Issue #39: The Significance of the Testimony of Tariq Aziz

Not Just Another Witness: The Significance of the Testimony of Tariq Aziz
By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 201 (2006).

May 24, 2006, will likely be remembered as the high water mark for the defense in the Saddam Hussein Trial. On that day, Tariq Aziz, the Foreign Minister of Iraq during the Ba’ath Regime, took the stand to testify on behalf of the defense.

Even more than Saddam himself, Tariq Aziz is the Iraqi face most recognized by Westerners. Known for his white hair, glasses, expensive suits, and articulate statements in fluent English, Aziz has appeared frequently at the United Nations, foreign capitols, and on the international media during the past two decades. Many of us expected that the seventy-year-old former diplomat, who has been in custody since 2003, would end up testifying against Saddam in a plea deal, and that he would provide the crucial insider’s view that would nail the lid on the case against Saddam. Instead Aziz testified passionately for his former boss. “I wanted to come and witness for President Saddam Hussein, because I know he has not committed any crime in relation to Dujail,” Aziz confidently told the Iraqi High Tribunal judges.

Building on one of the main themes of the defense, Aziz asserted that the Iraqi government had reacted lawfully during what he described as a period of attacks by Iranian-allied terrorists and insurgents against Iraqi government officials, including an attempt on his own life at Mustansariye University a short time before the incident at Dujail in 1982. “No one is guilty of anything,” Aziz opined. “The President of the State in any country, if faced with an assassination attempt during a time of war, is entitled to take procedures to capture and punish those who were involved.” He added that there was nothing personal about the response to the Dujail assassination attempt.

Aziz compared the conflict in the 1980s to the instability in Iraq today, pointing out that the people in Dujail were treated no differently than the Americans have treated people in places like Falluja. In concluding, Aziz contended that Saddam was being prosecuted selectively as the fallen leader of a country whose new rulers include members of the very group – the Dawa party – which was responsible for the 1982 assassination attempt against Saddam. To highlight this point, as Aziz walked passed the former Iraqi leader on the way out of the courtroom, he respectfully said: “Goodbye, Mr. President.”

The problem for the Prosecution is not just that the distinguished former diplomat made a compelling witness, but more importantly that the comparisons Aziz made between Ba’athist and American anti-terrorism/anti-insurgency tactics are not really all that far off the mark. In fact, at the very moment Aziz was testifying in the IHT courtroom in Baghdad, a thousand miles away in Kabul his point was being driven home when Afghan President Hamid Karzai announced an official inquiry into a U.S. military raid of a southern Afghan village suspected of hiding Taliban fighters, which reportedly ended up killing at least sixteen innocent civilians, including some at a religious school. And just a few after Aziz had appeared before the IHT, the international press broke the story of the November 2005 massacre at the Iraqi town of Haditha, in which U.S. marines reportedly went on a retaliatory killing spree, resulting in two dozen Iraqi civilian deaths a few hours after a makeshift bomb killed one of their comrades outside the town. In the last two years, the largely Sunni town has been the periodic target of a series of anti-insurgent raids by American troops (Operation River Gate, Operation Scimitar, and Operation River Blitz), in which numerous homes and building have been destroyed and scores of non-combatants have become “collateral damage.”

Similarly, earlier in the trial, one of the defendants compared the lawfulness of the detention, interrogation, and torture of the Dujail townspeople by the Ba’ath regime to the much criticized U.S. detention and interrogation practices at Abu Ghraib and Guantanamo Bay, saying “everyone knows during interrogation of terrorists these things happen, it’s unavoidable.”

But are such comparisons legally relevant? In two earlier essays (#13 and #20), I explained that this line of argument is not foreclosed by the historic rejection of the “tu quoque” (you too) defense under international law. At Nuremberg, defendant Grand Admiral Carl Doenitz argued that he could not be convicted of waging unrestricted submarine warfare in the Atlantic since American Admiral Chester Nimitz had admitted that the United States had done the same thing in the Pacific. It was significant that Doenitz was not arguing that American violation of international law rendered it unfair to convict the German Admiral for the same acts – an argument that would have been rejected as “tu quoque.” Rather, the defense was arguing that the American actions indicated that it was not a violation of international law to conduct unrestricted submarine warfare. Thus, Defense Counsel Kranzbuehler told the Nuremberg Tribunal: "The stand taken by the Prosecution [which had argued against recognition of the Tu Quoque defense"> differs entirely from the conception on which my application is based. I in no way wish to prove or even to maintain that the American Admiralty in its U-boat warfare against Japan broke international law. On the contrary, I am of the opinion that it acted strictly in accordance with international law." See 8 Trial of the Major War Criminals before the International Military Tribunal (official version, Nuremberg, 1947), at 549. The Nuremberg Tribunal was persuaded by this argument, and did not convict Doenitz of the charge. Similarly, it is perfectly legitimate for the defense to argue (as Tariq Aziz did on May 24) that what Saddam did to the town and people of Dujail was lawful, and as evidence of its legality draw comparisons to contemporary U.S. actions to route out insurgents and terrorists in towns across Afghanistan and Iraq and to detain and interrogate such persons at the Abu Ghraib and Guantanamo Bay detention centers.

In response, the Prosecution should draw three critical distinctions between the two situations. First, Saddam’s disproportionate response to Dujail (destroying the houses, burning down the orchards, rounding up 399 people including young children) suggests that his intent was to retaliate against the town and use it as an example to deter future acts of insurgency, rather than simply to route out the terrorists involved in the assassination plot. Second, rather than prosecute and punish his subordinates, documents and witness testimony indicate that Saddam issued medals of honor to the security forces who tortured and killed 49 of the Dujail detainees during interrogation. Third, two years after the assassination attempt, when any threat they posed had long passed, Saddam ordered 148 of the Dujail detainees summarily tried en mass before the Revolutionary Court and executed at the end of a patently unfair proceeding.

While I expect the Tribunal to be swayed by these distinctions, the Dujail case may end up providing an enduring lesson to the United States as well as to Iraq -- a lesson about what tactics cross the line in its global war on terror.

Posted @ 6:06 AM | Experts Debate the Issues: The Dujail Trial