Issue #35: What Happens to the Saddam Trial if Civil War Consumes Iraq

by David Scheffer

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 215 (2006).

In the event civil war or sectarian violence consume Iraq—and that day already may have arrived—the fate of the Iraqi High Criminal Court and the trials of Saddam Hussein and his regime’s top leaders will hang in the balance. Security issues will dominate the proceedings, even more so than they have during the last six months. Although Presiding Judge Ra’uf Abdel Rahman can cut off Saddam Hussein’s microphone at will, the fact remains that Saddam can use the Dujail trial, as currently managed, and any later trials to stoke the violence outside the Green Zone and encourage its threat to the courtroom itself. The immediate alternative is closed trials which will endanger the fairness of the process and anger large numbers of Iraqis (particularly Sunnis) demanding public access to the trials. Indeed, the original justification for holding the trials in Iraq will be largely defeated if that happens. Whether the trials remain open or closed, witnesses increasingly will fear giving testimony. One can imagine the threats to judges, prosecutors, and defense counsel rising and, with their families at risk, many may abandon their important roles in the trials or be killed or wounded trying to fulfill their duties. Even journalists will find it very difficult to cover the trials each day, particularly if their editors and producers deploy them to cover the civil war and a potentially crumbling government, or pull them out of Iraq all together for their own safety. Trial delays will multiply. As the American security umbrella begins to fold, security will become increasingly problematic.

When the International Criminal Tribunal for the Former Yugoslavia was established in 1993, war continued to rage in Bosnia-Hertzegovina and Croatia and there was good reason to locate the court in The Hague where security could be assured and the benefit of distancing the judicial process from the violence could be realized. The downside was how remote it seemed (despite televised coverage) to the perpetrator and victim populations alike, but that was a price that had to be paid at the time. The International Criminal Tribunal for Rwanda was established only months after the genocide that swept that country and, at the time, security was a paramount concern regarding the location of the court. While its location in Arusha, Tanzania, has created some difficulties and the occasional obstruction of the Rwandan Government, the fact remains that the trials have proceeded in a secure environment and its judgments well received in Kigali and globally. An important compromise was to locate the Office of the Prosecutor in Kigali, an arrangement that worked fairly well despite mismanagement problems in both locations during the early years. The Special Court for Sierra Leone was not physically established in Freetown until the United Nations was satisfied that the civil war there had essentially ended and security could be supplemented with the presence of U.N. peacekeepers. The agreement between the United Nations and Sierra Leone establishes the authority to move the court to a foreign jurisdiction “if circumstances so require…” The Extraordinary Chambers in the Courts of Cambodia, located near Phnom Penh, has begun its operations in a peaceful country long after the demise of the Khmer Rouge. All of these tribunals, of course, have enjoyed intensive U.N. engagement and the support of the international community. All of that has been lacking with the Iraqi High Criminal Court.

The discredited optimism of the Bush Administration during and after Operation Iraqi Freedom and the Anglo-American occupation of Iraq included a good faith effort to build a court on Iraqi soil to investigate and prosecute more than a quarter century’s atrocity crimes of genocide, crimes against humanity, and war crimes under the regime of Saddam Hussein. If all else had proceeded well—creating a secure environment that would have saved the lives of an estimated 30,000 Iraqis who have now perished, maintaining the Iraqi army and police largely intact, launching a successful reconstruction program, fully restoring and improving essential services like electricity and sewage treatment and the crippled oil industry, and preventing the killing, torture, or abusive treatment of detainees and civilians by U.S. personnel and contractors which has shattered American credibility within Iraq and across the Islamic world—than the Iraqi High Criminal Court might have had a fighting chance. But such progress never occurred and now, as with so much else in Iraq, we are where we are and we must cope with the consequences.

Three outcomes must be guaranteed. First, the Dujail trial must proceed in accordance with international standards of due process. Otherwise, it will constitute defective justice that will undermine the rule of law in Iraq and threaten civil order. The judges (or some other competent Iraqi court) must rule in writing and with professional reasoning as soon as possible on defense motions regarding the legitimacy of the Iraqi High Criminal Court and of its jurisdiction over the Dujail case, as well as whether there is any conflict of interest for Judge Rahman or any other judge. The security risks and occasional chaos of the Dujail trial might subside somewhat, and key due process fundamentals would be observed, if those rulings were delivered.

Second, the death penalty must be removed, de facto if not de jure, as a possible sentence in the Dujail trial in the event Saddam Hussein is found guilty. No one can predict accurately the consequences of such a penalty being carried out in the near future, but one has to assume the worst case scenario in the violent circumstances of contemporary Iraq. A death penalty likely will make Saddam a martyr for the insurgency and much of the Sunni population. Why invite that probability? Furthermore, Saddam Hussein must be kept alive for many years in order to be prosecuted for far more significant atrocity crimes for which his alleged responsibility is the fulcrum of forthcoming trials covering, at a minimum, the Anfal campaign, the chemical gassing at Halabja, the invasion and occupation of Kuwait, the brutal suppression of the Shi’a and Kurdish uprisings following the Gulf War, the draining of the southern marshes, and the political persecutions of Saddam’s regime. Iran also looks for justice regarding Saddam’s alleged war crimes during the Iran-Iraq war of the 1980’s. If Saddam sits in the dock with a death penalty already imposed but temporarily suspended, he will have nothing to lose by using subsequent trials as his platform to inspire domestic violence. If Saddam is executed following the Dujail trial, there is a strong likelihood that the air will be sucked out of the later mega-trials (if they are held at all). Justice and the historical record would not be served well. The millions of victims and their families in Iraq, Kuwait, and Iran would look back at the Dujail trial as an obscenity.

Third, someone has to have the foresight and courage to plan for the transfer of the Dujail trial or at least the subsequent trials to a location outside Iraq where security can be guaranteed and a process undertaken over many years to bring Saddam Hussein and his colleagues to justice. That plan not only must be initiated, it must be known to be underway so that the forces of violence in Iraq understand that justice will not be derailed or denied whatever the outcome within Iraq politically or militarily. That requires a far more energetic diplomatic effort by the United States and Iraqi authorities to discuss and negotiate judicial options in foreign jurisdictions and even under United Nations authority. Pride needs to be swallowed and reality embraced. In the end, if all of the trials can take place in Iraq in a secure environment and observant of international standards of due process, then the plan would be an obscure footnote to Iraq’s emergence from the Saddam era. But without such a plan in a country sliding towards civil war, the Dujail trial may become the main act burying credible justice in modern Iraq.

Posted @ 6:02 PM | Experts Debate the Issues: The Dujail Trial