Issue #38: The Case Against the Lesser-Known Defendants

by Michael Scharf and Kevin Pendergast

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 196 (2006).

It is not surprising that nearly all of the focus in the Dujail trial has been on Saddam Hussein, his half-brother Barzan Ibrahim (former head of the Mukhabarat intelligence agency), and Awad al-Bandar (the head of Saddam’s Revolutionary Court). This essay analyzes the legal case against Saddam’s lesser known co-defendants -- Mizhar Abdullah Ruwayyid, Abdullah Kazim Ruwayyid, Ali Dayih and Mohammed Azawi Ali, residents of Dujail charged with informing on their neighbors who later either died in prison or were sentenced to death.

According to the evidence submitted in the Dujail trial, a few hours after the July 8, 1982, assassination attempt against Saddam, these lesser known co-defendants wrote letters to the Ba’ath regime informing on villagers with familial connections to a Shiite opposition group called the Dawa party. The letters both identified those families as disloyal to Saddam’s regime and provided information as to their whereabouts. The people named in the letters – including women and children – were subsequently rounded up, tortured, sentenced to death in a sham trial, and executed in retaliation for the assassination attempt.

In helping Saddam’s agents identify and locate the residents who would soon become detainees, torture victims, and casualties, the informants served as aiders and abettors to one of the most serious of international crimes: the crime against humanity. Under Article 15 of the IHT Statute, a person who “aids, abets, or otherwise assists in the commission” of a crime against humanity subjects himself to criminal liability, even if he only “provides the means” for the principal crime. Several of the post-World War II war crimes trials confirmed that civilians and low-level officials can be held criminally liable for informing on neighbors who were opposed to the Nazi regime or were part of the underground resistance, where such neighbors were immediately thereafter arrested, tortured and executed without trial. See Gustav Becker, Wilhelm Weber, and 18 Others, Vol. VII Law Reports 67.

For a conviction, the Iraqi High Tribunal must merely conclude from the evidence that the informers knew or should have known that a crime against humanity would befall the neighbors on whom they informed. The documents and video entered into evidence show that Saddam’s forces rampaged through the town of Dujail and conducted their investigation with indiscriminate violence. The house-to-house intrusions and beatings occurring in al Dujail on the day of the informing constitute all the circumstances necessary for the Tribunal to infer the informers’ knowledge.

The defendants may assert the defense that as local Ba’ath party officials, they were required by the Iraqi Penal Code to report information important to the government. In other words, they were merely following the law. This defense has failed too often in past war crimes trials to be taken seriously.

Saddam’s co-defendants are obviously small fish compared to the three primary figures. But tyrannical regimes do not succeed without the sycophantic support of such underlings. It is therefore just as important that such persons be brought to justice.

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A Response by Mark Ellis

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 197 (2006).

In response to the essay by Michael Scharf and Keven Pendergast, I would like to propose a counter argument: the Court has failed to show the required intent by the four lesser-known defendants in committing crimes against humanity.

Case law emerging from recent decisions of the international tribunals establishes that the requisite mens rea for crimes against humanity is intent to commit the underlying offences, combined with the knowledge of the broader context in which the offence occurs. It is this knowledge that transforms the offence into a crime against humanity i.e., that the defendants were aware of the greater dimensions of crimes committed.

This “knowledge” requirement makes sense because of the definition of crimes against humanity: “an act committed as part of a widespread or systematic attack against any civilian population with knowledge of the attack.” Thus, since these crimes cannot consist of isolated or sporadic acts but must form part of a systematic plan or widespread atrocities, the four lesser-known defendants must be aware of the link between their misconduct and the plan or widespread abuses. The defendants must have knowingly committed crimes against humanity in the sense that they must have understood their acts were part of something “bigger.”

The evidence would have to show that the four lesser-defendants had knowledge, either actual or constructive, that their acts were occurring and were part of a widespread or systematic basis as set forth by Saddam and his government. I don’t think it is sufficient to simply show that the defendants knew that an “additional crime” (e.g. torture) “would befall the neighbors on whom they informed.” The evidence would have to show that the defendants had knowledge that the “additional crimes” were, in fact, part of a widespread or systematic attack on the neighbors. If these defendants facilitated the arrest of their neighbors without this knowledge, they may have committed ordinary crimes under Iraqi law, but they did not commit a crime against humanity.

The witnesses who appeared last week on behalf of the four defendants painted a picture of defendants who are low-level, bureaucratic Baath party officials with little knowledge of the “big picture.” In fact, as we now know, one of the defendants (Mohammed Azawi Ali) is illiterate, and was dismissed by the Baath party because his cousins were members of the opposition Dawa party. In fact, the evidence presented earlier by the Court showed that the acts by the four lesser-known defendants, following orders from Baghdad, occurred immediately after the assassination attempt on Saddam Hussein. This undermines the argument that the defendants had knowledge that their acts were part of a widespread or systematic plan, since it is likely that Saddam and his cohorts were still constructing their overall policy of retribution against the Dujal residents.

I agree that even lower level perpetrators should be held accountable for their criminal involvement with the atrocities. There is little doubt that under the Iraqi criminal code, they would be liable for committing ordinary crimes. However, it does not mean that they have committed crimes against humanity.

The Court should be careful not to undermine or lessen the seriousness of crimes against humanity by casting an unsubstantiated wide-net over lower level defendants who have not shown the requisite knowledge of crimes against humanity.

Posted @ 11:55 AM | Experts Debate the Issues: The Dujail Trial