Issue #36: The Significance of Defendant Al-Bandar’s Testimony

Judgment at Nuremberg Revisited
By Michael P. Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 199 (2006).

The defendant who sits immediately to the right of Saddam Hussein in the IHT courtroom every day is Awwad Al-Bandar, the former Chief Judge of Saddam’s Revolutionary Court. The placement is no coincidence, as next to Saddam, Al-Bandar is the most important man on trial. He is charged with crimes against humanity in connection with ordering the execution of 148 Dujail townspeople after an unfair trial. He is the first judge since the Nuremberg-era Alstoetter case, which was made into the Academy Award-winning Movie “Judgment at Nuremberg,” to be tried for using his court as a political weapon.

On March 13, 2006, Al-Bandar took the stand to testify on his own behalf. Al-Bandar acknowledged that he presided over the 1984 Dujail trial, and that he sentenced all 148 defendants in that case to death after a trial that lasted only two weeks. “They attacked the president of the Republic and they confessed,” he told the IHT. He said that their confessions were verified by the intelligence department’s investigative judge, and added that the Dujail defendants also admitted their responsibility on radio and television. Morover, Al-Bandar said that the case file had established that weapons and incriminating documents, proving the Dujail defendants’ affiliation with the Iran-allied Al-Da’wah Party, were found in their hideouts in the Dujail orchards. He said that the Dujail defendants were represented by court-appointed counsel, and that his court issued the ruling in accordance with the law and without the interference or influence of any side. He admitted that the trial was a short one given the number of defendants, but said that due to the war with Iran and the defendants’ confessions the trial could not be delayed, stressing that “these were extraordinary events, as the president was targeted.” When confronted with documents showing that 46 of the 148 Dujail defendants had actually died during interrogation before the 1984 trial, Al-Bandar replied: “Is it so strange for someone to die during interrogation,” asserting that that five of his fellow former Ba’ath party leaders have died in U.S. custody since 2003. Al-Bandar then read from a prepared statement, saying “according to the law, a judge cannot be arrested or tried unless he carries out a proven crime.” He added that at the time of the Dujail trial, Iraqi law stated that any member of the Al-Da’wah Party was to be executed, and also required the death sentence for any person who attempts to kill the head of state. “Therefore, the court had no choice but to sentence the Dujail defendants to death.”

Al-Bandar’s testimony raises difficult moral and legal questions: should a judge be held criminally liable for presiding over an unfair trial if it comported with the domestic law then in effect? And should departures from normal fair trial norms be permissible with respect to alleged insurgents or terrorists in times of war? In considering these questions, it may be helpful to consider a few of the most memorable passages from the movie “Judgment at Nuremberg.”

Prosecutor’s Opening Statement: “Your Honor, the case is unusual in that the defendants are charged with crimes committed in the name of the law. These men are the embodiment of what passed for justice in the Third Reich. As judges on the bench you will be sitting in judgment of judges in the dock. This is how it should be. For only a judge knows how much more a court is than a courtroom. It is a process and a spirit. It is the House of Law. The defendants knew this too. They knew courtrooms well. They sat in their black robes. And they distorted and they perverted and they destroyed justice in Germany. They are, perhaps more than others, guilty of complicity in murders, tortures, atrocities—the most cruel and devastating this world has ever seen. Here they will receive the justice they denied others.”

Defense’s Opening Statement: “If the defendant is to be found guilty, certain implications must arise. A judge does not make the law. He carries out the laws of his country, be it a democracy or a dictatorship. The statement, ‘My country right or wrong,’ was expressed by a great American patriot. It is no less true for a German patriot. Should the defendant have carried out the laws of his country? Or should he have refused to carry them out and become a traitor?”

Judgment: “This trial has shown that under a national crisis, ordinary, even able and extraordinary men can delude themselves into the commission of crimes against humanity. How easily it can happen. There are those in our own country too that today speak of the protection of country, of survival. A decision must be made in the life of every nation, at the very moment when the grasp of the enemy is at its throat; then it seems that the only way to survive is to use the means of the enemy, to wrest survival on what is expedient, to look the other way. Only the answer to that is... survival as what? A country isn’t a rock; it’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult. Before the people of the world, here in our decision, this is what we stand for – justice, truth, and the value of a single human being.”

Like its Hollywood counterpart, the real-life Nuremberg Tribunal found the Nazi judges guilty of crimes against humanity, concluding that “the dagger of the assassin was concealed beneath the robe of the jurist.” The Tribunal rejected both the necessity defense and the notion that the judges should be absolved because they did not make the law, they only carried it out – the very arguments Al-Abandar has made before the IHT. For sixty years, the Alstoetter judgment has served as a warning to judges and other government officials. A conviction in the Al-Abandar case would reaffirm the continuing vitality of this precedent, and send an important message not just to those in the new Iraqi government, but also to those in governments around the world (including the United States) who might be tempted to argue that in time of war the law must be silent.

Posted @ 10:04 PM | Experts Debate the Issues: The Dujail Trial