Q&A with Professor Linda Malone: Participating in the Trial of Saddam

Could you tell us about the Iraqi Tribunal Clinic and the role William and Mary students will have in the trial against Saddam Hussein?

LM: In December of 2004 I was asked if I would be willing to organize some students to research legal issues and write memoranda on legal issues that were going to be coming before the Iraqi Special Tribunal. We've done this in the past with the Yugoslavian tribunal of the United Nations and the Rwanda tribunal, and other similar types of pro bono projects. With the help of the law school administration I was able to get it approved as a clinic course for three credits and ended up limiting the course to 20 students, because we had to have a certain number for 10 questions, and limited to second- and third-year students. We have been working hard on the project since they returned from Christmas break in the second week of January. In fact, the first drafts of their memoranda are due in mid-March.

You are working directly for the Justice Department?

LM: There is a division called the Regimes Crimes Liaison Office of the Department of Justice that is providing whatever logistical support they can to the Iraqi Special Tribunal, including training of judges and support by providing them with legal resources and research. The DOJ is our client. I am the attorney, and the client is the Regimes Crimes Liaison Office of the Department of Justice, with the students working under my supervision for that client.

The students are submitting memoranda, 40- or 50-page documents, to this office?

LM: It's probably more like 50 or 60 pages, but there will be memoranda after my review submitted to the Department of Justice on these issues that will be translated into Arabic and provided to the judges along with copies of some of the most important legal sources and precedents they are using in the memoranda. Obviously one of the logistical problems is simply access to legal resources for the Iraqi judges.

Why do the Iraqi judges need your help?

LM: Obviously, there are problems in terms of infrastructure and the unique nature of the trials. Even the most fully developed and financially affluent country would have quite a task trying to gear up for this type of tribunal without any external assistance. The idea is to provide them with the assistance that they need to conduct the tribunal in Iraq.

Why law students? Why not the Department of Justice?

LM: The Department of Justice is providing them with legal assistance and training but there's a tremendous amount of work to be done in terms of investigation and fact finding. There are many other aspects to the proceedings that are very time consuming, so one aspect of it that can be easily delegated in this way is to assign particular legal questions that will be addressed by supervising law professors who are experts in the field, with students working for these professors and doing the kind of work they are accustomed to doing in terms of legal research and writing.

William and Mary Law School is one of three schools participating?

LM: One of three. The other two are University of Connecticut and Case Western University. We have already been asked if we could continue to assist this summer and next fall so hopefully there will be more schools enlisted.

Will the students' work be used for other trials, or just Saddam's?

LM: We provide it to the tribunal and how they decide to use it will be left to their judgment, but certainly the idea is that the legal work has applicability to more than just one person. The issues are broader and more significant than being specifically applied to one situation.

What are the challenges the tribunal faces?

LM: There are significant challenges of impartiality in any high profile and highly publicized trial. Having it in Iraq, making it an Iraqi tribunal, and having it be conducted by Iraqi judges makes it more accessible to the Iraqi populace. Those are the justifications for having it in Iraq despite obvious difficulties created by that situation. It has not received United Nations support because the United Nations is of a view that primarily there needs to be a mix of Iraqi judges and international judges. Whatever the disputes might be as to where it should take place or how the composition of judges should be formulated, it is a very significant, precedent setting development in international criminal law so that assistance should be provided to ensure it is as fair and as valid as possible.

Is it possible for Saddam Hussein to receive a fair trial?

LM: I think it's possible or I wouldn't be working on this project.

What impact will the current hostile situation in Iraq have on the proceedings?

LM: Obviously there are significant security risks just as there as there were for the judges in Chicago and Atlanta in the past few weeks. Unfortunately there is always that possibility and the possibility is greater in this situation. I think it's reasonable to assume that the others who are working for the tribunal are very courageous people who are taking a significant personal risk in order to see that this tribunal does serve the purposes of justice, is impartial, and is recognized as fair and balanced.

Is it possible for Saddam to be found innocent?

LM: Part of being fair is you don't prejudge what the outcome might be and it depends on what the charges are, what the facts are, what evidence can be gathered. Certainly, Saddam is not an innocent person in a sense of having no moral culpability for things that have occurred. Determining legal culpability is a different matter and it has to be determined on the law and the facts given the specific situations with which he's charged.

Since Saddam is such a bad guy, is it difficult to separate the personal from professional aspect of these proceedings?

LM: That's what human rights lawyers and international criminal lawyers do all the time. The very nature of the type of work we do involves dealing with very volatile, emotional and sometimes horrific situations. It is disturbing and it should be disturbing in dealing with some of the situations and facts that are presented, but more generally that's the nature of what all lawyers do -- to try and maintain an appreciation of the human situation while maintaining enough of a distance to be impartial and assess what the law says and requires.

Since you have done this before, you're probably not surprised with how the students have performed?

LM: The students' work has always been superb and we really do see in our students the idea of the citizen-lawyer to which William and Mary Law School is dedicated. The concept of the citizen-lawyer is that every attorney has an obligation of pro bono, selfless, public service and community service and, in this context, global service. We also have significant number of students who have some affiliation with the military so they have been interested for several years in these issues and the program more generally in terms of national security law and human rights law.

How important is this trial to establishing credibility in that region?

LM: It's very important because it's going to be an extremely important precedent in this area of the law generally and in terms of demonstrating there is no impunity for committing the most serious offenses under international criminal law. It builds upon what was done by the U.N. tribunals, and adds to the contributions of the hybrid tribunals like Sierra Leone which are a mix of international law charges and domestic law charges, as is the case here. There are some offenses that are within the jurisdiction of the tribunal that are offenses under Iraqi law.

How important is it to the credibility of the process to have the United Nations on board?

LM: Certainly, it would be good to have United Nations support for it and I don't know that it might not be forthcoming depending on how things develop. The United Nations is taking a position that these kinds of tribunals should always have international judges. As long as that is its position, that is not the case here and no matter what precautions are taken or procedures are followed it is not going to satisfy that format. I don't know that it necessarily means that at some point the United Nations might not see fit to endorse it depending on how it proceeds. Obviously, the Nuremberg tribunal did not have United Nations approval because there was no established United Nations at that time to approve it. Subsequently, the General Assembly said that it endorsed the Nuremberg principles so after the fact it gave its endorsement to the legal principles of the Tribunal. There's some precedent for that to happen formally or informally.

Is the death penalty a sentencing option for the Iraqi tribunal?

LM: Yes, and that is the other reason why it does not have U.N. endorsement. The United Nations will not support any tribunal that allows the death penalty.