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Experts Debate the Issues: The Dujail Trial

July 17th, 2006

Issue #43: Lessons Learned from the Dujail Trial

Post-Conflict Justice in Iraq:
Is the Glass Half-Full, Half-Empty, or is it a Phyrric Achievement?
By M. Cherif Bassiouni

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 245 (2006).

The Iraqi High Criminal Court (IHCC), formerly called the Iraq Special Tribunal (IST), has faced many difficulties since its inception. The past instructed the present, and shaped the future of an institution that was much needed, but so far has yielded few positive results.

Prior to the establishment of the IST in 2003, there was a great deal of ambivalence in the US and among Iraqi expatriates about whether there should be an international tribunal established by the Security Council like the ICTY and ICTR, a hybrid international/national tribunal like that of Sierra Leone, or a purely national tribunal, which is part of the ordinary Iraqi system of justice. The Department of State (DoS) Future of Iraq Project’s Working Group on Justice dealt with these three options, on the basis of a study I prepared comparing the merits of the three models, including a complete statute for an international model. The National Security Council (NSC) however, for political reasons, did not circulate the DoS report, and the insights and recommendations of the Future of Iraq Project’s Working Group on Justice were unused by the Administration. This loss had something to do with the subsequent errors made in connection with the IST’s establishment and statute.

Some government and UN experts, academics, and NGOs favored the internationalized approach through the Security Council’s establishment of a tribunal to prosecute major Iraqi offenders. Others from these categories favored a hybrid tribunal which would balance international concerns and Iraqi legal tradition. Few favored the use of Iraq’s national criminal justice system because they thought that system incapable of producing fair and impartial prosecutions. I did not share these views. My reasons were that a national institution would advance the goals of the Rule of law in Iraq and help sustain a new era for the Iraqi legal system, provided the judges, investigating judges, and prosecutors received adequate training, the institution to be well-staffed and well-funded. I also thought it would be cost-effective and provide for the death penalty as the Iraqi legal system permits, because no one in that country would have tolerated the possibility of Saddam and his cronies leading a fairly comfortable life in some international prison. This was the same issue faced at Nuremberg, where it was resolved to apply the death penalty. It is noteworthy, however, to recall Winston Churchill’s argument to Franklin Roosevelt and Joseph Stalin at the Moscow Summit of 1943, when he argued against the prosecution of major Nazi war criminals, urging instead that they should be given a short summary court martial and then lined up and shot. In the end of course, the longer-lasting wisdom and beneficial effect of the Nuremberg prosecutions proved their merit and value.

The debate over which model was to apply took some time to settle, but the Administration gave it low priority though it favored the national model, if for no other reason than it felt it could control it. I also suspect that at the time, namely, between January and December 2003, some in the Administration thought that national proceedings conducted by a “special” tribunal under US control would not only work fast and efficiently, but would also emphasize the brutally repressive nature of that regime over the last 30 years, thus justifying the US invasion in the eyes of American and world public opinion. By analogy to the Eichmann trial in Israel in 1960, which established the existence and extent of the Holocaust, the prosecution of Saddam and his cronies was expected to establish the extent and scope of Saddam’s brutal regime, including the use of chemical weapons against Iran and the Iraqi people, thus implying the possibility of the use of similar weapons which the US claimed was the basis for its invasion.

The US managers of Iraqi post-conflict justice who were at the NSC, Department of Defense (DoD) and Department of Justice (DoJ) failed to see that “special” tribunals have the connotation of exceptional tribunals, which are in violation of international human rights law and thus smack of illegitimacy. Not only the name, but other aspects of the IST’s statute which remained unchanged in the modification brought about in the IHCC in 2005, are in violation of international principles of legality, which Iraqi law also embodies. This applies to the definition of the crimes within the jurisdiction of the tribunal and also to several other provisions of the statute. The statute that US drafters developed was so influenced by American thinking that it had the fingerprints of the foreign occupying power all over it. It also had glaring violations of Iraqi law. This was followed by a decision to establish the IST through the Governing Council, a politically-appointed body by the US – a foreign occupying power in Iraq. Moreover, the selection of judges, investigating judges, and prosecutors by the GC was in violation of Iraqi laws on judicial appointments. All of this cast a dark shadow on the tribunal’s legitimacy and legality, which continued even though a name change and minor modifications occurred in 2005.

Since Iraq was subject to the exclusive control of the Coalition Provisional Authority (CPA) run by US Ambassador Paul Bremer, the IST statute was promulgated by Bremer on December 10, 2003, by CPA Order No. 48, thus confirming the “made in America” label of the institution. Moreover, the IST judges, investigating judges and prosecutors were formally approved by Bremer. The US, acting through the Department of Justice and its Regime Crimes Liaison Office (RCLO), controlled the Tribunal, conducted and directed its investigative activities, collected and stored the evidence, directed its operations, funded it, and had the seat of the Tribunal within the “Green Zone.” In time, the judges, investigating judges, and prosecutors whose salaries were paid by the RCLO moved into the Green Zone where everything was concentrated under US protection. There was little doubt about who owned the IST. Some things changed after 2005, particularly, the Iraqis taking ownership of the process, but the rest remained as it was.

The choice of this post-conflict justice modality was dictated by US political considerations, supported by Iraqi expatriates. It is the right choice, though by no means should it have been limited to a tribunal, and certainly not to one whose statute had so many infirmities. The Administration and its Iraqi expatriate collaborators approached the tribunal’s drafting of the statute without enough knowledge or respect for the Iraqi legal system, and without much experience in international criminal justice precedents. More importantly, they ignored the first lesson of post-conflict justice, namely, to keep politics at a minimum and make sure the legalities are at a maximum. In the IST’s case, it was the reverse.

During the period of time in which I was involved in earlier drafts of the statute, namely 2002-3, and before the IST’s promulgation in December 2003, I had advocated the establishment of a truth commission and a victim compensation scheme. Both I thought would be indispensable support to the prosecutions, and would round out the post-conflict justice process. Taken together, these three modalities would have had synergies and produced reciprocal positive reinforcements.

The national truth commission I had contemplated was to become the rallying point for all Iraqis to join together in producing a record of the Saddam crimes. This would have been a national unifying effort, and it could have avoided turning future prosecutions into a forum for sectarian victimization politics, as it turned out to be. Moreover, experience with international and national prosecutions for international crimes evidences that such trials are not the adequate means by which to record history. A trial is against one or more persons, dealing with a certain number of facts within a limited frame of time, and its purpose is to determine the responsibility of the accused through a fair and impartial process. It cannot be artificially broadened in scope to record historic or contextual facts, or facts unrelated to the nature of the charges brought against the individual. Thus, the Dujail case, a simple, straightforward murder case without external political implications, hardly reveals the many crimes and depredations committed by Saddam and his regime against the Shi’a over the years. Similarly, the forthcoming Halabja case dealing with the use of chemical weapons against the Kurds hardly reveals the extent of the crimes and brutality that the Kurds suffered. However, because of the present Iraqi politics of victimization, there will be no cases involving crimes against the Sunni, thus omitting this category of victims. A truth commission would have filled the gaps left open by selective prosecutions, and avoided the charge that the prosecutions are selective, as they necessarily are. Critics often charge that selectivity is unfair, though in my opinion, selectively charging persons whose conduct objectively warrants prosecution is not inherently unfair.

The victim compensation scheme I proposed was a way to engender public participation and support for the prosecutions by having people come forth, record their histories, and receive some compensation. While this may have provided some measure of comfort to the victims, as well as provided them some economic support that many needed, it would have also provided a wide popular basis in support of prosecutions which now does not exist. Surely if over 100,000 persons would have come forth with their stories, it would have been difficult to criticize the establishment of the tribunal as being American or as “victor’s vengeance” by the Shi’a or the Kurds, as is now the case. Moreover, since these victims would have likely been from all Iraqi religious and sectarian groups, critics of the prosecutions would not have been able to claim that it was set up to satisfy only some of these groups to the exclusion of others, namely, the Sunni.

Since the tribunal’s work was driven by US prosecutors with experience in US federal criminal prosecution, but with little or no experience in international criminal justice, and since the NSC and others in the White House and DoD working on Iraq had other political objectives, these two mechanisms were ignored. This meant that all of post-conflict justice in Iraq was to rest on the tribunal, which would necessarily be limited to a few selected defendants and to a few cases. This left the demand for more prosecutions unsatisfied, history unrecorded, and victims’ thirst for justice to turn into revenge manifested through sectarian violence.

As a result of much effort on my part, including extensive discussions with the judges, investigating judges and prosecutors of the IST during a training session I conducted for them at the International Institute for Higher Studies in Criminal Sciences in Siracusa, Italy, as well as with members of the RCLO, the IST statute was slightly amended. This was not what I had urged in a book published in Arabic for the purposes of helping the Iraqi jurists and politicians make the necessary changes to give the tribunal more legality and legitimacy. The ill-fated name of the IST was changed to the IHCC, some minor amendments were made to some of the statute’s provisions, and there was an overall editing process. The latter was direly needed because, absurd as it may sound, the IST statute was drafted in English and translated into Arabic, and the translation was quite poor. Even more absurd was the provision in the IST statute that the English text would control. How anyone could think that a national tribunal, even a “special” one in a country that had a well-established legal system and legal traditions, could be drafted in a foreign language and then translated into the official domestic language with the foreign text controlling, is beyond hubris.

Among the statute’s shortcomings is the drafter’s confusion as to the role of the investigating judge and prosecutor under Iraqi criminal procedure, which is essentially an inquisitorial model. The American drafters sought to graft the adversary/accusatorial model on the inquisitorial one, producing an unhappy mixture. In an uncanny way, however, that which could have been a serious flaw impeding the effectiveness of the tribunal, turned out not to be the case. The reason was the pragmatic approach of the judges, investigating judges and prosecutors who simply reverted to the practice of criminal law and procedure as they knew it from the Iraqi Code of Criminal Procedure (1971) and the Criminal Code (1969). More surprising was the fact that the defense, even though repeatedly challenging the legitimacy of the tribunal insofar as it was established by a foreign occupying power and subsequently legitimized in form by the re-promulgation of its statute under a law dated October 18, 2005, nonetheless failed to raise many of the issues of legality with the tribunal’s statute, as well as the inconsistencies between procedural provisions in the statute and the 1971 Code of Criminal Procedure. Why this occurred may well be due to the fact that some defense lawyers were not Iraqis, while local counsels may not have been up to the technical task. In any event, the combination of these factors rendered the issue moot in practice. However, legal historians will surely revert to these infirmities to critique the statute and the tribunal’s processes. De facto, the more troublesome technical legal issues with the tribunal were bypassed by actual practice.

Even the modest effort of re-naming the IST as the IHCC and the minor changes in the statute took some time. When the new text was ready for Iraq’s President’s signature, the first prosecution, namely the Dujail case, was already in progress. This case started under the IST and was continued for 30 days because that was the time required for a new law to be published in the Official Gazette in order to enter into effect. When the case resumed, it was under the new IHCC statute. To the best of my knowledge, only totalitarian regimes have changed laws during the course of a trial and applied the new law retroactively. This is in clear violation of the internationally recognized principles of legality, also required by Iraqi law. However, even this glaring violation of the principles of legality was given short shrift by the judges, thus adding another layer of illegitimacy to a process already encumbered by infirmities.

By October of 2005, when the Dujail trial proceedings started, a sectarian civil war was increasing in tempo. The threats to the Court’s personnel and to the defense increased, and in fact several of them were subsequently killed, adding to the complex political contextual backdrop of the tribunal and the prosecutions. Nevertheless, the Iraqi judges, investigating judges, and prosecutors continued to demonstrate courage and commitment. They have since then taken ownership of the process, and this in itself is an accomplishment which has to be applauded.

The highly politicized context in which the IST, later the IHCC began and then proceeded, was not conducive to a detached and sober judgment of the institution and how it worked. Admittedly, the tribunal did not work too well, but that should not have come as a surprise to anyone who follows the history of new legal institutions. The assessment of many observers was also colored by their judgments concerning the legality or advisability of the invasion of Iraq and its subsequent occupation. While a large segment of the IST/IHCC critics would have never been satisfied with the institution, its statute and processes, regardless of whether it was fair and impartial, because of political considerations, another segment of critics seemed to focus exclusively on the technical and legal infirmities of the statute and on the imperfections of its proceedings evidenced throughout the Dujail trial. It is worth mentioning, however, that any similar institution in its inception, particularly during its first trial with an obstreperous defendant like Saddam, would surely face some of the same problems that this trial displayed. Suffice it to recall that Hermann Goering ran away with the proceedings of the IMT in Nuremberg for three days while he was on the stand, and that for nearly four years, Slobodan Milosevič was able to cause periodic havoc during his trial before the ICTY. Those who follow similar trials at the domestic level will remember similar problems, one of which was the Chicago Seven conspiracy trial in 1968 where the defendants literally ran amok of the proceedings for a number of days until one of them was ordered by the judge to be bound and gagged, while sitting in a chair in the courtroom.

Saddam’s antics at the Dujail trial should not have come as a surprise, nor should they in any way be enough to judge the tribunal and its proceedings on the basis of these occurrences. In fact, the leeway given to Saddam is evidence of the Tribunal’s deference to the defense’s rights, even though many other defense rights were sharply curtailed. The point here is not to defend the validity or propriety of the proceedings, but to show the narrow focus of critics who tended to lose sight of the big picture.

Symbolically, the fact that Saddam Hussein and his Ba’athist cronies have been brought to trial for even some of the crimes they committed during their 30-year reign must be considered an achievement. By way of analogy, it was less important for Augusto Pinochet to be extradited from the UK to Spain than to have been held extraditable, just as it was more important for Slobodan Milosevič to have stood for trial for four years than to have been found guilty, had he not died before his trial’s end.

The very importance of the Iraqi proceedings has made the shortcomings of the establishment of the tribunal and its work that much more unfortunate. These shortcomings were the product of errors in judgment that could have been avoided had it not been the lack of knowledge and hubris of the American handlers who also elected to choose Iraqi collaborators to work on this process based on political considerations, as opposed to high-level competence. Above all, these US officials and their Iraqi collaborators lost sight of the deeper and far-reaching significance and implications of these proceedings on the future of the rule of law in Iraq and in the Arab world. Admittedly, all concerned were well-intentioned and acted in good faith, but sometimes this is not enough. The ability to exercise power can never be a substitute for knowledge and wisdom. In the end, the judgment of history will be that this was a missed opportunity to advance international criminal justice and to advance the rule of law in Iraq and in the Arab world.

The mistakes made in light of what was at stake were monumental, and in my judgment, unforgivable because they could have been avoided. The mistake of the US not to have complemented the tribunal with a concurrent truth commission and victim compensation scheme was also significant.

Before all is said and done, however, it is possible that the process may somehow redeem itself, as has already been evidenced in the last stages of the Dujail trial which started to proceed with some regularity and propriety. What is more important is that the Dujail case has not turned Saddam and his cronies into martyrs, though for his followers, other detractors of the tribunal, and opponents of the US invasion and occupation of Iraq, he will always be a martyr.

Regrettably, however, the victims in Iraq do not feel that the present proceedings are meaningful to them. The few prosecutions still contemplated will not record the full extent of the crimes committed by that repressive regime. The foreseeable conviction and death sentence likely to be imposed upon Saddam and some of his cronies will hardly leave a legacy of justice. Like the prosecution, conviction and execution of General Yamashita who was tried in the Philippines in 1946 by an American military commission which was deemed a miscarriage of justice, the IST/IHCC prosecutions will also be marred by a lack of legality and legitimacy.

If nothing else, however, the Iraqi prosecutions will still be a precedent. By analogy, the Leipzig trials in Germany 1923 after WWI were a failure, even though the judges behaved impeccably, and the proceedings were orderly and properly conducted. Nevertheless, the Leipzig trials remained a historic precedent for post-WWII prosecutions, irrespective of the negative substantive outcomes with respect to the defendants on trial, as well as with respect to the thousands who were to be prosecuted and who never were. History has a strange way of legitimizing failures when the need for valid precedent becomes pressing.

M. Cherif Bassiouni is the Distinguished Research Professor of Law and President, International Human Rights Law Institute, DePaul University College of Law.

Lessons from the Saddam Trial
By Michael P. Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 232 (2006).

It is often said that just as courts try cases, so too do cases try courts. As the first trial before the Iraqi High Tribunal, the Dujail Case was the test-run for this novel judicial institution, which I have characterized as an “internationalized domestic tribunal.”

The Iraqi High Tribunal (IHT) joins the War Crimes Chamber of the Court of Bosnia and Herzegovina as the first of a new breed of domestic tribunals that combine elements of international and domestic war crimes courts. Although it sits in Baghdad and its judges are (currently) all Iraqi, the IHT is independent from the ordinary Iraqi court system, it is assisted by international advisers, and its constituent instruments incorporate the definitions of crimes and due process rights contained in the statutes of the existing international war crimes tribunals and stipulate that the precedent of those tribunals are to guide the decisions of the IHT. In the future, internationalized domestic tribunals like the IHT may play an increasingly important role in the growing accountability web for atrocity crimes that also includes the International Criminal Court, the Security Council-created ad hoc war crimes tribunals for the former Yugoslavia and Rwanda, the U.N.-created hybrid war crimes tribunals for Sierra Leone, East Timor, and Cambodia, and ordinary national courts.

In the previous essays, our experts have debated every facet of the Iraqi High Tribunal and Dujail trial -- from the issue of whether it was a mistake to hold the trial in Baghdad to the question of whether the trial met international standards of due process. The general perception from media reports was that the Dujail trial was extremely messy, a bit out of control, and rather unfair. While I would not go as far as some who characterize the Dujail trial as a “judicial train wreck,” clearly, there is much room for improvement.

After the Nuremberg Trial sixty years ago, Chief Prosecutor Robert Jackson reported to President Truman that despite the many errors and missteps that occurred during the proceedings, he was consoled by the fact that the lessons from the WWII war crimes tribunal would be instructive for the future. While the views expressed by our experts have diverged on many issues, we all agree that much can be learned from the way the Dujail trial unfolded, and that these lessons can help improve the way the Iraqi High Tribunal tackles its upcoming trials, as well as the way the international community can help domestic prosecutions of former leaders accused of atrocities in other parts of the world. These concluding essays therefore analyze some of the major lessons learned from the Dujail trial. My own “top ten” list would include the following:

Lesson #1: Further internationalize the Tribunal. Like the Statute of the War Crimes Chamber of the Court of Bosnia and Herzegovina, the IHT Statute provided for the appointment of one or more foreign judges to join the Iraqi judges on the bench, but without explanation none were ever appointed. Such an appointment of a distinguished Arabic-speaking judge from the region -- someone like Egyptian Judge Georgese Abi-Saab who had served with distinction on the Yugoslavia Tribunal during the 1990s -- would greatly promote the perception of the IHT as a fair and competent judicial institution, without sacrificing the essential Iraqi character of the tribunal. In addition, the Statute provides for the appointment of international advisers to assist the judges, prosecutor, and defense team. To date, the identities of the non-US advisers working with the Tribunal have been kept confidential for their protection, but this has led to the misperception that the only foreign advisers are members of the US Department of Justice Regime Crimes Liaison Office, which in turn makes the Tribunal appear to be an American-controlled enterprise. In future trials, more advisors selected by respected NGOs such as the International Bar Association should be recruited to assist the Tribunal, and their contribution (if not their identities) needs to be made public.

Lesson #2: Ensure visible gender representation on the Tribunal. In recognition of the fact that many of the victims of the atrocities of the Ba’ath regime were women and that women jurists would bring important perspectives to the gender-crimes that the Tribunal would be prosecuting, several women were appointed as IHT judges. But there was no mention of a female judge serving as a member of the IHT bench during the Dujail trial. The IHT was designed not just to prosecute the leaders of the Ba’athist regime, but also to serve as a model for the newly emerging Iraqi judicial system by employing international rules for the protection of the rights of the defendant and standards of due process. It should also serve as a model of gender equality, by appointing women to serve a visible role as judges in future trials. At a very minimum, in the future the IHT should disclose the gender representation of each trial bench, along with other basic information about the qualifications and experience of the judges (but not put them at risk by disclosing their identities). Just as it is important that prominent members of the new Iraqi government be women, so too should women be seen playing a prominent role in the Iraqi judiciary, beginning with the IHT.

Lesson #3: Appoint a sufficient number of alternate judges. While the Nuremberg Tribunal had four alternate judges, the Yugoslavia Tribunal had none, which created a huge problem when the judge presiding over the Milosevic case died of a brain tumor half way through the trial. The IHT split the difference and appointed two alternate judges. But that number turned out to be inadequate, as three judges had to be replaced during the Dujail trial -- one resigned when he found out that a relative had been a victim at Dujail, one resigned under pressure for not being tough enough with the Defendants, and one resigned when the de-Ba’athification Commission announced that he was under investigation for past membership in the Ba’ath Party. Judge Ra’uf, who replaced the first Presiding Judge on day five of the trial, had not even been in the courtroom for the first four trial sessions, creating concerns about the fairness of the proceedings. Given the length and importance of the upcoming trials, there should be at least three alternate judges for every case, who sit in the courtroom throughout the trial, ready to step in at a moment’s notice if the need arises. When that event occurs, this will enable the trial to continue without delay and without the perception of unfairness.

Lesson #4: Guarantee better security. The international community has recognized that when they are practicable, domestic trials have many inherent advantages over international trials. Indeed, the International Criminal Court’s “complementarity” provisions are founded on that assumption. The Dujail case was certainly not the first trial in history conducted in a dangerous climate, and the security situation in Baghdad was not so grave to justify relocation of the trial outside of Iraq, with all the disadvantages that would have entailed. But when Defense Counsel initially rejected the offer of US and Iraqi security, the apparent attitude of the US and Iraqi government could be summed up as: “Fine, it’s your funeral.” With the assassination of two defense lawyers during the first week of the trial, it became obvious that that was a completely inadequate response. The deal that was worked out in October 2005 for the Defense Counsel to use IHT funds to arrange for their own, hand-selected, personal security guards, and to move their families into the Green Zone or out of Iraq, was an appropriate compromise. But the assassination in the closing days of the trial of a third Defense Lawyer, who had elected not to have his security guards at his house the morning of the attack, indicates that even more must be done. For the IHT process to work, one way or another the Defense team has to be protected to the same extent as the judges, prosecutors and witnesses – whether they desire such protection or not. In addition, there should be a high level international investigation into who committed the three assassinations, similar to that recently conducted with respect to the assassination of the Prime Minister of Lebanon.

Lesson #5: Resolve pre-trial issues as they arise. The Defense made a host of pre-trial motions that the Tribunal merely filed away until its final judgment. Such motions challenged everything from the legitimacy of the tribunal to the bias of the chief judge, from the physical mistreatment of the defendants to the expulsion of the defense lawyers. Rather than dispose of these issues in written reasoned opinions at the beginning of the trial (following the precedent of the international tribunals), the IHT decided to wait to deal with them until the end of the trial, leading to the misperception that the Tribunal did not take these issues seriously. While the IHT’s approach did not violate international fair trial standards, in future trials the IHT should make it a practice to issue written opinions addressing such issues as they arise, consistent with the normal practice of Iraqi courts and the international war crimes tribunals.

Lesson #6: Keep the trial short. In an attempt to avoid one of the greatest blunders of the Milosevic trial, the IHT began with an uncomplicated case that focused on a single atrocity (the 1982 Dujail incident), thereby providing “a snapshot of evil” rather than trying to prove the entire history of the crimes committed by the Ba’ath Regime in a single mega-case. With its narrow focus, the Dujail trial was designed to last about a month, but dragged on for eight. Many of the delays can be attributed to official holidays, security problems, defense boycotts, and difficulties locating witnesses. But the length of the resulting delays seemed disproportionate to these challenges, and many of the recesses seemed to be related to the personal predilections of the Presiding Judge, who made frequent trips home to Kurdistan during the trial. The future IHT trials, which will be far more expansive in scope than the Dujail trial, need to move along at a much faster pace, with procedural matters handled before the trial begins or in the margins of the trial sessions. Any necessary recesses should be at most a few days long, rather than lasting several weeks, and trial proceedings should normally be conducted eight hours a day, five days a week.

Lesson #7: Do not permit the defendant to cross-examine witnesses after his lawyer has done so. Consistent with international law and in an effort to decrease the possibility that the defendants would attempt to hijack the trial, in August 2005 the democratically elected Iraqi National Legislature amended the IHT Statute to make clear that the defendants had to act through a lawyer in the courtroom – and Saddam and the other seven defendants in the Dujail trial were represented by superb lawyers, including former U.S. Attorney General Ramsey Clark. But both the first and second presiding judges -- Rizgar Amin and Ra’uf Abdul Rahman -- inexplicably circumvented and undermined that decision by ruling that Saddam and the other defendants could conduct their own cross-examinations of witnesses and address the court each day after their lawyers had done so. This opened the door for Saddam Hussein to brow-beat witnesses, make disrespectful statements about the presiding judges and prosecutors, and to frequently make speeches inciting violence against U.S. military forces and the new Iraqi government -- leading to widespread criticism that the judges were losing the battle of the wills with Saddam. In the future, the defendants should only be allowed to speak in court at the end of the trial when they take the stand to testify in their own defense. At all other times, it is their lawyers who should do all the talking.

Lesson #8: Appoint distinguished stand-by counsel. As anticipated, the defense lawyers were not the model of decorum in this trial. At times their disrespectful and disruptive conduct resulted in their expulsion, and at other times they boycotted the proceedings. In these instances, the trial continued on with stand-by-counsel -- public defenders which were appointed at the beginning of the trial by the IHT, and trained and assisted by international advisors. The use of such stand-by counsel had been successfully employed at the Yugoslavia Tribunal, Rwanda Tribunal, and Special Court for Sierra Leone. The very existence of such stand-by public defenders can deter misconduct by the Defense, since the defense lawyers know they can be replaced if necessary at a moments notice. But the public must be convinced that the stand-by Counsel are up to the challenge. The IHT can accomplish this by better explaining the role of the stand-by counsel, releasing biographic information about their qualifications and experience, and by offering them the same type of extensive international training as was provided to the IHT judges and prosecutors.

Lesson #9: Take action to deter disruptions. Trying former leaders is always a messy affair, especially when a decision has been made to televise the proceedings gavel-to-gavel, and the Defendants’ avowed intention is to disrupt the trial, distract public attention from the evidence against them, and turn the televised trial into a political stage. To ensure decorum and protect the integrity of the process, the IHT judges should be prepared to take a number of steps, which have been undertaken successfully by other Tribunals. As mentioned above, the disruptive behavior of the defendants and their lawyers can be minimized by requiring the defendants to act through counsel and by appointing expert public defenders who can step in place of the defendants’ chosen lawyers when necessary. If defendants insist on acting disruptively in the courtroom (such as jumping out of their seat and shouting profanities at the bench), they should be placed in a sound-proof booth (like Adolf Eichmann had been in his trial in Jerusalem) or in remote locations tied to the trial by two-way video. Because Counsel of record must be members of the Iraqi Bar, the Tribunal should not hesitate to hold them in contempt of court and subject them to appropriate disciplinary sanctions for conduct that would merit such action in an ordinary court. In such cases, the Presiding Judge needs to dispassionately explain in open court why the steps taken were warranted.

Lesson #10: Expand the Tribunal’s Public Outreach. As evidenced by the decision to televise the proceedings, the IHT was designed in part to serve an educative function. But the procedural decisions of the IHT were usually shrouded in mystery, as little attempt was made to clarify the many public misconceptions as they arose during the Dujail trial. If the Iraqi people are ever going to feel ownership over the IHT proceedings, and if the international community is ever going to accept the Tribunal as legitimate and fair, they need to fully understand what is going on in the courtroom, and the message should not have to be filtered through the press. To remedy this problem in the future, the Presiding Judge should explain procedural decisions in open court, even if this is not traditionally done in Iraqi trials. In addition, the IHT should appoint one of its judges to act as Press Officer (a role eventually undertaken by Chief Investigating Judge Ra’id). The IHT Press Officer should issue an official statement every day of the trial (in both Arabic and English), explaining what went on that day and answering the questions that the public and press are likely to have about the day’s proceedings. Such official press statements, together with trial exhibits and transcripts, should be posted (in both Arabic and English) on the Tribunal’s website on a daily basis for world-wide viewing.

The Trials of Sadaam Hussein
Lessons Learned Thus Far
by David M. Crane

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 238 (2006).

As the closing arguments by the defense echo about the chamber at the Iraqi High Tribunal in Baghdad, what have we learned thus far related to the trials of Sadaam Hussein, former President and ruling tyrant of Iraq, and his henchmen?

First, perception trumps reality. Born of suspicion, the Iraqi High Tribunal moved forward in seeking a type of just end to a tragic episode in the decades long reign of terror. It was a tough first round as the trial wound its way around practical and legal landmines all under the shadow of suspicion that this was a “fixed trial”, a “done deal”. The tragedy of all this is that it is probably is not, but the doubt lingers in the corners that somehow the United States is pulling the legal and procedural strings to ensure the appropriate result. Whether this is true remains to be seen. The perception by the international community that it is a show trial certainly trumps the reality that it is not a done deal and that the statute and rules will permit a fair trial. History will tell. I am skeptical.

Second, tyrants need to be faced down. Despite the way the court was created, Sadaam Hussein and his co-defendants are on trial for war crimes and crimes against humanity in an Iraqi domestic court being held accountable for what he has done to the people of the region. The world is being shown the facts about what took place in Iraq. There is an accounting and that is a step in the right direction in facing down the beast of impunity that continues to feed around the periphery of civilization.

Third, peace first--then justice. In the situation where war continues to rage around the region, particularly a guerilla war, justice should wait in the wings until there is a stable and relatively peaceful society. In Iraq they should have waited a year or so before going to trial. They had Hussein and his henchmen in custody. The significance and public impact of the trial is lessened as the society in which the victims and their families struggle daily for a sense of normalcy. The wave of sectarian violence may wash away any good that is done at the trial itself. The United States and Iraq jumped the gun, which raises the specter of a show trial.

Fourth, security is important. Part in parcel to peace first, justice second, is the issue of a secure environment to hold the trial. The security problems faced by all of the brave men and women at the Iraqi High Tribunal are overwhelming and are a detractor in ensuring a fair trial. The sober and deliberate consideration of law and fact so fundamental to a fair trial is hampered when officers of the court are murdered and the threat of future violence remains. Everyone is looking over their shoulder and thinking who is next. The focus should be on the law and a fair trial rather than whether one will live to the end of the day.

Fifth, a death sentence makes a martyr. This is the first in a series of trials. The result could be a finding of guilty and a sentence of death. If Hussein and his co-defendants are executed they could become martyrs rather than convicted and fairly judged war criminals. Because there is the perception of unfairness, their execution only exacerbates the problem.

It is always dangerous to play “armchair quarterback” in the extreme circumstances of conducting a war crimes trial in the midst of an ongoing conflict. However, the five lessons learned above beg comment. The stakes are too high, the legacy too important to allow passive observation. The trials will move forward, attended to by brave and heroic jurists, with the outcome certain, the results set. It is unfortunate that a mega-murderer such as Sadaam Hussein will be tried questionably and then dies a martyr.

David M. Crane is a Professor at Syracuse University College of Law and the Former founding Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone, 2002-2005.

Lessons from Al Dujail: the First, but not Final, IHT Trial
By Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 242 (2006).

As the trial phase in the Al Dujail moves towards its imminent conclusion it is appropriate to reflect on the lessons learned. There are two important caveats to any observations made at this point of the proceedings: 1) for western observers, the Arabic official language has obscured the actual interchanges between the bench and the counsel, as well as the testimony of witnesses and the active participation of the defendants, and 2) prior to issuance of a detailed legal judgment, it is somewhat premature to engage in finely tuned legal analysis of the ultimate adequacy of the overall trial because its outcome and the legal rationale for its decisions yet lies in the future. Just as the ad hoc tribunals made many adjustments to rules, procedures, and trial practices as they experienced the uncertainties inherent in conducting such complex and emotional trials, it is reasonable to expect that the IHT judges, prosecutors, and defense attorneys have been keen observers of this trial and will adjust their practice based on their own conclusions. Many of the admonitions and perceptions related to this process may well turn out to be unfounded based on the actual detailed record in light of the ultimate judgment and judicial opinion. While I concur with a number of the observations already presented and will not rehash points already raised, I’d add the following comments.

Lesson #1: Keep the Endstate in mind
The very fact that there is a structure applying international law in combination with domestic norms is a monumental development in this region. The Iraqis who worked to create the IHT as an autonomous structure within the Iraqi judiciary, and those who now serve in its various offices share an aspiration that it will serve as the doorway through which international norms permeate the fabric of Iraqi society. The essence of this trial process is to bring justice based on law to elites who previously acted as though they WERE the law. Each of the witnesses who testified of the suffering in Al-Dujail or the now grown men who talked of being imprisoned as children spoke on behalf of thousands of victims, which is why their testimony was so gripping for average citizens. The images of once mighty Ba’athist officials being subdued to the authority of the law in the person of a judge and established procedures has left an indelible imprint on this culture and on these people. This is a trial based on evidence and testimony and law, not a sham or fabrication. The IHT process stands in sharp contrast to the fact that 148 average citizens of Dujail either died while being tortured or were sentenced as a group to die based on what were, according to defense testimony, “trials” conducted by one defense attorney and allegedly lasting sixteen days.

Lesson #2: The Importance of the Tribunal Defense Office
The Tribunal Defense Office has had an important and often overlooked effect in securing the rights of the defendants in this process. As the retained counsel have engaged in courtroom demeanor that would be inexcusable in most courtrooms around the world, the bench has generally accorded them wide latitude, and has often overlooked defense violations of the Rules of Procedure. Given the dignity of the proceedings and the significance of the judicial process, no court should be held captive to the capricious demands of defense counsel, particularly in matters that are often unrelated to the presentation and consideration of actual evidence. The IHT Defense office has been fully prepared to step in on those occasions when retained counsel have refused to come to court, or have been ejected by the bench for inappropriate and disrespectful courtroom conduct. Just like the amici curiae in the Milosevic case, the IHT Defense Office has served as a necessary backstop to give effect to the procedural rights of these accused. They have conducted cross examinations, and at the last trial session were asked by the bench to be prepared to conduct closing arguments if retained defense counsel are unprepared. In future trials, it may well become axiomatic that the staffing and funding of the Defense Office rises in direct proportion to the proximity of the trials and the overall security environment. In this context, those lawyers have striven to protect the rights of these defendants.

Lesson #3: Trials Happen in Court not in the TV Studio
The very essence of a fair trial is that the judgment and sentence are based on the application of established law to facts and inferences drawn from the record of what transpired in court and on the record. The media dimension of this process has been both predictable and tragic. The initial Iraqi decision to televise the trial was a courageous demonstration of its transparency and its intent to serve the people. For the western world, the media coverage of the trial has focused on no more than a few minutes of each day’s events and given scant attention or analysis of the hours of trial testimony. This has permitted wild misstatements of what is happening in the courtroom and in some circles held the IHT hostage to preconceived notions. The IHT press outreach to correct errant impressions has thus far been spotty and its goal of creating a useful website as an authoritative source for press statements and official documents remains unfulfilled. The defense team has attempted to raise a number of legal arguments in the media that have either been omitted in the actual trial proceedings or very scantily developed in arguments. The erratic conduct by the retained defense counsel has also undercut their effectiveness in raising their legal arguments, which in turn has prompted them to use media outlets as an alternative for the vigorous in court representation that their clients expected when they agreed to pay them. In retrospect, the written opinions will serve a critical purpose in illuminating the relevant facts drawn from the referral file and trial testimony, in addition to the vital application of the relevant law to those facts.

Lesson #4: The Merger of Iraqi Procedure & Law with International Norms
Like any of the nations that have ratified the ICC Statute and are incorporating international law into domestic practice, the IHT has the character of a domestic court applying domestic law and procedure in conjunction with substantive international law when appropriate. This aspect of the trial is important because it has resulted in a process that is far from the American controlled process panned by IHT naysayers. Any Arabic speaker who wishes to watch the lengthy exchanges among witnesses, defendants, counsel and judges has seen Iraqi judges and lawyers subject to the professional standards of their craft. While on the one hand, this has resulted in rulings from the bench rather than the detailed written pretrial motions common in other practice, the IHT has been recognizable to the people as reflective of their experience in courtrooms around this country. In addition, the trial testimony that some Iraqi defense lawyers conspired to fabricate testimony and threaten witnesses and their families may subject them to sanctions in their domestic system in a manner that would not be feasible in a purely international ad hoc trial. The essentially Iraqi character of the proceedings also explains Judge Rizgar’s early decision to permit each defendant to cross examine witnesses in addition to that of their counsel (which practice was continued by Judge Ra’ouf). Judge Ra’ouf ). That practice carried over from domestic practice and has allowed each of the defendants at times to become active participants in the presentation of their perspectives. The practice of allowing both defense attorneys and the defendants to raise defense perspectives related to witnesses and evidence (sometimes for hours) is a unique feature of this trial that should serve to enhance its truth-seeking function. While the world has seen Saddam use that opportunity for illegitimate exhortation to the insurgents outside the courtroom, the fact is that all of the defendants have raised some of the most effective points made in their own defense. While their lawyers have repeatedly stormed out in protest or defiance of the bench, the defendants have been able to participate actively in their own defense. Conversely, when the defendants have chosen to stay out of the trial, they have been in holding cells watching the trial on closed circuit TV similar to the practice in the ad hoc international tribunals.

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July 12th, 2006

Announcement

English Translations of the IHT's May 15, 2006 Charging Instruments (Indictments) for the Dujail Trial are now available on the Grotian Moment website. To view them, click on the button on the Left.

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July 11th, 2006

Issue # 42: The Defense Boycott of the Defense Closing Arguments

by Michael Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 149 (2006).

The title of this issue seems at first glance like a misprint or an oxymoron. It is, nevertheless, the most recent development in what has been to date a trial process packed with surprises and interesting legal developments. From the outset, the defense strategy has been one of obstruction and obfuscation, as the lead attorney for Saddam Hussein indirectly confirmed in a recent New York Times interview. The erratic conduct by the defense team has been a major factor in disrupting the procedural predictability and overall dignity of the trial proceedings in the Dujail trial. In my personal opinion, the pronouncement by members of the defense team that they will not present closing arguments as the Dujail case nears its completion are an abdication of their ethical duty to diligently defend their clients. The defense team has stated that the boycott is a response to the June 21, 2006 murder of Khamis al-Obeidi, an Iraqi who was one of the team representing Saddam and his half brother Barzan al-Tikriti. The death of a third member of the defense team is a genuine tragedy, both in the symbolic sense that it represents a direct blow against the restoration of the rule of law and because it was completely avoidable. Prior to the onset of trial, and before the two previous murders, Tribunal officials worked with each member of the defense team to implement appropriate security arrangements. The members of the defense team turned down offers to live with their families in the security of the Green Zone, and chose the form of security that they preferred. The overall security environment has created a range of logistical, practical, and legal problems in the conduct of the prosecution and defense cases. Apart from the murder of defense attorneys, the defense has been unable to specify causal linkages that show a relationship between the challenges inherent in conducting such a high profile trial in the current environment and the conduct of the defense. In fact, Saddam Hussein attempted to take advantage of the security context by interspersing illegitimate exhortation to the insurgents outside the courtroom in the midst of appropriate illustration of defense perspectives. Overcoming these obstacles, approximately one hundred witnesses testified during the proceedings.

Press accounts of the recent letter to the bench announcing the defense boycott of the defense closing arguments indicate that it incorrectly asserts that the IHT lacks “the lawful proceedings that are well established in international and Iraqi law.” The Statute and its implementing Rules of Procedure provide for the full range of individual rights reflected in acknowledged international standards for fair trial proceedings. Despite the challenges posed by the security environment, the defense has had every opportunity to present a fair and vigorous defense for those charged. The longest delay in the entire trial was granted to allow the defense team additional time to prepare for the beginning of the trial, despite the fact that the defense team received the investigative materials two months before trial was scheduled to begin. Significantly, the defense called almost precisely twice the number of witnesses as the prosecution, even though the bench cut short the presentation of a number of other witnesses deemed to offer testimony of redundant and limited probative value. If the defense has an articulable basis for concluding that the security environment has in some manner affected a procedurally fair process, the closing arguments would be precisely the appropriate forum to detail the legal and factual arguments forming the grounds that mitigate towards the innocence of their clients.

Rather than taking the occasion to state their legal case in public and on the record, the defense team has chosen to pack its portfolios and stay home. Given the obligation to represent their clients with vigor and legal precision, it was reasonable for Tribunal officials to presume at the beginning of trial that the defense team would participate in good faith in the judicial process. The defense team has, nonetheless sought to pierce the decorum in open court in ways that are unprecedented for a trial of this magnitude. The IHT Defense Office has worked to ameliorate the effects of the defense team’s demonstrated disregard for the proceedings and their own ethical obligations. The defense closing arguments will proceed after a delay necessitated by the need for court-appointed counsel to prepare. The conduct of the defense in this first trial presents a troubling portent of even greater difficulties in the more complex and lengthy trials that lie ahead. If the defense simply refuses to engage in good faith adjudications based on the evidence and the legal evaluation of that evidence, there will be an inevitable corrosive effect on the procedural guarantees built into the IHT. Such conduct in future trials endangers the effort to demonstrate a fair and transparent trial process that exemplifies the rule of law in accordance with international standards for the Iraqi people and the wider regional audience.

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June 28th, 2006

Issue #41: Did the Dujail Trial Meet International Standards of Due Process?

While Far from Perfect, the Saddam Trial Was Not Fundamentally Unfair
By Michael P. Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 162 (2006).

Introduction

According to an old adage, where one sits determines where one stands. As someone who helped train the Iraqi High Tribunal’s judges, I acknowledge that my writing might naturally reflect an inclination to view the Tribunal sympathetically. In contrast, the writing of many critics of the Tribunal appears shaped by a desire to discredit the institution at every turn as a way of saying: “See, we told you so; Saddam should have been tried by an international tribunal, not an Iraqi court!”

We should not be surprised that expert commentators would have such divergent perceptions of the job the Iraqi High Tribunal has done in its first trial. After all, every major war crimes trial, from the Nazis at Nuremberg to Slobodan Milosevic at The Hague, has been vehemently lambasted as unfair by critics. For an eye-opening example, one need look no further than Senator Robert Taft’s 1946 derisive remarks about the (now venerated) Nuremberg Tribunal, which were reproduced in John F. Kennedy’s Pulitzer Prize-winning 1956 book, “Profiles of Courage.”

Unique Challenges

Moreover, due to the defense tactics in this case, the challenge of ensuring a fair trial while at the same time maintaining order in the courtroom was enormously daunting. Saddam’s chief lawyer, Khalil al-Dulaimi, gave an interview to the New York Times a few days ago in which he explained the unusual defense strategy. According to al-Dulaimi, the defense was convinced that Saddam would be found guilty and that Saddam’s best chance was to use the proceedings to inflame the insurgency and to stretch the trial out as long as possible, so that in the end the United States would agree to set Saddam free in return for his help in restoring peace to Iraq. See Edward Wong, “Hussein Thinks He Will Get Death Penalty but Sees Escape Hatch, His Lawyer Says,” New York Times, June 25, 2006, at 6.

What would even the most distinguished American jurist do, if faced with a defendant and his lawyers whose trial strategy was to be as disruptive as possible, provoke the judge at every opportunity, and continuously attempt to turn the trial into political theatre? For an answer, one need only turn to the recent proceedings against accused al-Qaeda terrorist Zacarias Moussaoui, who was thrown out of court by U.S. District Judge Leonie Brinkema four times in one day, and then temporarily banned from returning to court, due to his disruptive and belligerent outbursts. Newspapers reported that the consensus of legal experts was that Judge Brinkema acted appropriately; in contrast, critics of the Iraqi High Tribunal decried that Judge Ra’ouf Abdel-Rhaman violated international fair trial standards when he did the same exact thing.

Harmless Error

What was truly amazing about the Saddam Trial is that it was televised gavel-to-gavel in Iraq, and the international media broadcast daily highlights with translations. This means that observers around the world had the chance to watch justice unfold over 35 trial days in Baghdad, warts and all. It is worth stressing that few countries in the world have had the courage to go to such lengths to ensure transparency of judicial proceedings, including the U.S. Federal Courts which continue to this day to ban cameras from criminal trials. True, this was among the messiest trials in history, and many mistakes were made for all to see – and for TV commentators including many of our expert Bloggers to dissect. But as the United States Supreme Court has often said: “We do not live in a perfect world, and a criminal defendant is not guaranteed a perfect trial, just a fair one.” Bruton v. United States, 391 U.S. 123 (1968).

In assessing whether the Iraqi High Tribunal’s errors and missteps resulted in a miscarriage of justice, it is significant that the Dujail trial (much like the Nuremberg trial) turned out to be based almost entirely on the Ba’ath Regime’s own documents, whose authenticity was proven in court and confirmed by the statements of Saddam Hussein in his infamous “I am responsible” testimony in court on March 1, 2006. If Saddam is convicted on the strength of these documents, even an American court would likely dismiss Professor Kevin Jon Heller’s catalogue of alleged judicial blunders (see his essay below) as “harmless error.”

Not an American Court

But we also have to keep in mind that this is not an American court. Although the Iraqi High Tribunal Statute and Rules adopt the fundamental due process safeguards enumerated in Article 14 of the Covenant on Civil and Political Rights, they also make clear that the Tribunal is to be governed by Iraqi Criminal Procedure, which is based on the civil law model prevalent in the Middle East. While we may not be accustomed to a system that does not provide for disposition of preliminary motions until the final Judgment, that allows the defendant to conduct cross examination along side his lawyer, or that issues a detailed charging instrument at the end of the prosecution’s case -- that does not mean the IHT process violates international fair trial standards.

Take, for example, Professor Heller’s assertion that the trial is unfair because the Tribunal’s Statute does not require the Court to find Saddam and his co-defendants guilty “beyond a reasonable doubt.” Instead, Article 19 of the IHT’s Statute merely provides that “the accused is presumed innocent until proven guilty before the Court.” Although the Statute does not spell out the test for proving guilt, the Statute must be read together with the Iraqi Criminal Code and practice, under which a Judge must be “satisfied of a defendant’s guilt” -- the traditional standard which civil law judicial systems (like France and Holland) employ, and a phrase that the IHT judges told me is functionally equivalent to the American “beyond reasonable doubt standard.” It should also be noted here that the U.S. Supreme Court has refused to define what “beyond reasonable doubt” means and has held that American courts do not have to provide any definition of this amorphous phrase in their instructions to a jury in a criminal case. See Victor v. Nebraska, 511 U.S. 1 (1994).

Moreover, “different” does not always mean “worse.” Indeed, in one important respect, the Iraqi High Tribunal improves upon the American judicial model: The IHT Statute requires the Court to produce a written reasoned opinion, explaining in detail the factual and legal basis of its judgment – something that is not required of an American jury verdict which emerges from a proverbial “black box.”

Allegations Based on Misleading Press Reports

Reading Professor Heller’s essay, I was reminded of how inadequate and at times misleading the reporting has been about this trial in the major newspapers. For trial details, I watch the daily proceedings via Court TV’s Webcast, I read English translations of Middle Eastern newspapers which devote a great deal of space to the proceedings, and as a reality check, I talk to the Department of Justice trial observers in Baghdad. Here are but a few examples of Professor Heller’s factual misconceptions:

-- Professor Heller is critical of Judge Ra’ouf Abdel-Rahman’s decision to eject a number of defense attorneys for disruptive conduct, and to replace them with attorneys from the Tribunal’s Defense Office, who Heller asserts were incompetent and unprepared. In fact, in January of 2006 the Court ejected only one attorney, after he screamed at the court and insulted the Chief Judge, and one defendant, Barzan Al-Tikriti, who called the Court “the daughter of a whore.” The remaining defense attorneys, over Judge Ra’ouf’s orders, walked out of Court, abandoning their clients (in a death penalty case) without excuse, and refused to return unless the Court acceded to a set of unreasonable demands including recognizing Saddam Hussein as the President of Iraq. During their boycott, Judge Ra’ouf continued the proceedings with IHT Public Defenders. Not only did the Public Defenders vigorously cross examine witnesses (some press reports said they did a far better job than the retained lawyers), but they were assisted by an international law adviser at all times. Moreover, these Public Defenders were intimately familiar with the trial as they had sat in court every day, reviewed the investigative file before trial began, witnessed the proceedings as they unfolded and remained prepared to step into court at a moment’s notice should the privately retained defense attorneys prove unable or unwilling to defend the interests of their clients. There was no preordained decision to eject the privately retained attorneys from the Court and to replace them with IHT Public Defenders, as Professor Heller asserts. The privately retained defense attorneys voluntarily walked out of the courtroom and the Court did what was necessary to keep the trial on track and at the same time protect the defendants—by immediately appointing competent counsel who were prepared to defend their clients in full accordance with Iraqi and international law.

-- Professor Heller writes: “The Court refused to allow the defense to enter a video that allegedly showed the Chief Prosecutor [Ja’afar"> at a 2004 ceremony in Dujail with several individuals who later became witnesses for the prosecution.” In fact, the Tribunal did permit the Defense to play this video in court and allowed three defense witnesses to testify that the man in the video offered them money to testify against Saddam. After this video was shown, the Prosecution brought the person who was actually shown on the tape, which the defense team had alleged was Prosecutor Ja’afar, into open court. Everyone present, including the defense attorneys, immediately grasped that, despite some resemblance, Prosecutor Ja’afar was not the person shown on this video tape. Those following the proceedings closely got to see the defense counsel profusely apologizing to the Court for this misunderstanding, acknowledging that the testimony that Ja’afar had tried to bribe the witnesses was clearly false.

-- As a final example of the disconnect between reporting and reality that underlies Professor Heller’s conclusions, Professor Heller criticizes Judge Ra’ouf for arresting three defense witnesses for perjury after they testified that they personally knew some of the 1984 Dujail Trial execution victims, who they claimed were actually still alive and well in Iraq. Heller adds that two of these witnesses, who have since fled Iraq, told the Associated Press that they were beaten in detention to make them confess that they had lied to the Court. Heller fails to point out, however, that during these witnesses’ testimony, Judge Ra’ouf asked the three whether they could (without the aid of a written piece of paper which they had carried into the witness box) state the names of any of the alleged victims who had not actually been executed. When the witnesses could not, Judge Ra’ouf asked them whether they could write the names on a piece of paper which was separate from the one they carried into court. When the witnesses could not do that either, Judge Ra’ouf asked them to see the list of names which they each were carrying. When presented with the lists, Judge Ra’ouf asked the witnesses whether the names on the list were written in their own hand. All three witnesses admitted in open court that another source had given them the lists of names. They were imprisoned for perjury after, not before, they freely made this admission.

A more thorough rebuttal of Professor Heller’s numerous contentions is warranted but space limitations prevent me from doing that here. Suffice it to say, the trial is not over and much (including closing arguments, judgment, and appeal) must occur before one can conclusively opine whether the Dujail trial met international standards. But just as the IHT must be fair, so too must we be fair in judging the Court.

Comparing the Trial to International Standards of Due Process
By Kevin Jon Heller

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 155 (2006).

As Saddam’s trial draws to a close – and following the murder of a third defense attorney – it seems appropriate to catalogue the many ways in which the trial has failed to satisfy international standards of due process. Those failures are particularly unfortunate in light of the trial’s historic importance; given that the evidence against Saddam is overwhelming, I am firmly convinced that a perfectly fair trial would be no less likely to result in a conviction.

Iraq is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which guarantees criminal defendants “a fair and public hearing by a competent, independent and impartial tribunal established by law.” According to Article 14 of the Covenant – which is paralleled, in large part, by Article 19 of the IHT Statute – a fair trial requires a defendant be provided, at a minimum, with the following rights:

• To be informed promptly and in detail… of the nature and cause of the charge against him;

• To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing…

• To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing…

• To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

As the discussion below demonstrates, Saddam’s trial cannot be considered fair under Article 14. (Note that some of the points discussed below focus on the IHT in general. Although it is highly likely that most, if not all, of the due-process violations involved Saddam or his co-defendants, not enough information exists to make that claim categorically.)

Uncounseled interrogations.

U.S. investigators interrogated at least thirty high-value detainees, including most of the senior members of Saddam’s regime, before the IHT became operational in December, 2004. At the time of those interrogations, the detainees were not represented by counsel. Although it appears that none of the uncounseled statements made by the detainees were introduced as evidence during Saddam’s trial, it is impossible to know whether those statements led to incriminating evidence – the proverbial fruit of the poisonous tree. Indeed, the Court refused to guarantee Human Rights Watch that it would exclude incriminating evidence so obtained.

Uncounseled court appearances.

Saddam was not represented by counsel during his arraignment, where he was informed of the general accusations against him (though not the formal charges in the Dujail case).

Interference with the attorney-client relationship.

• When the Dujail defendants were questioned by the investigative judge, their attorneys were given no advance notice of the questioning. On most occasions, the attorneys were not permitted to meet with their clients until after the questioning was completed.

• The most senior attorneys at Saddam’s trial were not allowed to visit their clients until after the trial started.

• Saddam’s attorneys were prevented from meeting with him for nearly a month after they were ejected from the courtroom in January, 2006.

• The attorneys for Saddam and his co-defendants were not allowed to meet with their clients in private for nearly two months during trial, including the entirety of the defense case.

• All meetings between defense attorneys and the Dujail defendants were conducted under audio and visual surveillance, and American officials reviewed all the materials the attorneys brought into the visiting room.

• On more than one occasion, a U.S official with knowledge of Arabic was present in the interview room when a defense attorney was conferring with his client.

Appointment of inadequate defense counsel and replacement counsel.

Two of Saddam’s co-defendants have been represented by appointed counsel from the Tribunal’s Defense Office. Those attorneys, who received only one or two training sessions in international criminal law prior to beginning work, have been completely incompetent: according to Human Rights Watch, they “were completely passive in court and did not ask a single question of witnesses, at any session between October 19, 2005, and January 29, 2006.” In addition, one of the attorneys told Human Rights Watch in October 2005 that he had never met with his client, even though he had been appointed a month earlier.

The inadequacy of the attorneys working at the Defense Office also harmed the other defendants. After Chief Judge Abdel-Rahman ejected a number of defense attorneys for disruptive conduct, including one of Saddam’s attorneys, the Court immediately replaced them – over the vehement protests of the defendants – with four new attorneys from the Defense Office. The Court appears to have decided to replace the defendants’ chosen attorneys in advance; according to Human Rights Watch, the replacement counsel were waiting in a room next to the courtroom the whole time. Those attorneys proved little better than their appointed counterparts; during their tenure, they failed to cross-examine at least two prosecution witnesses and conducted sub-standard cross-examinations of the witnesses they did question.

Preventing the defense from monitoring the investigation.

Defense attorneys were not permitted to be present when the investigative judge interviewed witnesses and collected evidence, even though Article 57 of the Iraqi Code of Criminal Procedure permits their presence unless the investigative judge enters into the record an explanation of why counsel’s presence was not permitted. No such explanation has ever been given.

The absence of defense attorneys during the investigative stage is particularly troubling, because Iraqi law provides that the dossier prepared by the investigative judge constitutes substantive evidence of a defendant’s guilt. In this respect, the IHT lags behind international criminal law generally: the ICTY specifically held in Kordic and Cerkez that the wholesale admission of a dossier is inconsistent with the right to a fair trial; instead, the trial court must examine each category of evidence in the dossier, sensitive to the need to guarantee the evidence’s authenticity and to the dangers of admitting evidence not tested by cross-examination.

Limiting defense access to the evidence.

Rule 40 of the IHT’s Rules of Procedure and Evidence specifically provides that the defense is permitted “to inspect any books, documents, photographs and acquire these things, which are material to the preparation of the Defence, and also inspect any books, categories of, or specific documents, photographs and tangible objects in the accused custody or control which are intended for use by the Criminal Court as evidence at the trial.” Nevertheless:

• Less than six months prior to trial, the defense had not been given an official version of the IHT’s Rules.

• The defense was routinely denied access to documents and evidence during the investigative phase, and transcripts of judicial questioning were never made available, despite numerous requests.

• Defense attorneys were consistently denied sufficient time to review the investigative judge’s dossier – and were often been forced to conduct even their limited review in public areas of the court.

• The defense was only provided with the prosecution’s evidence a few days prior to trial, although Rule 40 requires the prosecution to disclose witness statements and all other evidence 45 days earlier – itself a patently insufficient amount of time to prepare a defense to charges of crimes against humanity, which are very factually and legally complex. That violation of Rule 40 was in no way cured by the 40-day continuance granted the first day of trial; by comparison, when the prosecution in Kovacevic introduced 14 new genocide charges against the defendants, the ICTY Appeals Chamber held that a seven month continuance was reasonable.

Failure to notify the defendants of the charges against them.

Judge Abdel-Rahman read the formal charging document at the end of the prosecution’s case. Saddam and his co-defendants are charged with a number of crimes against humanity; the failure to inform them of the charges prior to trial thus significantly limited the defense’s ability to effectively cross-examine the prosecution witnesses.

Preventing the defendants from presenting their case.

• After three defense witnesses testified that some of the 148 Shiites allegedly executed in Dujail are still alive – evidence supporting the defense’s claim that the documentary evidence regarding the events in Dujail could not be trusted – Chief Judge Abdel-Rahman had the witnesses arrested for perjury, along with a fourth defense witness who claimed that the Chief Prosecutor had tried to bribe him to testify against Saddam. The four witnesses later “confessed” that they testified falsely because they were either intimidated by Saddam loyalists or bribed by the defense. Two of those witnesses, who have since fled Iraq, told the Associated Press that they were beaten in detention to make them sign the confessions.

• The Court refused to allow the defense to enter video that allegedly showed the Chief Prosecutor at a 2004 ceremony in Dujail with several individuals who later became witnesses for the prosecution. The video was refused pending a written request, despite the fact that the Court had earlier allowed the prosecution to introduce video evidence with no advance notice.

Failure to rule on defense motions.

The Court has yet to rule on numerous defense motions, many of which were submitted prior to trial. Although some of those motions are likely frivolous – such as the one challenging the IHT’s legitimacy – at least two are not. One is a motion to recuse Judge Abdel-Rahman on the ground that he cannot be impartial toward Saddam and his co-defendants, because he is from Halabja, where 5,000 people died in a chemical attack by Saddam’s forces, and was once the president of a Halabja victims’ society. Rule 11 of the IHT Rules of Procedure and Evidence specifically provide that “[a"> Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any personal association which might affect his impartiality.”

The other motion sought to obtain the complete records of the Revolutionary Court trial that led to the 148 executions – obviously critical evidence, given that the prosecution’s central contention is that the trial was a sham.

The Court has also failed to investigate defense claims that some of the 148 Shiites allegedly executed are still alive, even though Judge Abdel-Rahman ordered such an investigation.

Prejudicial statements by government officials and IHT judges.

• In an interview with Al-Iraqiya before the trial began, Iraqi President Jalal Talabani stated: “I received the investigating magistrate who is in charge of questioning Saddam. I encouraged him to continue his interrogation. He told me good news, saying that he was able to extract important confessions from Saddam Hussein.” Talabani added that “Saddam signed these confessions,” and that “Saddam Hussein is a war criminal and he deserves to be executed 20 times a day for his crimes against humanity.”

• Prior to trial, Abdul Aziz Hakim, head of the Supreme Council of the Islamic Revolution in Iraq (SCIRI), stated in an interview with Reuters that “there is no doubt that Saddam deserves more than just execution ... I am among those who are going to file a complaint for killing 64 members of my family. For these crimes alone he deserves 64 executions.”

• In a 2005 film by Jean-Pierre Krief for Arte France, an IHT judge said that Saddam had “persecuted the Kurds. He killed them, wiped many of them out. He also used chemical weapons with the aim of committing genocide against this race, against this people, to eradicate them as a nation. He also went after the Shiites due to their religious beliefs.”

• In the same film, another IHT judge called Saddam “one of the worst tyrants in history.”

Political interference with the Court.

The original trial judge, Rizgar Amin, resigned after senior Iraqi government officials publicly criticized him for being too lenient with Saddam. Judge Amin cited those comments as one of the reasons for his resignation.

Judge Amin’s replacement, Saeed al-Hammashi, a Shiite, was transferred out of the trial chamber after the De-Baathification Commission claimed that he had been a member of the Baath Party. Not only was Judge al-Hammashi the consensus choice of the IHT judges, the Chief Prosecutor at Saddam’s trial was skeptical of the Commission’s claims and insisted that it produce proof of al-Hammashi’s Baathist past. The Commission refused.

Inadequate standard of proof.

The IHT statute does not require the Court to find Saddam and his co-defendants guilty “beyond a reasonable doubt” in order to convict. Moreover, Paragraph 213 of the Iraqi Code of Criminal Procedure specifically provides that “[t">he court’s... verdict in a case is based on the extent to which it is satisfied by the evidence presented during any stage of the inquiry or the hearing” – obviously a much lower standard.

Failure to provide for the commutation of a death sentence.

Article 27 of the IHT Statute prohibits any government authority, including the President of Iraq, from "grant[ing">" a pardon or mitigat[ing"> the punishment issued by the Court.” The article directly contradicts Article 6(4) of the ICCPR, which provides that "[a">nyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases."

Looking Beyond Due Process
By Mark A. Drumbl

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 169 (2006).

Michael Scharf and Kevin Jon Heller engage in a vigorous debate whether the Hussein trial, thus far, accords with internationalized notions of due process. I have two responses. First, although this is an interesting debate, what I believe more relevant is to consider the effects of process on the narrative that emerges from the trial. Second, I worry that much of the energies of external observers are caught up in the minutiae of due process and technocratic assessments, instead of looking at a broader picture likely much more relevant to Iraqis. This broader picture involves judging the full record of Saddam's abuses and, further, the relevance of retrospective justice during a tragic period of ongoing violence and injustice.

1. Iraqi High Tribunal judges demonstrate considerable vigilance in controlling the courtroom. On the one hand, tight control is necessary for managerial and bureaucratic reasons, to streamline process, dissipate inflammatory controversy, and preserve judicial authority. The need for such control arises from Hussein's antics, designed to turn the proceedings into farce. On the other hand, though, levels of control that become too tight may strangle the judicial record and thereby incur credibility costs. To the best of my knowledge, the Iraqi High Tribunal judges have not yet formally responded to defense motions that pertain to the Tribunal's jurisdiction and the legality of its creation. Whereas debate over the formation of the Tribunal may be unnecessary, embarrassing, or technical to U.S. officials, this debate may be construed differently by Iraqis insofar as it goes to the heart of the U.S. occupation and continuing U.S. control over important political decisions in Iraq, including the decision to put Hussein on trial and invest large sums of money to that end. This presents a contrast with the ICTY, whose interlocutory opinion on jurisdiction in the Tadic matter * flaws notwithstanding * grappled with the institution’s own legitimacy.

2. As I have previously blogged, Iraqi High Tribunal prosecutors elected to proceed through a series of mini-trials instead of, as had been the case with Milosevic, one overwhelming omnibus proceeding. The first mini-trial involved the deaths, at the hands of the Iraqi state, of 148 residents of the Shiite village of Dujail. Although a grievous act, the Dujail massacre remains a very small part of Hussein's atrocities, which involved the deaths of at least 300,000 Iraqis (exclusive of those who perished in wars conducted against Iran and Kuwait). Notwithstanding that the Dujail proceedings permits the opportunity to judge the Revolutionary Court as a whole for applying the law in the service of oppression, their overall performativity is of relatively modest value. Other Tribunal mini-trials involve a higher-stakes context. This is the case with imminent proceedings related to the Anfal campaign. By proceeding sequentially, Iraqi High Tribunal prosecutors ensure cyclical episodes of gratification and closure. They thereby reduce the risks that long-term proceedings may lead to a deferred all-or-nothing outcome. This is a prudential move. However, it is not without its own drawbacks. It results in a dramaturgical methodology in which the narrative is related through iterated vignettes. Tribunal officials need to be diligent that the digestible parts add up to a compelling, overarching whole. If discontinuous lower-stakes convictions remain narratively fragmented, then the Tribunal may, in the name of prudence, have forsaken the opportunity to leave a hardier historical footprint.

Finally, the choice to prosecute Saddam Hussein (and other defendants) and to showcase this trial as an instrument for transitional justice was made at a time of ex ante optimism about the ability to maintain order in Iraq. At present, however, Iraq is wrought with pervasive insecurity. There are daily reports of bombings, death, and sectarian violence. The Tribunal itself has been plagued by violence. Several individuals associated with the Tribunal (including a judge and three defense lawyers) have been assassinated. Any accountability process must reasonably guarantee the safety of its participants and its audience. Iraqis wonder why so much effort is dispensed to punishing twenty-five year old crimes while such limited effort is dispensed to punish yesterday’s sectarian crimes.

Posted @ 2:28 AM | Experts Debate the Issues: The Dujail Trial | 13 Comments | 0 Trackbacks

June 14th, 2006

Issue #40: An Assessment of the Prosecutor's Closing Argument

UPDATE (June 19): An Assessment of the Prosecutor's Closing Argument
by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 207 (2006).

There were three noteworthy aspects of the Prosecutor's closing argument in the Saddam Trial:

First, it was very significant that the Prosecutor asked the Tribunal to drop charges against one of the lesser-known co-defendants and to be lenient on the other three lesser-known co-defendants. The Prosecutor is obviously hoping that this move will show that the proceedings are fair. Experts who have been following the trial had opined that there was very little evidence against these four and wondered if it was a mistake to include them in the case. I think there is a parallel here to the Nuremberg trial, in which three of the defendants were acquitted. Supporters of the Nuremberg Tribunal said that proved the Tribunal was fair, while critics asserted that it was a travesty of justice that the three were ever made to stand trial in the first place.

Second, compared to other recent war crimes trials, this was a remarkably short Closing Argument. Closing Arguments at The Hague, Arusha and Freetown have been known to go on for days, not hours. The brevity here reflected the strength of the Prosecutor’s case. Like Nuremberg, the Dujail trial turned out to be based mostly on documents, whose authenticity was confirmed, rather than the testimony of witnesses, whose credibility could be called into question. These documents, which are available on this Blog, proved that Saddam ordered the assault on Dujail and the destruction of its buildings, palm groves, and water supply, that he ordered the rounding up of 399 townspeople, that he ordered their interrogation and detention at Abu Ghraib, that he gave medals of honor to the security forces that tortured and killed the townspeople, that he ordered their summary trial en mass before the Revolutionary Court, and that he signed the order of execution for 148 of the townspeople. Even Saddam confirmed during the trial that he was responsible for these acts. In light of the strength of the documentary evidence, all the Prosecutor really had to do in his Closing Argument was argue "res ipsa loquitur," Latin for "the thing speaks for itself." The Prosecutor did a competent job of summarizing the evidence, and explaining the legal case for why the proven acts constituted crimes against humanity, defined as a systematic attack on a civilian population. However, I would have liked to have seen the Prosecutor do a better job of rebutting Saddam's argument that the acts against the people of Dujail were justified and were no different than American actions taken to root out terrorists and insurgents in Afghanistan and Iraq in the context of its war on terrorism, for this will turn out to be the most important legal question of the trial.

Third, the Prosecution asked for the death penalty for Saddam Hussein and his half brother, the Security Chief, Barzan Tikriti. If the judges find that the two defendants are responsible for the detention, torture, and mass murder of 148 innocent civilians as retribution for a failed assassination attempt, the death penalty may well be warranted, even if it means that Saddam will not be around to stand trial for the more serious offenses, such as the killing of 200,000 Kurds in the Anfal campaign in 1988 or the killing of 500,000 Southern Marsh Arabs in 1991. It was significant that the Prosecutor did not ask for the death penalty for co-Defendant Judge Awad al-Bandar, the Revolutionary Court Judge who in 1984 had sentenced the 148 townspeople to death after an allegedly unfair trial. Judge al-Bandar and several of the defense witnesses argued that the 1984 trial process was not unreasonable given that the defendants had all signed confessions before trial, that the trial was conducted in the middle of the Iran-Iraq war, and that the defendants were assigned a defense counsel, all according to the prevailing law at the time. If convicted, Judge al-Bandar will be the first judge since the Nuremberg Alstoetter case (made famous in the Academy Award-winning movie Judgment at Nuremberg) to be held criminally responsible for presiding over an unfair trial in which the law was used as a political weapon against opponents of the regime. Unlike Judge al-Bandar, the Nazi judge was accused of presiding over a whole series of unfair trials, of receiving large financial rewards for his politicized rulings, and of sentencing people to death for such crimes as "racial pollution" which were inherently discriminatory and unjust. While the case against the four underlings was extremely weak, and the case against Saddam and Barzan was extremely strong, I believe the real question will be how the judges decide the case against Awad al-Bandar.

What Must the Prosecution Successfully Address in its Closing Argument to Win the Case?
by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 204 (2006).

The Prosecution’s Closing Argument in the first trial before the Iraqi High Tribunal is scheduled to begin on Monday, June 19, 2006. Since the IHT did not conduct preliminary hearings on procedural matters nor produce written opinions on such matters, presumably these will be dealt with in the final judgment and therefore the Prosecutor must make relevant procedural as well as substantive arguments during its closing. This essay addresses the ten points the Prosecution must successfully address to win its case.

First, the Prosecution must respond to the Defense arguments that the IHT is not a legitimate judicial body. In particular, the Defense has asserted that the creation of the IHT by an Occupying Power (the United States) violates the Geneva Conventions. They have also argued that the Presiding Judge, Ra’uf Abdel-Rhaman, was biased (due to past membership in an anti-Ba’athist organization) and should have been removed.

Second, the Prosecution must deal with the issue of whether prosecution of Saddam Hussein in an Iraqi Court is barred by head of state immunity under Iraqi law, and whether the Iraqi National Assembly legitimately revoked such immunity by approving the Statute of the IHT in August 2005.

Third, the Prosecution must respond to the Defense arguments that certain rulings by the IHT denied the defendants a fair trial. Specifically, the Prosecution must address the propriety of waiting until half-way through the trial to announce the detailed charges, the practice of frequently expelling defense counsel and defendants from the courtroom for disruptive behavior, the use of court-appointed counsel when the Defense Counsel were boycotting the proceedings or were expelled from the courtroom, and the Tribunal’s refusal to permit the Defense to call a number of their remaining witnesses. The Prosecution must also address the defendants’ claims that they were physically abused while in custody, as under international precedent such abuse could constitute a ground for dismissal of the case.

Fourth, the Prosecution must explain how the various acts carried out by the Ba’ath Regime, which were described in the testimony and documents admitted into evidence during the trial, constitute crimes against humanity. See my essay #34 (below) for a summary of the evidence. These acts included the shelling and strafing of the town of Dujail via helicoptor gunships; the destruction of the town’s homes, water supplies, and orchards; rounding up 399 townspeople, including young children, for interrogation; employing torture and causing the deaths of 50 people during interrogation; ordering 148 people summarily tried en masse before the Revolutionary Court; and ordering all of these people executed after the trial which lasted a single session. To establish crimes against humanity under Article 12 of the IHT Statute, there must be proof of widespread and systematic mistreatment, torture, and/or killings of civilians. Related to this, the Prosecution must answer the claim by several defense witnesses that many of the alleged victims are actually still alive in Iraq.

Fifth, the Prosecution must address issues of authenticity. The trial turned out to be much more document-based than was anticipated. Some of the most important documents included Saddam’s order for the execution of the Dujail townspeople, and his order that medals of honor be awarded to the security forces involved in their apprehension and interrogation. The Defense has challenged the authenticity of these and other documents, and argued that the court-appointed experts who affirmed Saddam’s signature on them cannot be trusted as independent because they all have links to Iraq’s interior ministry. In particular, the defense strenuously argued that the document indicating that Saddam Hussein approved the execution of people under the age of eighteen was forged.

Sixth, the Prosecution must respond to the Defense claims that certain witnesses were offered money and/or threatened with bodily harm by the chief prosecutor to give false testimony. The Prosecution should explain how the documentary evidence and the in-court admissions of the defendants corroborate the testimony of key witnesses.

Seventh, the Prosecution must respond to the Defense argument that the Defendants’ actions were lawful based on the necessity to combat/suppress the terrorists and insurgents operating in Dujail who tried to assassinate Saddam. Related to this is the question of whether comparisons between the Ba’ath Regime’s actions in 1982 and the way the United States has conducted its current war on terrorism (namely by attacking towns in Afghanistan and Iraq and imprisoning suspects at Abu Ghraib and Guantanamo Bay) are legally relevant. Since the Tribunal may conclude the comparisons are relevant, the Prosecution needs to distinguish American actions from those of the Ba’ath Party in terms of necessity, proportionality, and treatment of subordinates who committed crimes. In this light, the Prosecution also needs to address the testimony of Saddam’s bodyguards who said that Saddam ordered them not to return fire after the assassination attempt in case innocent people might be hurt, and the testimony of former Ba’ath party officials who said that routine procedures were followed in responding to the Dujail assassination attempt.

Eighth, the Prosecution must respond to the defense witness testimony that the proceedings before the Revolutionary Court were fair under the circumstances. The Prosecution must spell out in detail those attributes of a fair trial that were lacking in the Revolutionary Court case against the Dujail townspeople.

Ninth, the Prosecution must explain how each of the eight defendants can be held criminally responsible for the alleged crimes. Under principles of direct responsibility and command responsibility, Saddam Hussein and his half-brother Barzan Ibrahim (former head of the Makhubarat intelligence agency) can be found responsible either for issuing orders (to attack the city, to round up hundreds of townspeople for interrogation, to try them before the Revolutionary Court, and to order their execution), or for failing to prevent or punish subordinates for unlawful acts (such as destroying the Dujail water supply, burning down the orchards, and/or torturing and killing the DuJail detainees). Under the precedent of the Nuremberg-era Alstoetter Case, defendant Awad al-Bandar (the head of Saddam’s Revolutionary Court) can be held responsible if he ordered the executions of the Dujail defendants knowing that the Dujail trial was patently unfair and that his court was being used as part of a systematic attack against the civilian population of Dujail. To warrant a conviction of the three lesser known co-defendants -- Mizhar Abdullah Ruwayyid, Abdullah Kazim Ruwayyid, Ali Dayih and Mohammed Azawi Ali – the Prosecution must explain how the evidence proves these informers knew or should have known that a crime against humanity would befall the neighbors on whom they informed.

Finally, the Prosecution must address the issue of whether the death penalty is the appropriate sentence for any or all of the defendants, in light of the relative gravity of the crimes charged, the defendants’ position in the hierarchy of power, and their personal involvement in the crimes.

The Defense will get their chance to rebut the Prosecution’s arguments during their Closing Argument a few days later, and then the five judges of the IHT will adjourn to consider and write their judgment. That judgment will be appealed to the 9-member Appeals Chamber, which will bring the case to a final conclusion sometime in the fall.

Response by Mark Ellis

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 208 (2006).

I would like to respond to Professor Scharf’s essay regarding the Prosecutor’s closing arguments. I agree with Professor Scharf’s position that the Prosecutor, during his closing arguments, will likely restate the substantive case presented against the defendants during the trial. I believe the Prosecutor will also set forth how these acts constitute crimes against humanity. However, I do not think that the Prosecutor needs to address the procedural elements of the case.

Iraqi law is based on a civil law system and the Iraqi High Court is following Iraq’s own criminal procedure code, supplemented by the Rules of Procedure and Evidence, created specifically for the Court under the direction of the CPA. Thus, even though the Prosecutor has played a much greater role in this trial than would generally occur in a civil law criminal case, it is still the Court (i.e., the judges) that has the burden of determining all procedural legal matters.

Under Iraqi law, once the Investigative Judge presented the Court the dossier containing evidence for a prima facie case against the defendants, the judges, and particularly the Chief Judge, took full control over the trial. This included the Chief Judge’s very active role in examining and cross-examining witnesses, as well as the Court arbitrating, on its own, issues relating to procedural law. In many ways, this is neither the Prosecutor’s case nor the defendants’ case; it is simply a case before the Court. The Prosecutor is there to “walk” the Court through the evidence contained in the dossier. Therefore, it is not the Prosecutor’s responsibility to respond to, nor argue for or against, any of these procedural issues. He does not have the “burden to prove” procedural issues. In truth, he doesn’t actually have the burden to prove the substantive elements either. This evidence is already contained in the dossier and it is up to the Court to make that determination.

Therefore, I would submit that the Prosecutor does not need to proffer his opinion on issues such as the Court’s legitimacy, head of state immunity, the expulsion of defence counsel and defendants, the authenticity of documents, nor w