Global Policy Forum

Tony Jones: Now to the UN appeal judge, Geoffrey Robertson QC. After his work on the Sierra Leone war crimes tribunal, Geoffrey Robertson has been helping to train the Iraqi judges who're expected to oversee the trials of Saddam Hussein and his henchmen. As you'll hear, he believes the United States may have to rethink its insistence that Saddam's trial take place in Iraq, which Robertson describes as a "moral wasteland". But we began with a discussion about the US marine who shot dead a wounded Iraqi in a Fallujah mosque.

Geoffrey Robertson, thanks for joining us. Now, millions of TV viewers have seen yesterday's horrifying video of a US marine evidently killing a wounded man in cold blood. Is that evidence of murder, is it evidence of a war crime or is there another category of justice for soldiers who kill enemy wounded after a battle?

Geoffrey Robertson, UN judge and human rights lawyer: Well, it's evidence, yes, what lawyers would say is prima facie evidence, which means there is other evidence to be heard, particularly the marine's story. But, look, it's been a war crime for 500 years. Back in the English Civil War in Cromwell's time, armies were never permitted, and soldiers were prosecuted, if they killed enemy who had surrendered or who, what is termed horde a combat, which is a French term meaning, in effect, "out of action because of serious injury". So, on the face of it, this is a breach of the Geneva Conventions.

On the other hand, you've got to consider the pressures that the soldier was under, what was going through his mind at the time. There is evidence that mujahideen had been booby-trapping themselves, strapping compression mines, and a number of marines have been killed by dead bodies that have exploded. So you've got to factor all of that in to deciding whether there's the moral culpability in the case of that individual marine.

But there are wider issues, I think. This isn't as serious as Abu Ghraib which indicated systematic torture. It is serious, though, because there is the possibility that the rules of engagement which provide for what is termed "clearing ground" may permit rather more permissively than international law does, the pumping of a couple of bullets into a seemingly dead body or a body that twitches and that's something that I'm sure the American investigation, and you've got to understand that the American military are very good at investigating and they do court martial people where there is clear evidence of war crimes. That will bring that to light.

Tony Jones: You could argue - we'll come back to that in a moment - but you could argue that soldiers who've been killing in heated and brutal close combat are not in their right minds, in fact. Could that be a mitigating circumstance?

Geoffrey Robertson: Well, there is some suggestion that this particular soldier may have been put back into action too quickly after he had been himself wounded in a previous engagement and that has to be factored in to a fair consideration of his state of mind and, I mean, you've got also to protect the Geneva Convention principle that those who have surrendered or who are out of action through serious injury have to be treated humanely. I mean, that's been the case ever since Breaker Morant was prosecuted for that. There were problems about the fairness of his trial and Kitchener's complicity. But killing prisoners, killing those who have surrendered and are in no state to fight back is a serious matter.

But then the camera doesn't tell the whole story and it's the whole story that needs to be considered, particularly the pressure on the individual marine and what he assumed from a movement of a body, a twitch or a reach perhaps for a gun or, indeed, to detonate the compression mine that has in some cases been used by the mujahideen in precisely these circumstances.

Tony Jones: All right. This is the second time in as many weeks that our program has shown footage which appears to show marines killing a wounded enemy. Just to fill in the detail of the other case, we see - you don't actually see the victim, but you do see marines talking about a wounded man behind a wall and then one climbs up on the wall, leans around with his weapon, sights it, shoots and says, "He's done." And you get the impression they've just killed a wounded man there as well. Now, the Breaker Morant case - or the underlying part of that case was there was secret military orders. Is that the sort of thing you believe must be investigated now?

Geoffrey Robertson: I think the failure in Breaker Morant in killing prisoners was unacceptable. The man should have been put on trial. What didn't come out, and is emerging only 100 years later, is the prospect of secret orders of a system. It's the systematic torture at Abu Ghraib which was wrong. Here, we need to be satisfied that there is no systematic secret order given to marines and, indeed, to English soldiers for clearing ground that does require them almost automatically to put two bullets into a seemingly dead body. That is the kind of thing that we need to ensure, otherwise this is a one-off case that needs to be looked at on its merits.

But Iraq is a moral wasteland, that the moral anarchy in Iraq today is just exemplified by the appalling assassination of Margaret Hassan, the CARE worker, and that again emphasises, if only the need, the urgent need, to restore some kind of rule of law and some kind of legal system in the country that has been invaded.

Tony Jones: It is interesting to consider the notion of a moral wasteland and I guess what I'm going to ask you here is - do incidents like the assassination of Margaret Hassan indicate that we're now in a conflict with terrorists, kidnappers and others which requires you to think differently about legal principles?

Geoffrey Robertson: I think that is the great challenge. I think that whether you are, or were, in favour of the invasion or against it, you have to now at least draw a deep breath and say, "Whatever the rights and wrongs of the invasion of Iraq were at the time, we are now faced with the situation that is partly of our making," and I include Australia in that, as an Australian, and we've got to come to grips with it.

On the one hand, we have 40-odd playing card suspects - men detained, suspected of crimes against humanity, genocide - the worst international crimes. They've got to be put on trial, they've got to be put on trial fairly and with some sort of expedition. I've actually been meeting the judges of - the Iraqi judges who, at the moment, are tasked with trying them. They're enormously courageous men because trial in Iraq could mean reprisals for all the judges. We've got to protect those men and I feel very strongly about that. It may mean putting Saddam Hussein and others on trial outside of Iraq if the judges' security can't be protected. We've got to bring in a form, a rule of law, because, after all, I don't know that the Americans quite realise this, but they're operating under the Geneva Convention at the moment.

After the elections, once there is an elected government, then in law they will be, as it were, assisting the civil power and, as such, their forces will come under the law, the court system in Iraq, or at least that's the principle. So, we've got to put in place a court system and a legal system which can work and where those who operate it are not subject to kidnap and assassination.

Tony Jones: You say you've been talking to these judges. Have you, indeed, been training them in how to conduct these kind of trials and particularly the trial of Saddam Hussein, which is going to be the biggest of them all?

Geoffrey Robertson: That's right. Whether they should be trying - they've obviously got to be assisted. They've got to be provided with a secure basis for doing so. These are terribly - the worst kind of allegations. One has only to think back to Halabja and the gassing of thousands of Kurds and the genocidal implications of that and the charge of genocide. These are terrible crimes and they've got to be properly tried and the people who try them, and it may be that it will be necessary to bring in international judges to try them, but that has to be accomplished fairly and it's got to be accomplished with some speed, some expedition. These men can't be held in prison without trial indefinitely.

Tony Jones: What about these Iraqi judges? What sort of people are they? Are they aware that essentially with the situation as it is at the moment they would be putting their lives at risk participating in these trials if the trials were public, in particular and if they were identified?

Geoffrey Robertson: Yes. Well, they will be. They are identified and they're very courageous men, but they've got to be protected, and, as I say, it may be necessary to rethink the kind of tribunal which tries Saddam Hussein. It may be necessary to bring in an international component. It may be necessary to have the trial held outside the country if security cannot be guaranteed. But it's got to be an open process. The judges have got to be known and visible and so it will require a great deal of courage if the trials are to be held in the moral wasteland, as I say, that Iraq is at present.

Tony Jones:You are aware that the US has been rather insistent that the trial happen in Iraq? They presumably want it to be not a show trial, but a showpiece of a new justice system.

Geoffrey Robertson: Well, ideally, trials happen at the scene of the crime. That is where retribution is appropriate. That is where the victims can obtain some satisfaction. That is where the evidence is. In Sierra Leone where I sit as an appeal judge, we have the advantages of doing justice at the scene of the crime. We're always overwhelming I think if it can be done and fortunately it can be there. But in the current situation in Iraq until the civil war, in effect, is diminished and until those participants in the trial can be protected and, indeed, it's not just the big trials in a sense the Saddam Hussein and his alleged accomplices have to be dealt with, but there are also - there's a great amount of criminality. In fact, poor Margaret Hassan may well have been a victim not of a political terrorist group, but of criminal kidnappers. It's the rule of law at that level that needs to be established and it's going to be a long process.

Tony Jones: Geoffrey Robertson, we thank you once again for taking the time to come and talk to us tonight. We'll have to leave it there.