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[Senate Hearing 108-174]
[From the U.S. Government Publishing Office]

                                                        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

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                            WASHINGTON : 2003
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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           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

                            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

 
 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.
    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. participants 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----
---------------------------------------------------------------------------
    \1\ The prepared statement of Ambassador Prosper appears in the 
Appendix on page 27.
---------------------------------------------------------------------------
    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 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.
    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.

 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Parks appears in the Appendix on 
page 30.
---------------------------------------------------------------------------
    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 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.
    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 tribunals 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 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 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.
    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.
    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.
    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 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 side-by-
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?
    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 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 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 Secretary 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?
---------------------------------------------------------------------------
    \1\ The prepared statement of Ambassador Sheffer appears in the 
Appendix on page 33.
---------------------------------------------------------------------------
    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.
    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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Professor Wedgwood appears in the 
Appendix on page 41.
---------------------------------------------------------------------------
    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 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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Malinowski appears in the 
Appendix on page 50.
---------------------------------------------------------------------------
    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 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 
Iraqi-led 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 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?
    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.]

                            A P P E N D I X

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