Issue # 10: Is the Saddam Hussein Trial one of the most important court cases of all time?

YES by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 229 (2006).

The term “Trial of the Century” has been employed with respect to the major international war crimes trials of our time, including the 1945 Nuremberg Trial, the 1961 Adolf Eichmann Trial, the 1987 Klaus Barbie Trial, the 1989 Nicolae Ceausescu Trial, and most recently the 2002-2005 Milosevic Trial. There are five criteria, which the Saddam Hussein Trial meets, which suggest that it is likely to rank among these seminal cases.

The first criterion is the scale of the atrocities. Saddam stands accused of the worst crime known to human kind – genocide. He is alleged to have ordered the use of poison gas against the Northern Iraqi Kurds, to have dammed rivers in order to starve out the Southern Marsh Arabs, and to have deported, detained, tortured, and executed thousands of opponents of the Ba’ath regime. Altogether, there are said to be nearly one million victims of his regime.

The second criterion is the status of the accused. At Nuremberg, Hitler escaped trial by committing suicide, leaving his second in command, Herman Goering to be prosecuted as a proxy. Eichmann and Barbie were merely sycophantic underlings. Ceausescu was a petty dictator. And Milosevic has proved to be less of a monster than Bosnian Serb leader Radovan Karadzic and Bosnian Serb General Ratko Mladic, who are still at large. Saddam Hussein, in contrast, was the top official responsible for the actions of the Ba’ath regime, and he is said to have maintained extraordinary control over the Iraqi military and security forces.

The third criterion is the level of interest of the international community. Because a broad coalition fought against Saddam Hussein with U.N. approval in 1991, Saddam Hussein is extremely well known throughout the world and the level of media and public interest in his trial is immense.

The fourth criterion is the legal precedent that the trial will set. As the world’s first “internationalized domestic tribunal,” the Iraqi Special Tribunal is likely to serve as a new kind of model for bringing former leaders to justice throughout the world, which will complement other options such as trial before the International Criminal Court or before Hybrid International-Domestic tribunals like the Special Court for Sierra Leone. Moreover, the Iraqi Special Tribunal’s use of international definitions of crimes and standards for due process will serve as a model for the ordinary Iraqi courts, as well as courts throughout the Middle East.

The final criterion is the likely effect of the trial. If the Saddam Hussein trial is viewed as fair and if the evidence convinces most Iraqis of his guilt, this will discredit his followers and quell support for the ongoing insurgency. If, on the other hand, the trial is a train wreck, it may ignite an Iraqi civil war, which could spill over to neighboring countries.

The stakes couldn’t be higher. For these reasons, it is fair to say that the Saddam Hussein case merits the title “mother of all trials.”


Not necessarily: by Leila Sadat

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 230 (2006).

In arguing that the Saddam Hussein trial is a “Trial of the Century,” Professor Scharf appears to be suggesting that media interest is tantamount to success, importance and legitimacy. This is a mistake. Criminal trials, whether of important and notorious individuals, or of small-time offenders accused of petty crimes, are nothing more than show trials, unless three criteria are met: The judges must be independent, well-qualified and impartial; the accused must be properly and effectively represented; and the proceedings must be fair. Using these criteria, it is difficult not to be skeptical about the fairness, and therefore the ultimate significance, of the trial of Saddam Hussein.

As I have noted in one of my earlier essays (Neither Fish nor Fowl), the judges of the Iraqi Special Tribunal (now apparently known as the Higher Criminal Court) were originally chosen under U.S. occupation, and several media reports suggest that they are all of Kurdish or Shiite ethnicity. Moreover, there have been attempts to “purge” the court of former Baath party members including, most recently, Judge Juhi, the Tribunal’s chief investigative judge. This in and of itself does not automatically indicate that the judges are not “independent, well-qualified and impartial,” but it suggests that it is perhaps very soon for a country that has been without an independent judiciary for many years to quickly reinvent itself. It is difficult to imagine how a few weeks training in London under the tutelage of a handful of U.S. lawyers can overcome 35 years of living under the regime of Saddam Hussein. Recall that the French courts that tried and heard appeals from Klaus Barbie, and the Israeli Courts that tried and heard appeals from Adolf Eichmann were not established for the sole purpose of doing so. Instead, they were for the most part ordinary civil courts staffed by professional judges who were tasked to participate in extraordinary events. The judges of the IST, in contrast, are newly-minted, sit on an extraordinary court created by a foreign occupying power that is still waging a military campaign within the country, and are themselves subject to threats of violence. Without opining as to whether they are qualified or not (and one can only wish them “good luck” in their endeavors), it is undeniable that they face challenges that would try the most seasoned, phlegmatic and experienced of jurists.

At the same time, the qualifications of the judges are probably the least problematic aspect of the proceedings before the IST, which are significantly more deficient on the question of representation of the accused and fairness of the proceedings. Although the right to counsel is granted by IST rules of procedure, counsel is not mandated to be present at many stages of the proceedings, meaning that Saddam and other accused have been interrogated without defense counsel present. Indeed, Iraqi President Jalal Talabani recently stated on Iraqi State television that a judge had been “able to extract confessions” from Saddam Hussein. Although it is unclear at what point defense counsel (or those who claim to be representing Saddam) were given the file, there is no doubt that there is an extraordinary imbalance between the resources of prosecution and defense counsel. The Prosecution is being staffed by U.S. lawyers working behind the scenes, and funded by the United States, to the tune of U.S. $ 128 million. Many of the Tribunal’s rules also appear to have been shaped to suit U.S. rather than Iraqi interests, particularly the absence of IST jurisdiction over non-Iraqi defendants. Many defense lawyers have argued that they are not safe in Iraq because they do not (unlike the Prosecution team) receive U.S. military protection. Saddam’s lead Iraqi attorney, Khalil al-Dulaimi has stated that he has not been able to speak privately with his client without “severe” American monitoring, and that he has not been given sufficient time to prepare for the trial. There also appears to be no requirement that guilt be proved beyond a reasonable doubt.

The creation of ad hoc courts with special jurisdiction is inevitably fraught with peril, and is never the best option. The accusation of “victor’s justice“ is ever-present, which is one of the reasons why the world has now established a permanent international criminal court, rather than resorting to ad hoc adjudication in each case. Sometimes ad hoc or extraordinary courts are a necessary evil, but because their legitimacy is inherently fragile, it is particularly important that the process by which an accused is tried before them is beyond reproach. What made the Nuremberg trials so significant wasn’t just the importance of the accused and the extraordinary nature of the atrocities (two of Professor Scharf’s criteria), but the fairness of the proceedings. When Admiral Karl Dönitz was accused of waging unrestricted submarine warfare, his lawyer was permitted to introduce an affidavit from U.S. Admiral Chester Nimitz to the effect that the U.S. was doing the same thing in the Pacific. As Justice Robert Jackson stated in his opening address to the International Military Tribunal at Nuremberg, “[w">e must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” For the IST’s legacy to be enduring, its personnel must do the same.

Posted @ 3:21 AM | Experts Debate the Issues: The Dujail Trial