Prosecuting Crimes Against Humanity

This is a partial transcript of Special Report with Brit Hume, December 5, that has been edited for clarity.

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JIM ANGLE, GUEST-HOST: The Iraqis plan to establish a tribunal to prosecute crimes against humanity. A court that might one day try Saddam Hussein and other former officials who committed atrocities against their own people.

Joining me to discuss this new development is David Scheffer, former U.S. ambassador at large for war crimes during the Clinton administration. He helped negotiate the international tribunals for the former Yugoslavia and Rwanda. Welcome.

DAVID SCHEFFER, FMR. WAR CRIMES AMBASSADOR: Welcome. Thank you.

ANGLE: Thanks for joining us. From what we have seen, since Saddam was ousted, I mean we all knew from the outset, from long before he left what the situation was there, but perhaps not how bad it was. We have learned a lot and it appears there are plenty of crimes against humanity that could be prosecuted.

SCHEFFER: There's no question there's also charges of genocide, charges of serious war crimes. So you have several baskets of major crimes that he can be charged with.

And I might say that while it is informative, what has been discovered since the occupation began, those of us who always assume the worst with individuals like Saddam Hussein, we clearly saw through the end of the '80s and throughout the 1990s, a record of criminal activity that would lead anyone to assume that mass graves are going to be discovered in Iraq.

ANGLE: You mentioned the mass graves. I think everyone more or less agrees there are about 300,000 people found in mass graves? You know, when you think about it, it is hard to imagine 300,000 people being killed in large groups like that.

SCHEFFER: You know, it's interesting particularly for Americans because 9/11, we had almost 3,000 people killed; and 9/11 sends shock waves through the American society. But it always needs -- we need to remember that in other societies, whether it be Rwanda or the Balkans or Iraq, these numbers are in the tens and usually in the hundreds of thousands, the victims of these criminal activities. So, the societies in which those crimes take place need an easy enormous amount of attention and almost nurturing in this process to bring them back into the international community.

ANGLE: Now obviously it is a lot more than Saddam. It is all of his henchmen who cooperated in this and who are part of this whole regime that perpetrated these kinds of crimes. How hard is it to go back -- well, you can often find the people -- how hard is it to go back and build a case against them?

There's been a fair amount of evidence. We have some, in fact, if we can show it. There's obviously some videotapes of people being whipped. There are people thrown off buildings, which we saw earlier in the program. There is someone being decapitated on one of these tapes. There is obviously plenty of evidence of things being done. But you see the people who are doing it have hoods on. How do you find those people?

SCHEFFER: Well, this is one of the great challenges that this new -- perhaps this is new Iraqi court, that may be announced very soon, will have to face. And that is the irony is when you are dealing with very large atrocities of this character, where you have hooded men who are seen on videotapes, but not Saddam Hussein at the scene of the crime.

It is a very sophisticated and complex process as to how do you build the evidence that works up the food chain, the command chain, to the very top leadership to ensure that in a court of law, in accordance with due process, they, in fact, can be successfully charged with the command structure of this kind of crime.

And the other irony, if it's an irony, it is a sad one, is that it is exactly those individuals with the hoods on their heads that you see in the videotapes who, in the end -- in the end, may actually be the subjects of amnesties at the lower levels in society. Why, because these people number in the thousands, those who actually committed the crimes. And it may be impossible for the Iraqi court system to actually prosecute them.

ANGLE: Yes. What -- how difficult is it to do this and what are the advantages and disadvantages of the Iraqis doing this on their own, rather than turning to some international criminal court like the Hague? Which we did in the case of Rwanda and the Balkans, where a number of people have just recently been sentenced to very long-terms?

SCHEFFER: Right. Well, I think one of the great challenges for Iraq will be to meet the standards, frankly, that have now been set in the Hague and in Arusha, where the Rwanda tribunal is. In the sense that they demonstrate the very professional approach to evidence gathering and to bringing very top leaders to justice, where you need to bring a lot of witnesses in, a lot of documentation. And it is a very professional undertaking and we now have that experience.

ANGLE: To take out any hint of people trying to get even.

SCHEFFER: Right. And you know, the other interesting thing is that as we built those courts in The Hague, we were very, very attentive to due process requirements for the defendants, so that the trial would be seen as fair. And of course, in the war against terror, we've seen that concept challenged. Such that now in Iraq, if we do see a new criminal court established in Iraq, with Iraqis basically running it, we're going to have to be very, very careful that due process requirements are, in fact, established in that system. Particularly as you get higher up the command chain, because that's where the legacy will be found as to the due process requirements for trials of this character.

ANGLE: David Scheffer, thank you very much.

SCHEFFER: Thank you.

ANGLE: One last thing. Do we ever deter these things? Or is it a question of getting justice?

SCHEFFER: You know, when I worked on these issues, it is a long-term victory. I think 40 to 50 years from now ... these will be seen as great acts of deterrence.

ANGLE: All right. Thank you very much.

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