Issue #8: Can Saddam Hussein get a fair trial?

Debate between Dr. Curtis F. J. Doebbler (No)
and Professor Michael P. Scharf (Yes)
This debate was aired nationally on C-SPAN on January 29, 2005

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 66 (2006).

Professor Curtis Doebbler:

Thank you very much. I want to thank Case Western Reserve University for being willing to host such a debate like this. There have been many other places that have shied away from discussing this issue although I think it is a very vital issue for human rights and, as I will try to indicate, a very vital issue for the values that underlie our society here in the United States. So I want to thank them very much, and to thank particularly Professor Scharf for being willing to join me in this forum.

The first issue that has to be addressed is the fact that this whole situation, the trials, what is happening right now in Iraq, the military involvement, the soldiers that are being killed, the civilians that are being killed, the destruction of Fallujah, all this has taken place in violation of international law. I have been to more than sixty countries after the invasion of Iraq in March 2003, and I have not met one lawyer with whom I had to argue about the illegality of the invasion, except in the United States. In every other country I visited, and meeting with some of the heads of state of those countries and some of their most senior lawyers, they were unequivocally convinced that the United States'' aggression against Iraq was a violation of international law, a violation of Article 2(4) of the Charter of the United Nations, which represents binding international law for the United States. So we have to look at it from that perspective.

In other words, think about it as if another country came to the United States, decided it didn''t like President Bush and the Republicans in power because they thought that President Bush was a war criminal for having committed crimes of aggression against other countries, invaded the United States, and then put him on trial claiming that they would give him a fair trial. That is the situation right now that we face in Iraq. And I think it is important for us not to lose sight of that, the crucial starting point is the illegal use of force against the territorial integrity and political independence of another sovereign country in violation of international law.
Furthermore, even today, some would say that there is still an ongoing use of force against the people of Iraq and there is certainly an occupation of large parts of Iraq. This occupation is an illegal occupation, in part, because it was based on an illegal use of force, in part, because it is an occupation by a foreign power that has acted oppressively in the areas that it occupies.

So the second important aspect to understand is that Iraq, at least large parts of the country, are in a state of occupation. Legally, that means that there is law that applies to an occupier and how an occupier can treat the people of a country, how it can treat the institutions of a country, and in Iraq, the United States, I suggest, has not abided by this law.

In fact, part of that law, the Fourth Geneva Convention, states that an occupying power may not dissolve the judicial bodies of a country and institute its own judicial bodies. The United States has dissolved the judicial institutions of Iraq, and it has instated its own judges.

Yes, many of these judges were taken from among Iraqi judges, but only after Iraqi judges were politically vetted to decide which ones should stay. And they did not vet them for their legal competence; no, they vetted them in a process they called de-Ba''athification, a process to which every single one of the judges was subjected because ever single judge in Iraq, with maybe an insignificant number of exceptions, were members of the Ba''ath Party.

In fact, the most senior judges in Iraq were senior members of the Ba''ath Party. These judges were excluded from the judiciary. It is not a huge number, 180 of maybe 900 judges, but they are the most senior judges. The judges that are left are some of the most junior judges. Some of them were not even judges before, and now they have been made, by essentially decree, judges. These are the individuals who will be part of the court.

Now, I''d like to go through each judge''s background and say this is the judge who is going to be in the court, and these are his qualifications or lack of qualifications. But I cannot do that. I cannot do that because I don''t know who the judges are of that court. I know one person who is an investigating judge only because a television tape of the initial appearance in July leaked out, but that should not have even been made public according to the American authorities, and that person is a very junior judge, not a very senior judge.

So we have a situation where the occupying power has created a tribunal of, in our opinion, less than competent judges that will be trying one of the most complex and possibly one of the most important cases in recent history. Certainly, I think that is inappropriate, but more importantly, I think that is a breach of international law guarantees of a fair, competent, independent, and impartial tribunal.

The court is not independent because it is created by an occupying power through a process by which the judges are chosen based not on their legal qualifications but on a political vetting. The court is not impartial prima facie in the words of the State Department, commenting on South American countries, because faceless judges are prima facie, an illegitimate form of judiciary. And they violate the provisions of due process in a variety of ways.

If there is to be a court in Iraq that tries individuals for international crimes, such a court must have the authority to try every individual who has committed a crime against international law in Iraq. That includes crimes of aggression, which are not included in the statute right now, despite what you heard about some of the allegations -- and I will come to that in a second -- that includes being able to try the nationals of other countries that may have committed these crimes.
Probably not many of you are old enough to remember, but one of the greatest criticisms leveled at the Nuremberg and Tokyo processes after World War II by one of the judges who participated in that process, Judge Rollings, a Dutch judge of the Tokyo tribunal, was that that process was not legitimate because it was only "victor''s justice" and in his words, that is, "not justice at all."

If we are going to have a system of the rule of law applied to Iraq if the occupying power and, hopefully, eventually, a sovereign Iraqi Government that represents the people of Iraq is going to deal with issues in their country that require a judiciary to deal with them, we need to have a fair judiciary established in that country. We do not have that right now.

I want to go through some of the due process rights that are being violated and that need to be respected in this instance. I mentioned some of them already, and because many of you are law students, I will point out, although not with the jurisprudence, we don''t have time for that here, at least some of the provisions of international law, which are relevant.
For example, many of you know that Article 14 of the International Covenant of Civil and Political Rights provides for a competent, independent, and impartial tribunal. This right is also provided for in the American Declaration on the Rights and Duties of Man, which although not a binding treaty on the United States, has been accepted many times by the Inter-American Commission as reflecting customary international law that the United States must abide by, and those of you who studied constitutional law are certainly aware that the United States courts have said that customary international law is part of United States law.

Also, the Geneva Conventions, Article 84, subparagraph 2 of the Third Geneva Convention specifically, contains the right to be judged by an independent and impartial tribunal.
One also has a right to be informed of the charges against him in a timely manner. That is in both the Third Geneva Convention, Article 104, and the International Covenant of Civil and Political Rights article 14, sub-paragraph 3(a). The right to be informed of charges against you is not the right to stand before somebody who points at you and says "We think you have done many bad things," or to even come before one who rails against you based on his perception of what might be public values.

It is the right to come before a court where you are presented with a prima facie case of facts against you and where you are able to reply to those facts, and most importantly, it is a chance to understand what provisions of law you have violated.

I don''t know if any of you have seen -- I have watched it numerous times as you can imagine -- the process which took place apparently in Baghdad at the beginning of July 2004. Not one provision of law was mentioned in relation to any charges. In fact, at one point, the judge held up the law, and said that this is the basis of the establishment of the tribunal and the President replied that he was holding up the criminal law that was signed into law by the President.

The judge didn''t even have the sense to open the book he was holding, and look at that criminal law and cite some of its provisions. That in my view -- and I think the view of any criminal lawyer -- is a travesty of justice. If you are brought before a criminal tribunal in this country, I hope that they will cite a provision of law that you have violated in any indictment or allegations against you.

I will not go through all of the due process rights. There are more than 20 rights that have been violated, but because of time, I just want to point out one or two important ones, particularly one that is important to myself as one of the counsel for the individual concerned, and that is the right to be able to have contact with a lawyer and not just any lawyer, not like in Guantanamo, where the state decides who your lawyers are.

I represent some individuals in Guantanamo Bay as well, and do you know what the Government told me? If I wanted to see those individuals, I have to sign an agreement stating that I would essentially tell the Government anything that was mentioned in my communications between them. That is an inappropriate manner for the government to respect somebody''s right to legal counsel.

This right requires a defendant be able to consult with legal counsel of his own choosing and to be able to consult in confidence, and to be able to facilitate a defense.
Seeing that the time is running out, let me just end here because as you can see, it takes quite a long time just to get through the basic principles being violated in this case -- but let me just conclude by mentioning that it is not only Iraqis from whom we are setting a bad example by disrespecting or ignoring the rule of law, but it is a important to all of you in this room, or at least those of you who are lawyers, because the law is based on respect for the law and respect for the rule of law for everybody equally. Thank you.

Professor Michael Scharf:

Let me begin by thanking Mr. Curtis Doebbler for coming to Cleveland this morning, braving the winds of the Chicago Airport to make it here for this nationally televised debate. We actually met on line. After I had written a piece entitled "Can this Man Get a Fair Trial," which appeared in the Washington Post Outlook Section a few weeks ago, there was a Washington Post online discussion, in which Mr. Doebbler wrote, "Dear Michael: I have followed your online chat with interest, even encouraging some of my volunteers to participate. Rather than debate your many wrong or misleading statements on line, I would like to invite you to debate me in person. Maybe the Washing Post would sponsor such a debate or maybe even your law school. As you undoubtedly are aware, I am one of the lawyers for Mr. Saddam Hussein, and I am intimately familiar with the proceedings in the case. Best regards, Curtis Doebbler."

I wrote back "Dear Curtis: I would enjoy very much a public debate with you. Would you have any interest in coming to Case Western Reserve University for such an event?" And here we are now.

The other thing I want to do is provide a disclaimer. Although I was one of five experts from around the world selected by the Department of Justice Regime Crimes Liaison Office in Baghdad to help train the IST judges, I must stress I do not speak for the Iraqi Special Tribunal or the Department of Justice, and I have not received any financial compensation for my assistance. I am assisting the IST because I feel very strongly that this will be one of the most important trials of our lifetime, and I want to make sure that this trial complies fully with international human rights standards.

Now, let me begin by responding to Mr. Doebbler''s attempt to link the issue of the validity of the invasion in 2003 with the question of the legitimacy of the Iraqi Special Tribunal process.

First of all, the Security Council of the United Nations, representing all the countries in the world, recognized in Resolution 1546 that the occupation ended and the Iraqi Interim Government was sovereign as of June 30, 2004. It has recognized the legitimacy of the Iraqi Interim Government, as well as the process for democratic elections to be held at the end of this month. Further, in calling for accountability for violations of international humanitarian law, the Security Council made a distinction between what many countries feel was an unauthorized invasion and the issue of what to do next.

Secondly, if the democratically elected Government of Iraq approves the statute and the judges of this tribunal, there would be no issue of a violation of the Geneva Conventions because that would severe any argument that this was a statute and a court that was set up solely by an occupying Government. The new Iraqi Government could do this indirectly by approving the funding for the IST and continuing its operations, including the construction of its facilities, the issuance of indictments, the conduct of investigations, and the commencement of trials.

And third, Mr. Doebbler''s argument smacks of what is known in international law as the tu quo que defense. This is Latin for "you also." And it is a defense that the Nuremberg defendants raised sixty years ago; it is a defense Milosevic has raised at his trial before the Yugoslavia Tribunal in The Hague, and it is almost always raised by former leaders accused of war crimes. International courts have always dismissed this defense as invalid.

In doing so, they say it is true that in wars and in foreign affairs many countries violate international law, but when a tribunal is set up to prosecute defendants, the only question is: were these defendants guilty of the crimes charged? And the fact that opposing leaders may have also violated international law or committed war crimes does not excuse the guilt of these defendants. Therefore, the tu quo que defense is not a valid defense. It may resonate as a television sound bite, but legally, it doesn''t hold water.
Now, with respect to judging the legitimacy of the Iraqi Special Tribunal, there is international precedent that gives us a guide for making this determination and that comes out of the Yugoslavia Tribunal set up by the UN Security Council in 1993. In its first judgment, known as the Tadic case, the Tribunal ruled on whether it was validly established and what it means to be a legitimate tribunal. The Yugoslavia Tribunal focused on three criteria:
First of all, international law requires that a war crimes tribunal be established by a statute, not just executive fiat. There has to be some controlling document. Well, the Iraqi Special Tribunal does have a statute. It is interesting to most people who have read that statute that it looks an awful lot like the statute of the Yugoslavia Tribunal and the Rwanda Tribunal.

Secondly, the Yugoslavia Tribunal said that to be legitimate a war crimes tribunal has to be independent from the executive and legislative branches. Now, according to the Iraqi Special Tribunal, it is independent. The judges are specifically prohibited from taking direction from the Iraqi Government or US Government. The president and the legislature of Iraq cannot control the Iraqi Special Tribunal much like our legislature and president can''t control our own courts.

For evidence that the IST is independent in fact as well as on paper, I point out that Provisional Prime Minister Ayad Allawi, who is running for election, has been saying on the campaign trail that the trial of Saddam Hussein and Chemical Ali must start imminently. And there is quite a bit of pressure from him and others who would like to see these trials commence as soon as possible. But the Iraqi Special Tribunal said "no, the trials cannot start because we do not yet have our rules of procedure; the defense counsel has not had time to prepare their case; and we will not and shall not be bullied by the executive branch because we are independent," proving, in fact, that the IST meets the second criterion.
And third, the Yugoslavia Tribunal said that war crimes tribunals have to comply with fundamental norms of due process, which are enumerated in the Covenant on Civil and Political Rights, as Mr. Doebbler mentioned.

Next, Mr. Doebbler attacked the fairness of the Iraqi Special Tribunal process, and I believe in assessing the fairness of any tribunal we have to ask three questions: First, are there fair procedures? Second, are there impartial judges? And third, is there equality of arms between the defense counsel and the prosecution?

With respect to the first of these factors, fair procedures, those are set out in Article 20 of the Iraqi Special Tribunal statute, which is modeled on the Yugoslavia Tribunal statute and the Rwanda Tribunal statute. The due process protections include the presumption of innocence; the right to be informed promptly and in detail of the charges and to have adequate time and facilities to prepare a defense and to communicate freely with counsel of choice; the right to be tried without undue delay; the right to be present during trial and to appointment of counsel; the right to have counsel present during questioning; the right to examine and confront witnesses; the right against self-incrimination and not to have silence taken into account in determining guilt; and the right to disclosure by the Prosecution of exculpatory evidence, and witness statements; and the right to appeal. These rights will be further elaborated upon in the rules of procedure of the Iraqi Special Tribunal, which should be coming out after the elections and very soon.

There has been a lot written in the press criticizing the Iraqi Special Tribunal, saying things like it will allow torture evidence to come in. In fact, that is the kind of thing that will be specifically addressed in the rules of procedure, and it is premature to try to allege that that such evidence will be allowed now when we have not yet seen the rules of procedure publicly. Those who have been working behind the scenes on the rules of procedure have suggested that they will be very similar to the rules of the Yugoslavia and Rwanda Tribunals and will be fully in compliance with Article 14 of the Covenant of Civil and Political Rights.

Next, with respect to impartial judges, Mr. Doebbler stressed that their identities have been kept secret. He mentioned that the only judge the world has seen is the one young judge, thirty-five year old Judge Ra''id, who presided over Saddam Hussein''s televised hearing last July, and Mr. Doebbler alleged that Judge Ra''id''s face was only shown because the footage leaked out.

Judge Ra''id is one of the judges I got to know best in London because he spoke fluent English. Judge Ra''id told me the story of how his image was released to the world during the July 1st hearing. He told me that he was given the option of having his face electronically blocked out and his voice distorted, but he and his colleagues were so committed to the perception of fairness, that they didn''t want the IST to be seen as the kind of hooded judges used in Chile and in Peru in the past that have been so criticized by human rights organizations.

So Judge Ra''id said he was willing to take the risk to his security to have his face shown to the world, and that the other judges throughout the trial will do the same, notwithstanding the fact that there are threats against them because they want to show the world how committed they are to fairness.

Now, let me say a few words about who the judges are and who they are not. One of the things the US public is not generally aware of is that Iraq was a very litigious society. There are actually 20,000 members of the Iraqi bar, 10,000 of which reside in Baghdad itself. Out of nine hundred available judges, about 150 were disqualified because they were active Ba''athists party members or associated with Saddam Hussein''s corrupt national security courts. That left 750 judges with experience in non-political murder cases, assault cases, rape cases, and cases involving torts, and contracts, family law, and property matters.

The judges who were selected range in age from thirty-five for Judge Ra''id, who despite his youth is extremely competent; all the way up to the mid-sixties. And most have between fifteen and twenty years experience on the bench.

Now, in London, we spent a lot of time going over the specific crimes of genocide, crimes against humanity, war crimes, and the crime of aggression because these are crimes that no national judges have experience with. Even the distinguished jurists selected by the UN to serve on the Yugoslavia Tribunal and the Rwanda Tribunal needed to attend training sessions to learn this unique area of the law.

And I learned through these training sessions and simulations that the IST judges really grasped the nuances of this area of law. I also learned that they were very committed to the possibility of acquittal. They were very interested to learn that the Nuremberg Tribunal had acquitted three of the twenty-two major Nazi defendants tried after World War II, and several of the IST judges said "if the prosecution doesn''t prove its case, we will acquit because we think that will prove to the world how fair this tribunal is."
There is actually an advantage to having Iraqi judges as opposed to international judges preside in this case. There is a myth of Nuremberg and the other international tribunals that the target population will think international judges are more fair and an international tribunal''s judgment more credible. In fact, the U.S. Government conducted opinion polls in Germany after Nuremberg that showed that most of the German an people, 85 to 90 percent of them, thought that the Nuremberg trials were not legitimate, that the judges were not fair, and that the Nazi defendants, Goering et al., were not guilty.

One might be tempted to dismiss these numbers because Nuremberg represented a kind of victor''s justice, since the judges were from the four allied nations: the U.S., the U.K., Russia, and France. What about the modern international war crimes tribunals? Well, the Yugoslavia Tribunal has experienced the same thing. During the trial of Slobodan Milsosevic, the Serb people have been polled, and they say overwhelmingly that Milosevic is not getting a fair trial, that these international judges are not fair, and they don''t believe that Milosevic is guilty.

Now, if you ask the German people today if they believe in Nuremberg and the guilt of the Nazi leaders, they say, "yes," and there is some empirical data that suggests that these views changed in the 1960s at a point when the German people started having their own trials of the Nazis who had not been prosecuted at Nuremberg.

And this strongly suggests that Iraqi trials by Iraqi judges are most likely to convince the Iraqi people of the crimes of the Ba''athist regime -- provided they are proven by credible evidence in an open and fair trial.

Another advantage of domestic trials is that they enable defendants to effectively subpoena witnesses, whereas Milosevic has not been able to compel witnesses to testify at his trial since the international tribunal lacks any type of constabulary.

Finally, let me turn to the question of equality of arms. The fact that distinguished lawyers like Mr. Doebbler and Ramsey Clark are on the defense team suggests that Saddam Hussein, if anything, has the stronger side representing him against the Iraqi prosecutors. I have no doubt that every single procedural issue that possibly can be raised will be raised by this superb defense team which consists of over twenty of the world''s most prominent criminal lawyers.

Defense counsel will raise these issues in front of the five trial judges. They will raise them again in front of the nine appeals chamber judges, and Saddam Hussein will get his fair day in court. At the end of the day, if there is a mountain of evidence proved against him and a record is created like the twenty-two volumes appended to the Nuremberg judgment, I think history will look back and say that Saddam Hussein was fairly tried, although it was a tough case to try. I mean, obviously, when you are dealing with an Adolf Hitler, a Slobodan Milosevic, or a Saddam Hussein, these are especially tough cases to try fairly in the face of world public opinion. But the IST, I believe, is capable of bending over backwards to maintain fairness, and the real challenge is going to be for it to convince the rest of the world that the trial of Saddam Hussein was fair. Thank you.

Professor Doebbler:

Thank you very much. There are so many things to reply to I don''t know where to start because I think Mike has a very different understanding of the facts.

But I must congratulate you because some of these judges I and my colleagues have known for decades, and we are not able to evaluate their competence. After one week, you are able to determine that they will provide a fair trial. So I congratulate you sincerely on that foresight and ability to look into their minds.

I must say, though, I would rather have my little sister representing me if she was able to have access to me, to talk with me, to bring me law books, to be able to facilitate some sort of defense, then even a lawyer as prestigious as yourself, if they tied you up and shipped you off to Siberia and didn''t give you any contact to me but merely said you are my lawyer,…that doesn''t help. It is not a matter of who represents the individual; it is a matter of being able to prepare a defense, and the first criteria for that is that you have access to the individual you represent.

And don''t take my word for it that this is an unfair trial situation. Take the word of a High Commissioner for Human Rights of the United Nations, the word of the head of the tribunal right now, the chief prosecutor of the tribunal in The Hague, the word of Amnesty International, they have all said that.

I find somewhat whimsical this restatement, which constantly resurfaces from journalists and others, of this tu quo que defense. It only seems to be the other side that mentions it. Perhaps you want to raise that defense for us, but it is not something right now that is even being considered by the defense except to listen to it from the other side.

You may well have access to the judges. You may know who the judges are, but the point of due process is that -- and the point of equality of arms, as you pointed out -- is that the defense team and the defendant know these people and have access to them and have access to the evidence.

It is very possible that there are, as the U.S. has claimed, 35,000 tons of evidence available. But we have not seen one ounce of that evidence, and I wish that one of you are sometimes put in a position -- or I should say -- I wish you never to be put in a position of having to defend an individual when you have no access to that individual and no access to any of the evidence that is being used to allegedly prosecute--or maybe in this case the better word is persecute--that individual.

And finally, Michael raises the issue of polls. You know, before the Iraqi war, a poll that was done I believe by CNN -- but you might correct me on that -- said that most people in the world in the United States and outside - believed that American President George W. Bush was a greater threat to peace and security than Iraqi President Saddam Hussein. Maybe we have the wrong guy in the dock? Thank you.

Posted @ 9:28 AM | Experts Debate the Issues: The Dujail Trial