Issue #40: An Assessment of the Prosecutor's Closing Argument
UPDATE (June 19): An Assessment of the Prosecutor's Closing Argument
by Michael Scharf
Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 207 (2006).
There were three noteworthy aspects of the Prosecutor's closing argument in the Saddam Trial:
First, it was very significant that the Prosecutor asked the Tribunal to drop charges against one of the lesser-known co-defendants and to be lenient on the other three lesser-known co-defendants. The Prosecutor is obviously hoping that this move will show that the proceedings are fair. Experts who have been following the trial had opined that there was very little evidence against these four and wondered if it was a mistake to include them in the case. I think there is a parallel here to the Nuremberg trial, in which three of the defendants were acquitted. Supporters of the Nuremberg Tribunal said that proved the Tribunal was fair, while critics asserted that it was a travesty of justice that the three were ever made to stand trial in the first place.
Second, compared to other recent war crimes trials, this was a remarkably short Closing Argument. Closing Arguments at The Hague, Arusha and Freetown have been known to go on for days, not hours. The brevity here reflected the strength of the Prosecutor’s case. Like Nuremberg, the Dujail trial turned out to be based mostly on documents, whose authenticity was confirmed, rather than the testimony of witnesses, whose credibility could be called into question. These documents, which are available on this Blog, proved that Saddam ordered the assault on Dujail and the destruction of its buildings, palm groves, and water supply, that he ordered the rounding up of 399 townspeople, that he ordered their interrogation and detention at Abu Ghraib, that he gave medals of honor to the security forces that tortured and killed the townspeople, that he ordered their summary trial en mass before the Revolutionary Court, and that he signed the order of execution for 148 of the townspeople. Even Saddam confirmed during the trial that he was responsible for these acts. In light of the strength of the documentary evidence, all the Prosecutor really had to do in his Closing Argument was argue "res ipsa loquitur," Latin for "the thing speaks for itself." The Prosecutor did a competent job of summarizing the evidence, and explaining the legal case for why the proven acts constituted crimes against humanity, defined as a systematic attack on a civilian population. However, I would have liked to have seen the Prosecutor do a better job of rebutting Saddam's argument that the acts against the people of Dujail were justified and were no different than American actions taken to root out terrorists and insurgents in Afghanistan and Iraq in the context of its war on terrorism, for this will turn out to be the most important legal question of the trial.
Third, the Prosecution asked for the death penalty for Saddam Hussein and his half brother, the Security Chief, Barzan Tikriti. If the judges find that the two defendants are responsible for the detention, torture, and mass murder of 148 innocent civilians as retribution for a failed assassination attempt, the death penalty may well be warranted, even if it means that Saddam will not be around to stand trial for the more serious offenses, such as the killing of 200,000 Kurds in the Anfal campaign in 1988 or the killing of 500,000 Southern Marsh Arabs in 1991. It was significant that the Prosecutor did not ask for the death penalty for co-Defendant Judge Awad al-Bandar, the Revolutionary Court Judge who in 1984 had sentenced the 148 townspeople to death after an allegedly unfair trial. Judge al-Bandar and several of the defense witnesses argued that the 1984 trial process was not unreasonable given that the defendants had all signed confessions before trial, that the trial was conducted in the middle of the Iran-Iraq war, and that the defendants were assigned a defense counsel, all according to the prevailing law at the time. If convicted, Judge al-Bandar will be the first judge since the Nuremberg Alstoetter case (made famous in the Academy Award-winning movie Judgment at Nuremberg) to be held criminally responsible for presiding over an unfair trial in which the law was used as a political weapon against opponents of the regime. Unlike Judge al-Bandar, the Nazi judge was accused of presiding over a whole series of unfair trials, of receiving large financial rewards for his politicized rulings, and of sentencing people to death for such crimes as "racial pollution" which were inherently discriminatory and unjust. While the case against the four underlings was extremely weak, and the case against Saddam and Barzan was extremely strong, I believe the real question will be how the judges decide the case against Awad al-Bandar.
What Must the Prosecution Successfully Address in its Closing Argument to Win the Case?
by Michael Scharf
Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 204 (2006).
The Prosecution’s Closing Argument in the first trial before the Iraqi High Tribunal is scheduled to begin on Monday, June 19, 2006. Since the IHT did not conduct preliminary hearings on procedural matters nor produce written opinions on such matters, presumably these will be dealt with in the final judgment and therefore the Prosecutor must make relevant procedural as well as substantive arguments during its closing. This essay addresses the ten points the Prosecution must successfully address to win its case.
First, the Prosecution must respond to the Defense arguments that the IHT is not a legitimate judicial body. In particular, the Defense has asserted that the creation of the IHT by an Occupying Power (the United States) violates the Geneva Conventions. They have also argued that the Presiding Judge, Ra’uf Abdel-Rhaman, was biased (due to past membership in an anti-Ba’athist organization) and should have been removed.
Second, the Prosecution must deal with the issue of whether prosecution of Saddam Hussein in an Iraqi Court is barred by head of state immunity under Iraqi law, and whether the Iraqi National Assembly legitimately revoked such immunity by approving the Statute of the IHT in August 2005.
Third, the Prosecution must respond to the Defense arguments that certain rulings by the IHT denied the defendants a fair trial. Specifically, the Prosecution must address the propriety of waiting until half-way through the trial to announce the detailed charges, the practice of frequently expelling defense counsel and defendants from the courtroom for disruptive behavior, the use of court-appointed counsel when the Defense Counsel were boycotting the proceedings or were expelled from the courtroom, and the Tribunal’s refusal to permit the Defense to call a number of their remaining witnesses. The Prosecution must also address the defendants’ claims that they were physically abused while in custody, as under international precedent such abuse could constitute a ground for dismissal of the case.
Fourth, the Prosecution must explain how the various acts carried out by the Ba’ath Regime, which were described in the testimony and documents admitted into evidence during the trial, constitute crimes against humanity. See my essay #34 (below) for a summary of the evidence. These acts included the shelling and strafing of the town of Dujail via helicoptor gunships; the destruction of the town’s homes, water supplies, and orchards; rounding up 399 townspeople, including young children, for interrogation; employing torture and causing the deaths of 50 people during interrogation; ordering 148 people summarily tried en masse before the Revolutionary Court; and ordering all of these people executed after the trial which lasted a single session. To establish crimes against humanity under Article 12 of the IHT Statute, there must be proof of widespread and systematic mistreatment, torture, and/or killings of civilians. Related to this, the Prosecution must answer the claim by several defense witnesses that many of the alleged victims are actually still alive in Iraq.
Fifth, the Prosecution must address issues of authenticity. The trial turned out to be much more document-based than was anticipated. Some of the most important documents included Saddam’s order for the execution of the Dujail townspeople, and his order that medals of honor be awarded to the security forces involved in their apprehension and interrogation. The Defense has challenged the authenticity of these and other documents, and argued that the court-appointed experts who affirmed Saddam’s signature on them cannot be trusted as independent because they all have links to Iraq’s interior ministry. In particular, the defense strenuously argued that the document indicating that Saddam Hussein approved the execution of people under the age of eighteen was forged.
Sixth, the Prosecution must respond to the Defense claims that certain witnesses were offered money and/or threatened with bodily harm by the chief prosecutor to give false testimony. The Prosecution should explain how the documentary evidence and the in-court admissions of the defendants corroborate the testimony of key witnesses.
Seventh, the Prosecution must respond to the Defense argument that the Defendants’ actions were lawful based on the necessity to combat/suppress the terrorists and insurgents operating in Dujail who tried to assassinate Saddam. Related to this is the question of whether comparisons between the Ba’ath Regime’s actions in 1982 and the way the United States has conducted its current war on terrorism (namely by attacking towns in Afghanistan and Iraq and imprisoning suspects at Abu Ghraib and Guantanamo Bay) are legally relevant. Since the Tribunal may conclude the comparisons are relevant, the Prosecution needs to distinguish American actions from those of the Ba’ath Party in terms of necessity, proportionality, and treatment of subordinates who committed crimes. In this light, the Prosecution also needs to address the testimony of Saddam’s bodyguards who said that Saddam ordered them not to return fire after the assassination attempt in case innocent people might be hurt, and the testimony of former Ba’ath party officials who said that routine procedures were followed in responding to the Dujail assassination attempt.
Eighth, the Prosecution must respond to the defense witness testimony that the proceedings before the Revolutionary Court were fair under the circumstances. The Prosecution must spell out in detail those attributes of a fair trial that were lacking in the Revolutionary Court case against the Dujail townspeople.
Ninth, the Prosecution must explain how each of the eight defendants can be held criminally responsible for the alleged crimes. Under principles of direct responsibility and command responsibility, Saddam Hussein and his half-brother Barzan Ibrahim (former head of the Makhubarat intelligence agency) can be found responsible either for issuing orders (to attack the city, to round up hundreds of townspeople for interrogation, to try them before the Revolutionary Court, and to order their execution), or for failing to prevent or punish subordinates for unlawful acts (such as destroying the Dujail water supply, burning down the orchards, and/or torturing and killing the DuJail detainees). Under the precedent of the Nuremberg-era Alstoetter Case, defendant Awad al-Bandar (the head of Saddam’s Revolutionary Court) can be held responsible if he ordered the executions of the Dujail defendants knowing that the Dujail trial was patently unfair and that his court was being used as part of a systematic attack against the civilian population of Dujail. To warrant a conviction of the three lesser known co-defendants -- Mizhar Abdullah Ruwayyid, Abdullah Kazim Ruwayyid, Ali Dayih and Mohammed Azawi Ali – the Prosecution must explain how the evidence proves these informers knew or should have known that a crime against humanity would befall the neighbors on whom they informed.
Finally, the Prosecution must address the issue of whether the death penalty is the appropriate sentence for any or all of the defendants, in light of the relative gravity of the crimes charged, the defendants’ position in the hierarchy of power, and their personal involvement in the crimes.
The Defense will get their chance to rebut the Prosecution’s arguments during their Closing Argument a few days later, and then the five judges of the IHT will adjourn to consider and write their judgment. That judgment will be appealed to the 9-member Appeals Chamber, which will bring the case to a final conclusion sometime in the fall.
Response by Mark Ellis
Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 208 (2006).
I would like to respond to Professor Scharf’s essay regarding the Prosecutor’s closing arguments. I agree with Professor Scharf’s position that the Prosecutor, during his closing arguments, will likely restate the substantive case presented against the defendants during the trial. I believe the Prosecutor will also set forth how these acts constitute crimes against humanity. However, I do not think that the Prosecutor needs to address the procedural elements of the case.
Iraqi law is based on a civil law system and the Iraqi High Court is following Iraq’s own criminal procedure code, supplemented by the Rules of Procedure and Evidence, created specifically for the Court under the direction of the CPA. Thus, even though the Prosecutor has played a much greater role in this trial than would generally occur in a civil law criminal case, it is still the Court (i.e., the judges) that has the burden of determining all procedural legal matters.
Under Iraqi law, once the Investigative Judge presented the Court the dossier containing evidence for a prima facie case against the defendants, the judges, and particularly the Chief Judge, took full control over the trial. This included the Chief Judge’s very active role in examining and cross-examining witnesses, as well as the Court arbitrating, on its own, issues relating to procedural law. In many ways, this is neither the Prosecutor’s case nor the defendants’ case; it is simply a case before the Court. The Prosecutor is there to “walk” the Court through the evidence contained in the dossier. Therefore, it is not the Prosecutor’s responsibility to respond to, nor argue for or against, any of these procedural issues. He does not have the “burden to prove” procedural issues. In truth, he doesn’t actually have the burden to prove the substantive elements either. This evidence is already contained in the dossier and it is up to the Court to make that determination.
Therefore, I would submit that the Prosecutor does not need to proffer his opinion on issues such as the Court’s legitimacy, head of state immunity, the expulsion of defence counsel and defendants, the authenticity of documents, nor witness tampering by the defence. These are issues solely within the domain and jurisdiction of the Court and it alone carries the burden of addressing them. The Court is not looking to the Prosecutor to “make a case” on any of these issues. The Prosecutor will likely focus on succinctly summarizing the evidence presented in the case.
The Prosecutor will, however, be able to address any perceived procedural errors made by the Court during the appeals process.
Posted @ 7:01 AM | Experts Debate the Issues: The Dujail Trial
