. 

There are also credible reports that Iraqi forces may have executed coalition soldiers following their surrender or capture and 

committed other crimes which my colleague Hays Parks, a leading 

expert on these issues, will discuss. 

The pattern of atrocities is not new. Saddam Hussein and his regime have inflicted brutality since taking power in 1979. They institutionalized violence, torture, rape, murder, and mass extermination. We know that over the 20-year period they have gassed the 

Kurds, causing the deaths of between 50,000 and 100,000 people; 

tortured Kuwaitis during their oppression of Kuwait in 1991, displacing millions of people, killing thousands, hundreds missing; 

brutally suppressed the Shi’ia Muslim insurgencies in Southern 

Iraq, attacks that killed more than 30,000 to 60,000 persons; and 

of course, there have been a series of violations within Iraq’s war 

with Iran. 

Senators we believe the end of brutality is near. We have been 

cataloging and documenting all this information on war crimes and 

atrocities both past and present. Our troops have the mission to secure and preserve evidence that they come across. It is our hope 

to find the leaders that are responsible for this, and ensure justice. 

The United States has been a leader, as you know, in pursuing 

justice for serious violations of the laws of war and of atrocities, 

from Nuremberg to the current ad hoc tribunals in the former 

Yugoslavia, Rwanda, and Sierra Leone. Iraq will be no different. 

There will be accountability, and there must be credible accountability for these abuses. 

So the question presented today is, what are our options and 

what forms are available? For crimes committed against U.S. personnel, including our American prisoners of war, we, the United 

States will prosecute. Mr. Parks can also discuss this in greater 

detail. For the regime’s crimes committed against other countries’ 

nationals, both present and in the past, the government of those 

nationals may also have the sovereign interest in seeking justice. 

For the regime’s crimes committed against Iraqi citizens, we believe that those responsible should be held accountable before an 

Iraqi-led process, possibly ranging from tribunals to truth and reconciliation commissions. The international community has an obligation to help the Iraqi people move towards justice, the rule of 

law, democracy, and legitimate judicial institutions. The United 

States intends to help ensure that a strong and credible process is 

created. 

5

While at this moment it is difficult to assess the degree of international involvement needed—from minimal to substantial, from financial to legal experts and judges—all States, particularly those 

from the region, should be prepared to contribute. We have been 

in continued contact with the Iraqi Jurists Association, a group of 

experienced judges and attorneys who share these views, to devise 

a plan. Once the situation in Baghdad is stabilized, we will also 

work with the internal Iraqi jurists to identify credible practitioners, those untainted by the past, who can administer justice impartially. Together we will find the right formula for achieving accountability. 

Senators we believe that the international practice should be to 

support sovereign States seeking justice domestically when it is 

feasible and credible. International tribunals are not and should 

not be a court of first redress, but of last resort. It is our policy to 

encourage and to help States pursue credible justice rather than 

abdicating their responsibility or having it taken away. Because 

justice and the administration of justice are the cornerstone of any 

democracy, pursuing accountability for war crimes, while respecting the rule of law by a sovereign state, must be encouraged at all 

times. 

I am aware that there are some who believe that the Iraqis are 

not up to the challenge. I have personally met with the group of 

Iraqi jurists and lawyers. I am convinced that there are qualified 

Iraqi jurists, both within and outside of Iraq, who are ready and 

willing to accept the mandate of justice. They have a thirst for this 

pursuit which should not be denied. It is our goal to help create 

the conditions that will allow them to make the essential decisions. 

As President Bush and Prime Minister Blair said in a joint statement on April 8, we will create an environment where the Iraqis 

can determine their own fate, democratically and peacefully. 

Senators, Iraqis should lead this effort to judge those who have 

committed crimes, the greatest crimes, against their people. They 

are a proud people. In the last couple of days, we have seen the 

beginning of the rebirth of a nation. Voices that were once silent 

by an oppressive regime are now beginning to speak. The Iraqi people who have been crying for justice and reconciliation will now 

have the hope of being heard. The seeds of reform will be planted, 

and the rule of law will emerge. The United States and the international community have the obligation to support Iraqi people in 

their quest to end impunity in their country. 

Thank you. 

Senator SPECTER. I thank you very much, Ambassador Prosper. 

We now turn to W. Hays Parks, special assistant to the Judge 

Advocate General of the Army for the Law of War Matters. In that 

capacity, he advises the Army staff on matters ranging from special 

operations to directed-energy warfare. He had the primary responsibility for the investigation of Iraqi war crimes during Iraq’s 1990 

to 1991 occupation of Kuwait and served as the U.S. representative 

for the law of war negotiations in New York, Geneva, the Hague, 

and Vienna. Mr. Parks occupied the Charles H. Stockton chair of 

international law at the Naval War College in 1984 and 1985. 

Welcome, Mr. Parks, and we look forward to your testimony. 

6

1The prepared statement of Mr. Parks appears in the Appendix on page 30. 

TESTIMONY OF W. HAYS PARKS,1 SPECIAL ASSISTANT TO THE 

JUDGE ADVOCATE GENERAL OF THE ARMY FOR LAW OF 

WAR MATTERS 

Mr. PARKS. Thank you, sir. Madam Chairman, Senator Specter, 

as Ambassador Prosper did to shorten things, I would like to introduce my written text. 

Senator SPECTER. It will be made a part of the record in the full. 

Mr. PARKS. And I will give a summarized version of that, hitting 

the key points that the Chairman has asked that we look at today. 

Senator SPECTER. Thank you. 

Mr. PARKS. Thank you again for inviting me to testify on this 

very important subject. I have been asked to comment on the 1949 

Geneva Conventions for the Protection of War Victims, Department 

of Defense policies with respect to the law of war in the current 

conflict with Iraq and Iraqi violations of the law of war. 

A very short summary on the 1949 Geneva Conventions: These 

were negotiated following World War II. There are four Geneva 

Conventions—one for military wounded and sick; one for military 

wounded, sick, and shipwrecked; one for prisoners of war; and one 

for civilians in enemy hands. Of the 194 Nations in the world, 190 

are States Parties, including the United States and Iraq. There are 

in fact more governments States Parties to these conventions than 

Member States of the United Nations, making them some of the 

most widely accepted treaties. 

The protections apply when the members of the armed forces or 

civilians of one belligerent nation fall into the hands of an enemy 

belligerent. In the case of prisoners of war, this can happen 

through capture or surrender to enemy military forces. 

The United States and coalition forces conduct all operations in 

compliance with the law of war. That is a long-standing DOD policy. No nation devotes more resources to training and compliance 

with the laws of war than the United States. U.S. and coalition 

forces have planned for the protection and proper treatment of 

Iraqi prisoners of war under each of the Geneva Conventions. 

These plans are integrated into current opinions. 

Before describing our policies, I should note that in Operation 

Desert Storm in 1991, the U.S. and coalition partners detained 

86,743 Iraqi prisoners of war. These Iraqi prisoners of war were 

given all of the protections required by the Geneva Conventions. 

Our aims and acts are precisely the same in the current conflict. 

We are providing, and will continue to provide, captured Iraqi combatants with the protections of the Geneva Conventions and other 

pertinent parts of the law of war. In particular, representatives 

from the International Committee of the Red Cross have been provided access to Iraqi prisoners of war in coalition hands. 

Unfortunately, the Iraqi regime is not complying with the law of 

war, as Senator Specter identified in opening remarks. I offer examples in my written statement, and Ambassador Prosper has provided a detailed list. 

I should note that in Desert Storm in 1991, the Iraqis mistreated 

captured U.S. and coalition forces in numerous respects, including 

physical abuse and torture, forced propaganda statements, food 

7

deprivation, denial of ICRC access until the day of repatriation, 

and much more. The Iraqis similarly mistreated Iranian POWs 

during the 8-year Iran-Iraq war in the 1980’s. The Iraqi regime has 

thus displayed a pattern of systematic disregard for the laws of 

war. Based upon initial reports, including those in the media, it appears Iraq has once again committed violations of the law of war 

throughout this conflict. 

The position of the United States, as identified again, by Ambassador Prosper, is to do everything in its power to bring to justice 

anyone who, by action or inaction, is responsible for violations of 

the laws of war. A war crimes investigation by the Secretary of the 

Army to record Iraqi war crimes during the 1990–1991 Persian 

Gulf War resulted in a detailed report. Steps have been taken to 

begin a similar investigation and information collection effort. 

Responding to the question raised by the Chairman in the Chairman’s opening remarks, that is, how we best can hold these accountable, let me at least list for you the statutory authority for 

war crimes trials by the United States. I should point out, to begin 

with, there is a treaty obligation to prosecute war crimes to ensure 

respect for the law of war. This is in Article 1, common to the four 

1949 Geneva Conventions, which obligates each government to respect and ensure respect for the present convention in all circumstances. 

The implementation within the United States is statutory—general courts martial in Article 18 of the Uniform Code of Military 

Justice, which is 10 U.S.C. Section 818; by military commissions, 

in 10 U.S.C. Section 821; or in Federal District Court, which is contained in 18 U.S.C. 2441. 

That concludes my remarks, sir. 

Senator SPECTER. Thank you very much, Mr. Parks. You are the 

first witness in my attendance at many hearings who ended exactly 

on time. 

Ambassador Prosper, you commented about finding the leaders. 

The question which is being asked again and again relates to Saddam Hussein. Do you have any information as to his whereabouts 

or what efforts should be undertaken to try to find him? 

Ambassador PROSPER. Well, at this time we do not have information as to his whereabouts or the status of Saddam Hussein. But 

as Secretary Rumsfeld stated yesterday, there are efforts under 

way either to capture or account for Saddam Hussein and the regime leadership that has been responsible for all these abuses. It 

will be a matter of time for us to make these determinations. 

Senator SPECTER. When you say we will make an effort to find 

the leaders, do you have any idea as to how many leaders we will 

be seeking; that is to say, how many leaders we have evidence of 

violation of war crimes to find and prosecute? 

Ambassador PROSPER. We have over the past several months and 

even longer, taken great care in looking at the history of this regime and identifying those who bear responsibility for, particularly, 

past abuses. And with the current abuses, we are, as we mentioned 

earlier, undertaking a process of documenting and analyzing the 

information. As of now, we have been looking at the very top leadership, that we have the most interest in. 

8

Senator SPECTER. When you say top leadership, whom do you 

mean by that? 

Ambassador PROSPER. Well, from Saddam Hussein, his sons, persons such as Chemical Ali. There are other names which I can provide to you later. But the list that we have compiled is, at a minimum, nine. And then we begin to look down the list at other individuals to see who is in that upper echelon of responsibility. 

But we have not limited our review to those top-tier folks. As 

part of our process, we have looked beyond that to determine the 

roles that others may have played in committing atrocities or violations, and we are in the process of making assessments regarding 

those individuals. 

Senator SPECTER. Ambassador Prosper, when you say that the 

international tribunals should not be the first resort but the last 

resort, how would you contrast that with our policy and international policy in denying the requests of Serbia, the former Yugoslavia, to try war criminals there, but instead the insistence of the 

officials at the Hague to bring the war criminals arising from the 

atrocities in the former Yugoslavia, to bring them to the Hague? 

Ambassador PROSPER. Well, Senator, there is an important distinction that can be drawn here. With the former Yugoslavia, we 

had a conflict which broke a country apart and created several different borders. The United Nations decided to act under Chapter 

7 as a measure to bring peace and stability in the region, to literally impose a tribunal in order to bring the perpetrators to justice. It was something that was needed at the time. 

But what we have done throughout time with the former Yugoslavia is develop a policy where there is a shared responsibility for 

the pursuit of justice, where the tribunal in the former Yugoslavia 

will pursue the top-tier folks responsible for the violations, either 

from Serbia, Bosnia, or Croatia, while now the States in the region 

have the responsibility for adjudicating the cases, the mid-level 

perpetrators. We are beginning to see in Serbia efforts to hold war 

crimes prosecutions. We are also seeing an effort under way in Bosnia, where the High Representative is establishing a localized process, and Croatia is doing the same. 

So the policy and the practice is moving toward sovereign responsibility. 

Senator SPECTER. But when it came to the key defendants, 

former President Milosevich and others, the prosecutor at the 

Hague insisted on jurisdiction there, and over the objections of the 

Serbian officials. 

Ambassador PROSPER. Well, at that time, for many of the cases 

in the former Yugoslavia, there was no showing that the local society would in fact do some of these war crimes prosecutions. And 

with Milosevich, the crimes for which he is indicted crossed the 

borders of Serbia, Montenegro, and deal with Croatia and Bosnia, 

where the infrastructure was not in place to deal with some of 

these crimes. Because of the cross-border nature of the crimes, it 

was appropriate for Milosevich to go to the Hague. 

Senator SPECTER. Well, when you talk about trying offenses 

against—as you articulated, regime crimes against the Iraqis, when 

you talk about trying that with Iraqi tribunals, are there Iraqi triVerDate 0ct 09 2002 08:18 Nov 05, 2003 Jkt 088244 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\88244.TXT SAFFAIRS PsN: PHOGAN
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bunals in existence at the present time which can try those defendants? 

Ambassador PROSPER. The short answer is no, and they will have 

to be created. What we are finding is that there is a core group of 

personnel who want to play a critical role in bringing justice. 

Senator SPECTER. And who are they? Are they former judges? 

Ambassador PROSPER. Former judges——

Senator SPECTER. How do you constitute the appointment of 

judges in Iraq? Who is going to make the appointment? When you 

have a constitution—in the United States, we have a set procedure. 

We have a government in place. We have a President. Under Article 2, the President’s executive authority is to appoint judges. 

Under Article 1, the Senate has the confirmation power. How do 

you structure that, stated specifically, who is going to appoint the 

judges? 

Ambassador PROSPER. Well, these are things that will be determined in a post-conflict setting. I think once we get into Baghdad 

and are able to actually stabilize the situation, begin to work with 

the internal and external personalities to begin to fill the various 

ministries and the various positions within government, these 

questions will——

Senator SPECTER. How do you do that? How do you fill the ministries? You have to have someone appoint a minister. Who is going 

to make the appointment? We have a very delicate situation here, 

that the United States should not be seen as running the show, as 

dominating the show. What do we have in mind for provisional government or the setting up of judges? Mr. Parks, would you care to 

try that one? 

Mr. PARKS. I am happy for Ambassador Prosper to be answering 

that, Senator. 

Senator SPECTER. Ambassador Prosper, are you happy to answer 

the question? 

Ambassador PROSPER. Yes, the basic plan that we have is, first, 

for General Garner to go in and begin to gain control of some of 

the various institutions. From there, the idea is to——

Senator SPECTER. Who is going to do that? 

Ambassador PROSPER. General Garner. Then from there, the 

idea——

Senator SPECTER. What is General Garner’s authority? 

Ambassador PROSPER. Well, he is responsible for the reconstruction effort, if you will. 

Senator SPECTER. General Garner is responsible for the reconstruction effort? 

Ambassador PROSPER. Yes. He is in Kuwait as we speak. 

Senator SPECTER. Where did General Garner get that authority? 

Ambassador PROSPER. It comes from the President. 

Senator SPECTER. From the President. And does General Garner 

have the authority to appoint ministers? 

Ambassador PROSPER. Well, the initial plan will be for him to 

come in to begin to gain control of the various ministries. From 

there, we need to work with the Iraqi people to help develop and 

reshape the government of their choosing. It will really be the Iraqi 

people who will have the lead. We will be there in the support aspect, if you will, to help them shape the various facilities. And 

10

when we move into the area of a tribunal, this will be something 

that will be looked at. It may be something that is specialized and 

is not part of the overall judicial reform. It may take the enactment 

of additional authorities or legislation to do this. 

Senator SPECTER. What body of Iraqi law exists to use as the 

mechanism for prosecuting war criminals? Is there an Iraqi criminal code? 

Ambassador PROSPER. There is an Iraqi criminal code. 

Senator SPECTER. Does the Iraqi criminal code provide for the 

death penalty? 

Ambassador PROSPER. Yes. 

Senator SPECTER. So Saddam Hussein could be tried in an Iraqi 

criminal court and could receive under Iraqi law the death penalty? 

Ambassador PROSPER. That is correct. 

Senator SPECTER. And what are the crimes for which the death 

penalty can be imposed under Iraqi law? 

Ambassador PROSPER. Well, I do not have, obviously, the entire 

code before me, but I think it calls for capital punishment, obviously, for murder and acts of this nature. But what we are looking 

at within the—are working with the Iraqi jurists on, we look at the 

Iraqi code, look to see if additional authorities based on international law are needed, such as the various war crimes, crimes 

against humanity, and so forth. And from there, a process will be 

developed working with both the internal and external Iraqi personalities in order to bring the regime to account for the abuses of 

the past and present. 

Senator SPECTER. When was the Iraqi criminal code promulgated 

and in what manner? 

Ambassador PROSPER. I do not have that information before me, 

but we can provide it to you and answer a question for the record. 

Senator SPECTER. Mr. Parks, what is your view as to how to try 

others under a war crimes scenario, if you exclude regime crimes 

against Iraqis, what would your suggestion be as to regime crimes 

against U.S. soldiers? 

Mr. PARKS. Senator, like the Senator, I am a former prosecutor. 

I would ask some very basic questions. One of them, first, is who 

was the victim of the crime? Second, who committed the crime? 

And obviously, if the crime was committed against an American 

soldier, sailor, airman, or Marine, that, I believe, the United States 

could use its jurisdiction under one of the three statutory courts 

that I identified. If the individual is a member of——

Senator SPECTER. Could you repeat that? We could exercise jurisdiction where? 

Mr. PARKS. Within any one of the three statutory courts that we 

have, before a military court martial, general court martial——

Senator SPECTER. Court martial. 

Mr. PARKS. Article 18 provides for trial of war crimes before general courts martial. Or before a military commission. Or before a 

Federal District Court. And I do not list those necessarily in any 

order or priority. 

The second thing, the question I would have as prosecutor would 

be what was the status of the individual who committed the crime? 

If he was a member of the Iraqi military, that might have some 

sway on which court he would go to. If he was a member of the 

11

Fedayeen Saddam, then he might be subject to a different court. 

If he was a foreign national fighting for Iraq, then he might be considered to be tried by one of those other courts. All of them could 

be tried for war crimes or for murder. But we would have jurisdiction within our own courts for those individuals. 

Obviously, if the victim was, let us say, a British soldier, and the 

individual is in our custody, then the case might be that the United 

Kingdom would ask for the custody of that individual so they could 

try them. 

Senator SPECTER. What has happened with the President’s directives as to potential prosecutions against al Qaeda? 

Mr. PARKS. Those are proceeding, Senator. I certainly put them 

in a slightly different category because of the type of fighting that 

was going on within Afghanistan. 

Senator SPECTER. Well, the President issued an order shortly 

after September 11 which established procedures, and that was 

modified. For example, the procedure to have the death penalty imposed on a two-thirds vote was changed to be unanimous. And 

some of the rules as to evidence were revised. But has anyone been 

brought to trial under those Presidential directives? 

Mr. PARKS. Not as yet. 

Senator SPECTER. There is consideration in the wings as to perhaps trying Zacharias Massoui in that court if the proceedings in 

the Federal criminal courts do not work out. It is a very touchy 

subject. We have an indictment against Zacharias Massoui, and the 

judge hands down some orders that the Department of Justice does 

not like and takes an appeal to, and you have the possibility of removing the case from the court and going to a military tribunal or 

a military commission. Would you think that can be done? 

Mr. PARKS. I suspect it could be. Again, these are the types of 

things that I think you would almost draw columns as to the 

pluses and minuses of particular fora. But the three fora are available. And looking, again, at the offense, where the person is, if the 

person is an Iraqi soldier in a prisoner of war camp, I would guess 

that the chance of using a Federal District Court would be very unlikely, that the military tribunals of either general court martial or 

military commission would likely be the more preferred alternatives. 

Senator SPECTER. Do you think a U.S. military commission 

would have the same credibility worldwide as an international tribunal? 

Mr. PARKS. I am sure that there would be people who would find 

fault with either an international tribunal or a military commission. I think the charge of victor’s justice might come up. However, 

I think the thing that we would have to point out is that we do 

try our own personnel for the same crimes if they are committed. 

We tried and convicted and executed over a hundred U.S. servicemen in Europe alone during World War II. I can speak from personal experience that we prosecuted soldiers and Marines in Vietnam for crimes that could have been characterized as war crimes. 

We prosecuted a member of the 82nd Airborne Division for murder 

and rape in Kosovo. 

Senator SPECTER. Our own troops? 

Mr. PARKS. Yes, sir. 

12

Senator SPECTER. There is something different, though, from 

prosecuting our own troops—U.S. jurisdiction over U.S. personnel 

contrasted with a military commission trying Iraqis, where there is 

an overhang of questioning, especially in the Arab world, about the 

fairness. I think our courts are exemplary as you compare our 

courts with the judicial systems around the world; our constitutional protections are hallmarks—having had some significant experience in the prosecution of criminal cases. But the perception of 

others is a very weighty consideration. And when I have proposed 

and others have proposed an international tribunal, it is with an 

eye to giving a sense of multilateralism so that the United States 

does not portray itself as the dominant force. 

There is no doubt that the United States and Great Britain and 

the coalition forces are entitled to the credit—not ‘‘great’’ credit, 

but all the credit. And to have the French come in and say that 

they do not want to debate the subject, it goes without saying—as 

the French foreign minister said last weekend, is surprising. You 

hear all over the world respect for the United Nations. The United 

Nations is going to have a tough time recovering from what has 

happened on the war in Iraq. 

But to the extent that there can be multilateralism—and that 

does not necessarily include the French or the Germans. It could 

include the British and the Australians and the coalition forces 

and, subject to the decision of the coalition forces, it could be broadened. And those are decisions that will have to be made in due 

course. 

But I just express those views as you articulate the three kinds 

of courts which could try these cases. And we are equipped; we 

have institutions in place. The Iraqis do not, I am aware; but we 

do. 

What do you think, Ambassador Prosper? You have had a lot of 

experience in the international field. Do you agree that there would 

be a better international tone if there was an international tribunal 

to try Iraqi war criminals who perpetrate acts against the United 

States? Put aside your categories. You articulated regime crimes 

committed against Iraqis. Suppose we leave those to the Iraqis. I 

have doubts about setting that up, but put those aside. And now 

you have regime crimes against U.S. soldiers. Would there be a 

substantial advantage in having an international tribunal handle 

those matters in terms of response by others in the world, especially the Arabs, if there was a multilateral tribunal which goes beyond the United States, picks up Great Britain, Australia, the coalition forces? 

Ambassador PROSPER. Well, it is my view that the practice has 

become, and it is accepted, that a state who was a victim, falls victim to war crimes or atrocities, that has the capacity and the ability to address these cases themselves, it has become accepted that 

these States have the sovereign right and ability to address these 

cases themselves. I mean, even if you look at, for example, the permanent International Criminal Court, the supporters of that recognize that States have the right to at least begin prosecutions themselves. 

13

Now, we have other problems, other issues with that court. But 

the point I am making, it is recognized that we can do this ourselves. It will be accepted. 

One quick point on the Iraqi process. What we are saying is that 

it needs to be an Iraqi-led process, where there is ownership. It 

does not rule out the possibility of external participation. This is 

something that will have to be worked out with the——

Senator SPECTER. Now you are talking about regime crimes committed against Iraqis. 

Ambassador PROSPER. Correct. 

Senator SPECTER. Yes, but come back to regime crimes committed against U.S. or British or Australian, etc., soldiers. Do you 

not think there would be a better perception internationally if 

there was a multilateral jurisdiction as opposed to picking a U.S. 

jurisdiction, a court martial or, say, a military commission? 

Ambassador PROSPER. Well, my answer is ‘‘not necessarily.’’ 

Senator SPECTER. Why not? 

Ambassador PROSPER. Well, the reason being is we would have 

to look at the extent of the crimes. Right now, most of the crimes 

that we have seen have—obviously there have been crimes against 

U.S. personnel, we have heard of possible crimes against the U.K. 

British personnel. They may be to the extent where we each have 

the ability to do these cases ourselves. It is not a situation where 

the crimes were so indistinguishable that we have to come together 

to form some sort of a coalition for a tribunal process. 

So I think you can distinguish the crimes. It is recognized that 

States have this right and ability to do this, and we and U.K., for 

example, have credible judicial systems that can address this. So 

I do not think that by our prosecuting crimes committed against 

our own people, that there will be an international backlash for 

those actions. 

Mr. PARKS. Senator, may I offer a few comments on that? 

Senator SPECTER. Of course. 

Mr. PARKS. And again, this is weighing the pluses and minuses, 

which we all have to do. Certainly, I think one of the pluses that 

the Senator has mentioned is the public or international perception. There are some minuses or downsides, I think, that we might 

want to consider. 

The historical precedent, the Nuremberg International Military 

Tribunal, tried only the major leaders, where there was no geographic specificity for the offenses. On the other hand, each of the 

Allies—Australia, New Zealand, United States, United Kingdom, 

China—all tried individual military commission cases against individuals accused for crimes where there was a specific victim and 

a specific locality. So there is a historical precedent. And certainly, 

within the law, the primary responsibility for trial of war crimes 

belongs to the individual government. We have generally turned to 

an international tribunal where that has not been possible. 

One other downside to this is I can anticipate the folks who 

might want to be on an international tribunal with those. Many of 

them do not have the death penalty. And that would be something 

that I suspect they would want taken off the table very rapidly. So 

I think that is another factor that we might wish to consider when 

we are weighing what is best in each case. 

14

I think we may end up with multiple tribunals and jurisdictions, 

depending again on the crime, the victim, and what we are looking 

at. 

Senator SPECTER. When you talk about the death penalty, that 

is your best argument, in my opinion, Mr. Parks. There is a lot of 

controversy about the death penalty. My experience has been, in a 

city like Philadelphia, when I was D.A., 500 homicides a year. And 

the death penalty was reserved for the most atrocious cases. And 

I would not permit in the system to ask for the death penalty without my personal review. But there were a few cases each year 

which called for it. If you have a prisoner who is serving a life sentence kill a guard, what does an additional life sentence mean? Or 

some people with extraordinary callous conduct—contract killers, 

or killing witnesses to avoid prosecution or avoid conviction. There 

were some cases which called for—and there are different values 

in different cultures, but I think that is a value which we would 

want to preserve. And that would be well worth considering, although I believe there would be enormous value in trying Saddam 

Hussein as a war criminal and have him sit in jail for the rest of 

his life. That would be a constant reminder, which I think would 

have enormous therapeutic value. We will have to weigh those very 

carefully. 

Well, thank you very much for coming in, gentlemen. We appreciate your background, your experience. And we are going to be 

wrestling with this. Congress has authority under Article 1 to define war crimes and set up tribunals. It is a congressional authority. 

One final question, Mr. Parks, as to the jurisdiction of Federal 

District Courts to try these cases. Did those courts have jurisdiction before the Terrorist Prosecution Act of 1986? 

Mr. PARKS. No, sir. That was enacted, I believe, around 1995 or 

1996. 

Senator SPECTER. Senator Carper, your witnesses. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thanks, Mr. Chairman. To our witnesses, we 

welcome you and I thank you. As most of my colleagues, I have a 

number of hearings going on this morning. I apologize for missing 

your earlier presentations. 

I have, really, a more general, broader question for you and then 

one specific question, if I may. To be honest, I have not read your 

testimony, and I may not read your testimony, although someone 

on my staff will. 

If you could just crystallize and summarize, maybe within a 

minute or two apiece, what you would have us take away from this 

hearing, what you think would be most important for us to be 

mindful of and knowledgeable about. What would that be? 

Ambassador PROSPER. Thank you, Senator. I will quickly begin. 

Regarding the options for prosecution, our policy is for crimes committed against American service members, the United States will 

prosecute, and Mr. Parks can give you an idea of the various options within there. For the crimes of the regime against third countries, they have an opportunity to seek justice. For the crimes of 

the regime against its own people, we believe that it should be an 

15

Iraqi-led process with international support. The degree of the support is an open question right now. It could be minimal, substantial; it could be financial; and it could be legal experts sitting sideby-side. We are going to work with the Iraqis. Our goal is to have 

them have ownership. Because with ownership, it begins to plant 

the seeds of the rule of law, and they accept that responsibility that 

is necessary for any grown democracy. 

Senator CARPER. Thank you. 

Mr. PARKS. Senator, the United States has three statutory authorities, three different courts we could use. The Uniform Code of 

Military Justice, 10 U.S.C. Section 818, which is Article 18, provides that we can try war crimes before a general courts martial. 

It has an advantage to the extent that Article 102 of the Geneva 

Prisoner of War Convention requires that we try prisoners of war 

by the same standards and the same courts as we would try our 

own persons. So we provide the same standards within the general 

courts martial for either our own persons we charge and try as we 

would for an enemy prisoner of war. Of course, we may have some 

people not entitled to prisoner of war status, such as members of 

Fedayeen Saddam. 

The second option we have is military commissions under 10 

U.S.C. Section 821. And the third, that we were just discussing, is 

before the U.S. Federal District Court, which is contained in 18 

U.S.C. 2441. 

My basic response, sort of a takeaway, is that different cases 

may have different requirements and different results, or needs for 

different results, different courts. So we would have to examine 

these on an individual basis. 

Senator CARPER. OK. Could either or both of you talk with us a 

little bit today about the status of negotiations that might be occurring between the U.S. and Britian on the issue of war crimes, how 

to prosecute, and where? 

Ambassador PROSPER. Well, we have been speaking with the 

British on this issue. It is an issue that we began discussions on 

quite some time ago because we both recognized that there is a 

need for accountability. They are aware of our policy. They have 

not displayed any discomfort with our policy. And in fact, we are 

working together to be sure to catalog and document any war 

crimes that have been committed during this conflict as well as in 

the past. And I believe that they, too, agree that we need to create 

a process that gives the ownership of the issue of justice back to 

the Iraqi people. But they recognize that help will be needed and 

we will have to determine what that degree of assistance will be. 

Senator CARPER. Mr. Parks. 

Mr. PARKS. I do not, sir. 

Senator CARPER. All right. Maybe one more, if I could. It seems 

to me that in deciding an appropriate forum for war crime prosecution, we need to look carefully at how post-war Iraq will be governed. If it is a multinational effort, an ad hoc tribunal would probably be most appropriate. But if the U.S. occupies Iraq for an extended period of time, something akin to what we did in Nuremberg might be a more advisable approach. Could either of you talk 

with us about how the ultimate composition of a post-war government in Iraq might affect this decision? 

16

Ambassador PROSPER. Well, I am not sure how much it would affect the decision because the key is to begin to return the government, the institutions back to the Iraqi people. And it will require 

a multilateral effort to come in and support. As both President 

Bush and Prime Minister Blair stated the other day, the United 

Nations will have a vital role in this operation. So what we see 

happening, particularly in the area of justice, is that we want the 

Iraqi people to be in the front, to have that responsibility, but they 

recognize and we recognize that there will be a need for support, 

assistance, participation by members of the international community. So we all need to stand ready to offer our services, whatever 

services are required, to ensure whatever process is ultimately designed is a credible and strong one that will bring the justice that 

we are all seeking here. 

Senator CARPER. Mr. Parks, do you want to add to or take away 

from that? 

Mr. PARKS. No, his comments were fine, sir. 

Senator CARPER. All right. My thanks to both of you. Thanks, 

Mr. Chairman. 

Senator SPECTER. Thank you very much, Senator Carper. Senator Lautenberg. 

OPENING STATEMENT OF SENATOR LAUTENBERG 

Senator LAUTENBERG. Thank you, Mr. Chairman, and I thank 

the witnesses who appeared here. I am sorry I was not in the room 

to listen to all of their testimony. But I would ask consent, Mr. 

Chairman, to put my full written statement into the record. 

Senator SPECTER. Without objection, it will be done.

PREPARED OPENING STATEMENT OF SENATOR LAUTENBERG 

Mr. Chairman, let me start by saying that I was an enlisted man in the Army 

and served in Europe during World War II. I can empathize with the brave young 

men and women in the Armed Forces as they serve their country in an unfamiliar 

place far from home. 

The purpose of this hearing is to consider the nature of the crimes the Iraqi regime has committed against its own people and crimes the regime has committed 

against Coalition forces since the war began. We will also consider the proper venue 

for prosecuting the people responsible for these crimes. 

Saddam Hussein’s regime is guilty of grave and systematic abuses of human 

rights. The regime is responsible for the death or disappearance of 250,000 to 

290,000 Iraqis over the past two decades. 

This horrific total includes at least 100,000 people who were killed during the 

Anfal campaign against the Kurds, which included a chemical weapons attack in 

Halabja that killed 5,000 villagers living there. 

Even as we watch our Armed Forces fight their way to victory in Iraq, we recoil 

in horror from the desperate means of warfare employed by the Iraqi forces. We 

have seen the exploitative treatment of U.S. POWs, including their public humiliation, abuse and display on international television. 

Sgt. James Riley from Pennsauken, New Jersey, is one of these POWs. On behalf 

of his family and the families of the other POWs, I am committed to ensuring that 

the Iraqi forces responsible for such ill treatment will be prosecuted and punished 

to the fullest extent. 

We have seen Iraqi forces deliberately use women and children as shields, disguise themselves as civilians, and go so far as to feign surrender in order to lure 

our troops into dangerous situations. 

Such war crimes, known as ‘‘perfidy’’ by international law experts, not only impede our forces’ tactical strategies; they take cruel advantage of the American military’s concern for protecting innocent life in the midst of combat. 

One more war crime that particularly deserves mention: I am worried about the 

March 29 suicide bombing, when a man disguised as a taxicab driver drove up to 

17

a check point in Najaf and then blew himself up, killing four American soldiers in 

the process, including Michael Curtin of Howell, New Jersey. 

We have learned from the Palestinian example, sadly, that suicide bombings become ‘‘contagious.’’ Iraqi diehards who know their regime is finished may well embrace such a loathsome tactic. 

We need to send a message now that those who organize and employ suicide 

bombers will be severely punished. It might help deter future suicide bombers. 

As horrific as war is, there are international norms and laws governing its conduct. We must hold accountable the people who are responsible for violating those 

norms and laws. 

That must be an early priority for the transitional administration in Iraq and, 

therefore, for the U.S. Government. The Iraqi families victimized by the current regime will have high expectations in this regard. We mustn’t allow such expectations 

to be frustrated. 

I look forward to hearing from our witnesses about what judicial institutions 

should be used or established to hold Iraqi war criminals accountable, and who will 

supervise these institutions. These are important questions we need to address now. 

Thank you, Mr. Chairman.

Senator LAUTENBERG. Thank you. And having served in a war 

many years ago, when I was once young, and knowing the experience of being in a battleground theater, I empathize with the brave 

young men and women serving in the armed forces in unfamiliar 

places far from home. And I am eager to learn more about what 

we intend to do to make sure that those responsible for war crimes 

in Iraq pay a price. We saw what happened in the Balkans, and 

obviously that punishment was meted out in pretty organized fashion; and when we see Mr. Milosevich being tried and, no matter 

what the ruse is, to make sure that the prosecution is vigorous. 

And that has to be an example, certainly, in this case with the history that we know about, in Iraq. We want to make sure that others who have similar intentions in years ahead recognize that ultimately there is a price to be paid. 

So I want to say this. Where do we get the jurisdictional ability 

to decide where and what took place and who deserves punishment 

by groups other than ourselves, other than—or an international 

court? Is there a precedent for that? Because if we go back to World 

War II, the judges were comprised of an international body under 

international structure. How have we changed the structure so that 

we now can decide, and having it jurisdically sound, to decide 

which of these crimes—and I want to see it done, because there is 

reference to an old movie about mad as hell and want to do something about it. We would hope that we can. 

So whatever comments you can give to kind of lead me through 

this. 

Mr. PARKS. Yes, sir. Actually, the processes are very much the 

same as they were during and after World War II. As I mentioned 

earlier, each Nation, as a State Party to the Conventions, has a responsibility to respect and ensure respect to the law of war. And 

as such, it has the right to prosecute those who commit crimes 

against its own personnel. 

Now, in the case of the World War II era, because of the nature 

and breadth of the crimes committed, the major allies—the United 

States, the United Kingdom, and Russia—agreed in a declaration 

issued in Moscow November 1, 1943, that the leading Axis accused, 

Nazi accused would be brought before an international tribunal. So 

there was in essence a negotiation amongst the governments that 

this was too important and perhaps too broad for one government 

18

to try these individuals. And that was the establishment of the 

international military tribunal that met in Nuremberg with multinational distinguished judges. 

There were lesser offenses, those in which senior, particularly 

senior military officers, but also senior industrialists involved with 

the Nazi war machine, were brought before an intermediate-level 

court. It was a three-judge tribunal that was composed of distinguished Federal District judges, individual State Supreme Court 

justices, and individuals. And then there was the third category, 

and those were the traditional military commissions, which was 

much like a court martial, that tried individual German officers 

and others who committed specific crimes against specific American 

soldiers. For example, General Anton Dossler was tried, convicted, 

and executed for ordering the murder of eight American prisoners 

of war that he had captured in Italy during World War II. 

As I noted, the United Kingdom, Australia, New Zealand, China, 

the Netherlands, any number of countries carried out similar military commissions for offenses that had a specific geographic location and were a specific offense. The same type of thing occurred 

with respect to the international military tribunal for the Far East, 

which also had representatives, judges from any number of different nations. This was something that was developed through 

international agreement, negotiation amongst the interested governments to convene those courts. That did not stop the individual 

governments, however, from prosecuting those for individual specific offenses that could be pinpointed down to one person. For example, we tried several different leading Japanese general officers 

for crimes in the Philippines and held the military commissions 

there. 

So it is going to be case-specific. We have the primary jurisdiction, but if we wish to surrender that as part of our sovereign 

rights and negotiate for that to be something convened and held 

through an international tribunal, we have the right to do that. 

Senator LAUTENBERG. Do we have the same proportion of participants as we had at that time? There were lots more countries involved, and I think that the responsibility was almost by consensus, that America was chosen, or accepted, rather, as the lead 

country in that we had the largest—well, I am not sure that we 

had the largest participation, but there was huge representation 

from lots of countries. I am not a lawyer, but I am interested in 

how it is that we are going to make Iraq and its leadership pay 

the price and at the same time maintain a structure of law and 

process that continues to have us providing moral leadership as 

well as military leadership here. 

And Mr. Chairman, one comment if I may. I do not know whether there was an explanation as to what changed the structure of 

the hearing today. Originally I thought there were supposed to 

be—and this is not to diminish the contribution at all by this panel 

and the others on the panel—heard by those who were in combat 

there, veterans. 

Senator SPECTER. Well, we had witnesses lined up, but the Department of Defense objected. And it is our hope we will bring 

them in again. The witnesses were anxious to testify, and they had 

appeared in the public media, and I had a discussion with SecVerDate 0ct 09 2002 08:18 Nov 05, 2003 Jkt 088244 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 C:\DOCS\88244.TXT SAFFAIRS PsN: PHOGAN
19

1The prepared statement of Ambassador Sheffer appears in the Appendix on page 33. 

retary Rumsfeld about it yesterday. It is my view—was, is, and will 

be—that they ought to testify. 

Senator LAUTENBERG. Good for you. 

Senator SPECTER. Because that will really tell the world what 

happened. And we are going to pursue it, Senator Lautenberg. 

There will be another hearing. 

Senator LAUTENBERG. I know that you are diligent about process, 

and understand it fully. Because it is a disappointment not to be 

able to hear directly the views of those who were there. I thank you 

very much. 

Senator SPECTER. We are going to hear from them, Senator Lautenberg. It is a little hard to get hold of Secretary Rumsfeld and 

get him to focus on issues when he is fighting a war. 

Senator LAUTENBERG. I guess. 

Senator SPECTER. And when I talked to him yesterday, I started 

by saying, Do you have time to talk when you have to prosecute 

the war? And we had a short talk, but did not resolve the issue. 

But we will. 

Senator LAUTENBERG. Thank you. 

Senator SPECTER. Thank you very much, Ambassador Prosper 

and Mr. Parks. 

We will now call panel two, the Hon. David Scheffer, Professor 

Ruth Wedgwood, Tom Malinowski. 

Starting with Ambassador Scheffer, senior vice president at the 

United Nations Association. During the second term of the Clinton 

Administration, Ambassador Scheffer was ambassador-at-large for 

war crimes. He led the U.S. delegation at the U.N. talks on the establishment of the international criminal court. He is a graduate 

of Harvard College and the law programs at Oxford and Georgetown universities. 

Thank you very much for coming, Ambassador Scheffer. We have 

had a lot of discussions in the past, and we look forward to your 

testimony. We are under somewhat of a time crunch, unfortunately, because there are other hearings scheduled, but we do want 

to have your views within the time allotted. 

TESTIMONY OF HON. DAVID J. SCHEFFER,1 SENIOR VICE 

PRESIDENT, U.N. ASSOCIATION OF THE U.S.A., AND FORMER 

U.S. AMBASSADOR-AT-LARGE FOR WAR CRIMES ISSUES 

(1997–2001) 

Ambassador SCHEFFER. Thank you very much, Mr. Chairman. 

May I submit my full written statement for the record? 

Senator SPECTER. The statement will be made a part of the 

record. 

Ambassador SCHEFFER. Thank you. I want to recognize the importance of your leadership in submitting S. Res. 101. There is 

good reason for the United States and its coalition partners to prosecute by trial or by tribunal violators of the International Law of 

Armed Conflict in connection with the current conflict in Iraq. That 

requirement is part of the mosaic of courts that will be required in 

the aftermath. I will focus my remarks on the merits of an international criminal tribunal for Iraq. 

20

The Bush Administration’s articulation of its policy on this subject at the Pentagon earlier this week, on April 7, and this morning, remains fairly abstract. But it does provide the context within 

which we now should examine the different forum options. In my 

testimony I recite what I consider to be the understanding of their 

position on April 7. 

The Administration’s position offers considerable flexibility for 

the options that could be examined. It would appear that there is 

a heavy administration presumption in favor of some form of domestic Iraqi courts for past crimes and some combination of U.S. 

courts, military and civilian, for war crimes committed against U.S. 

personnel during the current conflict as well as the Gulf War. 

However, the administration has not ruled out an international 

criminal tribunal for the past quarter-century of the Iraqi regime’s 

atrocity crimes and has not ruled out the possibility that war 

crimes committed against Iraqi citizens in the current conflict could 

be prosecuted before Iraqi courts or even before an international 

tribunal. The briefing on April 7 at the Pentagon appears to reject 

an international tribunal for current abuses against U.S. personnel, but does not necessarily reject one with respect to war 

crimes committed against Iraqi citizens in the past or present. 

For the moment, I would regard the administration’s flexibility 

as helpful in examining the overall issue of justice in Iraq. There 

will be a combination of courts required in the aftermath to investigate and prosecute the Iraqi regime’s atrocity crimes. I have argued the three major tiers of court should be established as the 

most practical means of achieving justice. 

Tier No. 1 would be an ad hoc international criminal tribunal to 

be established by the U.N. Security Council to investigate and 

prosecute that category of top leadership suspects that we have 

been discussing this morning, and that could also be top leaders 

with respect to their crimes against U.S. forces in the Gulf War or 

this war. 

The second category would be special Iraqi courts, to be established under presumably newly promulgated Iraqi law and supported with international assistance, to investigate and prosecute 

mid- and low-level perpetrators. 

Third would be the military category that Hays Parks referred 

to—courts martial and military commissions established by the 

United States to investigate and prosecute that category of suspects, presumably the mid- and low level perpetrators, who have 

committed individual acts against U.S. personnel. 

Now, assuming that a fair number of the leaders of the Iraqi 

regime survive Operation Iraq Freedom, there would be ample justification for the establishment of an international criminal tribunal by the U.N. Security Council acting under its Chapter 7 enforcement authority. The enormity of the atrocity crimes committed 

over the last quarter-century against not only the Iraqi people but 

also against Iranians, Kuwaitis, and coalition forces in the Gulf 

War and the current conflict, and the responsibility of the Iraqi regime for those crimes, point to the imperative need for accountability and punishment. During much of the Clinton Administration, the official policy of the U.S. Government was to support the 

gathering of evidence of the Iraqi regime’s atrocity crimes and to 

21

1The prepared statement of Professor Wedgwood appears in the Appendix on page 41. 

seek the ultimate establishment of an ad hoc criminal tribunal on 

Iraq. 

Although the success of Operation Iraqi Freedom will present the 

opportunity for Iraqi society to reconstruct and reform its domestic 

judicial system, that fact alone by no means excludes all of the advantages during the immediate aftermath of Saddam Hussein’s tyranny of an international criminal tribunal for Iraq. Indeed, there 

may be even more reason and practicality now to establish such a 

tribunal. My written testimony sets forth eight reasons. I will briefly cite the lead sentences to each one. 

Reason No. 1: An international criminal tribunal established by 

the U.N. Security Council—with the required support or acquiescence of France, China, and Russia—should be perceived in the 

Arab world and globally as a manifestly legitimate court of law before which to prosecute the Iraqi regime’s leadership. 

Point No. 2: The diplomatic meltdown in the U.N. Security Council preceding the coalition military intervention into Iraq last 

month poses many challenges for future cooperation among Security Council members during the aftermath. Security Council approval of a resolution establishing an international criminal tribunal for Iraq would be a practical first step in repairing relations 

among Council members. 

Senator SPECTER. Ambassador, we are going to have to stick 

closely to time, so if you could summarize, we would appreciate it. 

Ambassador SCHEFFER. Well, I will just state that there are 

many other reasons that would argue in favor of an international 

criminal tribunal. 

And I would close by stating that we face at the United Nations 

an enormous challenge now in resuming our relationship with 

other Council members. I know of no firm opposition in the Security Council at this time to an effort to look at this issue in terms 

of an international criminal tribunal. In fact, it could be the initial 

bridge that could bring us back into a working relationship with 

Council members with respect to the aftermath of Iraq. 

Thank you, Senator. 

Senator SPECTER. Thank you very much, Ambassador. 

We now turn to Professor Ruth Wedgwood, the Edward Burling 

Professor of Law and Diplomacy and Director of the International 

Law Organization at the Paul Nitze School of Advanced International Studies at Johns Hopkins University. Professor Wedgwood 

received her law degree from Yale University—a fine institution, 

Professor Wedgwood. The floor is yours. 

TESTIMONY OF RUTH WEDGWOOD,1 PAUL H. NITZE SCHOOL 

OF ADVANCED INTERNATIONAL STUDIES, JOHNS HOPKINS 

UNIVERSITY, U.S. MEMBER OF THE UNITED NATIONS 

HUMAN RIGHTS COMMITTEE 

Professor WEDGWOOD. Thank you, sir. 

Well, in order to use the time most effectively, let me contrast, 

if I may, my position with Ambassador Scheffer’s. I would not favor 

using a United Nations ad hoc tribunal here. They did venerable 

service in Rwanda and in Yugoslavia. Those are conflicts that were 

22

in large part over and done with. And the particular problems we 

would face here are several. 

First of all, if you look at what kind of personnel you would have 

on such a tribunal, you would probably have at most one U.S. 

judge, one British judge. And trial chambers sit in threesies, so 

there might well be trial chambers where there was no allied 

judge. 

Second, there would probably not be a U.S. prosecutor. 

Third, as you yourself pointed out, there could be no death penalty because the United Nations has an objection to that as a matter of policy, and our European allies. 

Fourth, you would face pretty daunting Security Council politics 

both in its formation and in its enforcement measures. Ad hoc tribunals are dependent on the Council for carrying out any of their 

orders that are defied. 

And finally—and here I stand my ground—we are going to have 

three cross-cutting equities when we try war crimes. I am very 

much in favor of bringing the leadership to account and vindicating 

the interests of our troops and the Iraqi people. But we are going 

to at times have to be doing business with people, carefully, prudently, both to locate caches of weapons of mass destruction, to run 

down all the terrorist links that the Iraqi regime may have to al 

Qaeda and Hamas, and third, even as the war concludes, to think 

about surrenders in place, if that will save allied and civilian lives. 

So when we give something over to the United Nations, we do 

lose this kind of operational control. The United Nations cannot 

handle intelligence, does not want to handle intelligence. So the 

kind of debriefings that we will want to do—before charging, even 

after charging—of people who have war crimes liability about 

WMD and terrorism is going to be wholly out of our universe if we 

give it over to the United Nations—much as I respect the United 

Nations and all of the work that it does in so many areas, like refugees and human rights norms. 

The solution I suppose I would favor is, first, for war crimes, to 

use the modality of military tribunals. It is the traditional way of 

enforcing the law of war. Article 84 of the Third Geneva Convention actually demands that prisoners of war be given a military tribunal trial, lest GIs of the detaining power would themselves be 

tried through some other means. So military venue is the preferred 

venue under the Prisoner of War Convention. People often forget 

that. 

But it has also been the modality used in World War II and Nuremberg and the Far East. It can be, in a sense, multilateral. You 

can have judges from many different nationalities. You can have 

British, or Australian. Even folks who were not fighting the war 

with us could be invited, if prudent, to sit as judges on such a commission. You would have to pick whether it was a military commission or a military tribunal in the nature of a court martial. That 

might depend upon how one reads the Third Geneva and how one 

adjudicates the status of combatants like the Fedayeen versus regular armed forces. 

But for war crimes I would favor using a military venue, which 

is the traditional place to develop battlefield law. We are out of the 

23

1The prepared statement of Mr. Malinowski appears in the Appendix on page 50. 

habit because of the Rwanda and Yugoslav tribunals, but it is the 

way we have done it otherwise for decades and decades. 

For the crimes against the Iraqi people, the terrible Anfal gas 

campaign that killed so many hundreds of villagers and Saddam’s 

extermination of his political opponents and slaughter of the Marsh 

Shi’ia in 1991, my preferred suggestion would be to have what are 

now called mixed tribunals. It is the model used in Cambodia and 

in Sierra Leone. It goes to what I thought was your concern, that 

purely local courts may be seen as potentially biased, potentially 

unfair in a society that is still quite divided, where you have significant ethnic and tribal differences. 

So what it involves is a mixture of international and local personnel, both as prosecutors and as judges. That gives the local folks 

some sense that people are watching, there will not be a campaign 

of ethnic revenge, of Shi’ia against Sunni or Sunni against Kurd. 

But at the same time, it brings the court home. It, I think, addresses Ambassador Prosper’s concern that this not be a removed process of justice in a far distant city, that this be something as part 

of the local reconstitution of the political culture of Iraq. 

So those are the two options I would put before the Committee 

as probably being the most prudent in light of the real-life interests 

that are at stake for us, for our allies, and for the Iraqi people. 

Thank you. 

Senator SPECTER. Thank you very much, Professor Wedgwood. 

Our final witness is Tom Malinowski, Washington Advocacy Director for Human Rights. Prior to joining the Human Rights 

Watch, he was special assistant to President Clinton. He is a member of the Council of Foreign Relations, and has a political science 

degree from the University of California at Berkeley and Oxford 

University. 

Thank you for joining us, Mr. Malinowski, and we look forward 

to your testimony. 

TESTIMONY OF TOM MALINOWSKI,1 WASHINGTON ADVOCACY 

DIRECTOR, HUMAN RIGHTS WATCH 

Mr. MALINOWSKI. Thank you, Mr. Chairman. And let me add my 

appreciation to that of everyone else for the leadership that you 

have shown on this issue for many years. You are absolutely right, 

it is a matter, and has been, of utmost importance. 

As you can imagine, my organization has been waiting many 

years for the day when Saddam and his regime could finally face 

accountability under the law. We have spent almost two decades 

cataloging a long and harrowing list of grave abuses that should 

be prosecuted and, hopefully now, will be prosecuted. 

In terms of the venue, let me say that I agree with the administration that crimes committed by Iraqi forces during the present 

conflict, to the extent that they have been committed against coalition forces, can be prosecuted by coalition forces themselves in either military or civilian courts. 

But what about crimes committed in the past against the Iraqi 

people, which is, I think, the central question. Overall, we have estimated that Saddam and his regime are responsible for murdering 

24

or disappearing at least a quarter of a million Iraqi civilians since 

Saddam came to power in 1979. As of a few days ago, at least, Saddam was the only sitting world leader undeniably guilty of the 

crime of genocide. And the evidence of that crime and many others 

is vast, as you know. 

We have, for example, 18 tons of documents that were seized by 

Kurdish rebels after the post-Gulf War uprising in 1991, which 

were air-lifted to Washington, which contain an extraordinary 

treasure trove of information about what happened. We even have 

audio tapes of the man we all know as Chemical Ali now in which 

he boasts and brags about what he did, including one tape in which 

he simply says of his campaign against the Kurds, ‘‘I will kill them 

all with chemicals.’’

As the regime falls, as we watch it fall, clearly there will be an 

even larger mountain of evidence piling up about other crimes of 

the regime in the South against the Shi’ias, the Marsh Arabs, and 

so forth. 

And let me add as an aside here that it is very important this 

week and next week that coalition forces in the field make a special 

effort to secure prisons and police stations and the documents that 

reside within them so that this evidence can be preserved. We have 

seen reports of Iraqi civilians, understandably, carting these documents away so that they can pursue their own quest for truth 

about what happened to their missing loved ones. But that is something that we need to take control of so this whole system can work 

in the future. 

Now, how should those horrific crimes be tried, and by whom? 

We have heard from the administration that they favor an Iraqiled process. I hope that David Scheffer is right, that does not necessarily rule out other options. But my sense, my reading of it is 

that they are ruling out either a United Nations tribunal or even 

the option that Ruth Wedgwood suggested, a mixed tribunal, which 

I think would be a very good compromise as well. 

I appreciate the administration’s desire to give Iraqis ownership 

of the process. Unfortunately, there are now only two broad groups 

of Iraqis from which judges and prosecutors could be drawn. They 

could be drawn from the existing Iraqi judicial system—which has 

been hopelessly compromised by totalitarian rule, or they could be 

drawn from the opposition, which has yet to establish any kind of 

democratic legitimacy inside Iraq. I think a court drawn from the 

opposition will have a hard time appearing impartial judging Baath 

Party crimes, or impartial prosecuting crimes that may have been 

committed by figures associated with the opposition. 

I think we need to keep in mind that a trial of senior Iraqi officials will be watched intensely in every part of the world. It may 

be the single most important moment in Iraq’s transition from the 

rule of one man to the rule of law, the single most important opportunity to demonstrate to the world the evil of this regime. There 

is an overwhelming need to establish a process that will be widely 

seen as impartial and fair. 

Trials conducted without any kind of United Nations authority 

by a government that has been in reality selected by the United 

States will widely be seen as American trials. They will not have 

credibility with many Iraqis or, in particular, with people in the 

25

broader Arab world. They are unlikely to receive financial support 

from U.S. allies in Europe and elsewhere. And very importantly, 

they will have no authority to compel cooperation from third countries. And we have seen reports that Iraqi officials may be fleeing 

to Syria. That is a very important practical consideration. 

A stand-alone international tribunal or a mixed tribunal composed of both Iraqi and international judges would be a far better 

option. It would enjoy tremendous legitimacy, I think, particularly 

if it draws its authority from the United Nations and many of its 

judges from the Arab world. It is clearly, I believe, the option preferred by America’s British allies. It is the goal the Senate embraced when it passed your resolution, Mr. Chairman, in 1998, calling for a U.N. tribunal—and, interestingly, a goal the Senate reaffirmed last week when it passed the War Supplemental, which 

contained an appropriation of $10 million to create an international 

war crimes tribunal. And it is an option that I hope the administration will still consider, listening to all the advice that it has received on this question. Thank you very much. 

Senator SPECTER. Thank you very much, Mr. Malinowski. 

Ambassador Scheffer, can you give me a brief response as to 

what you think of Professor Wedgwood’s mixed commission concept? 

Ambassador SCHEFFER. I think there could be some difficulties 

with that. Our experience in the past with both Sierra Leone and 

Cambodia on this issue of mixed tribunals merited pursuing that 

process. But it was not easy. It required years of negotiation. And 

it remained a very difficult exercise. I would not presume that 

process would necessarily be the structure that would work for 

Iraq. It might. But then keep in mind, too, the advantage that if 

you had an international criminal tribunal, it would have that 

Chapter 7 authority with respect to any suspects who might be on 

foreign territory or documents or witnesses, namely the enforcement authority to obtain those documents or gain access to suspects or witnesses. Whereas a hybrid court would not have that authority. 

It is also possible that a tribunal in fact could be sited on the 

territory of Iraq so that you would have the benefit of the presence 

of that internationally legitimate court on Iraqi territory, but it 

would have all of the authority that is vested in the Yugoslav and 

Rwanda tribunals that are so useful to those tribunals. I do think, 

though, at some point there is value in having, obviously, the dialogue with the new Iraqi leaders and those who are invested in this 

process to see what it is that will work for them. The administration has a very clear point here. 

I will say, however, that in the past the Iraqi opposition has very 

firmly supported the creation of an international criminal tribunal. 

So I think we will need to see what the entirety of their viewpoint 

is on this before we start presuming that an Iraqi-led process in 

fact is not an international tribunal. 

Senator SPECTER. Professor Wedgwood, how can even a mixed 

commission project the kind of international legitimacy which 

would tend to bring the Arab doubters into the fold to believe that 

there was some real multilateralism in what the United States 

would be leading on the effort to prosecute war crimes? 

26

Professor WEDGWOOD. Well, I was referring to the mixed commission for military offenses against our troops and allied troops in the 

course of the war. There, I think, the proof is in the pudding. These 

would be in large part open trials, so that the world would see 

what the process was like. One could, if prudent, include not only 

judges from the actual coalition members but even from other 

countries. I do think we have to be realistic about the extent to 

which some countries may feel intimidated by their own populations, so that the suggestion earlier on, for example, by a good 

friend of mine to try bin Laden in a court with 30 Muslim chief 

justices from around the world sounded great on paper, but not so 

good in real life. 

But I think by careful inclusion, varied personnel, and by having 

just a squeaky-clean procedure and dead-bang proof, I think that 

the merits of the charges can be put on their own bottom. 

If I may just say in response to David’s point on the need to get 

cooperation to make any of these courts work, any of the real efficacy of the Chapter 7 Security Council-created ad hoc tribunals depended on U.S. support and British support. They are not self-executing. You have to have the allies behind them. 

My worry, I guess, is in miring a court again in the very fractious politics of the Security Council. This is not a happy time in 

the Security Council. And nations will try to use these courts for 

their own purposes, in a worst-case scenario. I also worry, again, 

that even in the course of trials of local crimes that there may be 

equities about WMD, terrorist links, surrender in place that we 

cannot in any way vindicate through a tribunal that is wholly outside of our particular influence. We will not have the prosecutor; 

we will have only one judge. 

Senator SPECTER. Mr. Malinowski, do you think it is important 

to preserve the option of the death penalty in this situation? 

Mr. MALINOWSKI. My organization opposes the death penalty, so 

we have a philosophical disagreement about that. I certainly appreciate your views, Senator. 

I would, perhaps, try to also put that in the context of international perceptions and legitimacy, though. The death penalty, as 

you know, is widely unpopular in many countries around the world, 

including many that are close U.S. allies. And I think one thing 

that does need to be considered, whatever our individual views on 

the death penalty, is the perception of firing squads in Baghdad of 

senior Iraqi leaders. What perception that will have around the 

world, I think, is something that needs to be weighed in making 

that decision. 

Senator SPECTER. I have a great many more questions, but no 

more time. Senator Durbin has made a specific request that the 

record be left open for questions, and we will do that. I would like 

to submit some more questions to you as well. This is going to be 

an ongoing process. This is only the first hearing on this subject. 

I am going to be pressing the resolution this afternoon, and there 

is going to be a certain amount of tension, which is not unexpected, 

between the Executive Branch, especially the Department of Defense, and Congress and our ideas. But these are very weighty 

matters, which we are going to pursue. Thank you all very much. 

[Whereupon, at 12:35 p.m., the Committee was adjourned.]

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