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Experts Debate the Issues: The Dujail Trial

October 5th, 2005

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



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Posted by BlueprintProjectBlackEdition (email) on 12/31/2010 @ 03:56 PM

Yes. The Saddam Trial is one of the most important trials ever. Prof. Sharf. mentions five criterion in analyzing the importance of an international trial. First is the level of the atrocities. While Saddam's crimes fall short of those of Hitler and Nazi Germany, they are among the worst crimes ever. Second is the fact that Saddam is actually standing trial for his crimes, unlike Hitler. While other heads of state have been tried, Saddam is the most significant figure ever to stand trial. Third, is the level interest among the international community. This is the weakest of the criterion suggested as important. While community interest might be indicative of the importance of the trial, interest in its self does not make the trial important. The Fourth criterion is actually the strongest. The legal precedent this trial will set may have long lasting significance. Mainly, the fact that Saddam is being tried for both domestic and international crimes by a domestic court could mean future trials without the use of the ICC or Ad Hoc tribunals. Finally, Prof. Scharf mentions the likely impact of the trial as important. While this is yet to be determined, the future of Iraq will likely affect the view of the trial historically.

While this trial falls below Nuremberg in every category except the second, it still is among the most important of all time. In the future, it may well be viewed as the second most important trial of all time, behind Nuremberg. Whether it reaches this level of regard depends on the subsequent use of the precedent set as well as the fate of Iraq as a nation.

Posted by Dennis (email) on 02/03/2008 @ 07:36 PM

The Saddam Hussein Trial is one of the most important court cases of modern history because of its potential impact. Professor Scharf's fourth criterion, legal precedence, cited this argument and it is critical to note its importance. The concept of an "internationalized domestic tribunal" is groundbreaking because it provides a system, when fairly executed, which has the potential to shape how leaders think about their actions. The threat of prosecution from one's own countrymen is certainly a factor that may alter a leader's actions. Blending the concepts of the domestic legal system with international law and backing may serve as a buffer from potential genocide. The legal precedence of the trial will alter the future and at the same time correct previous sins.

However, as Leila Sadat and Professor Scharf suggest, it is critical that the trial not just be a show trial. If the legitimacy of the court can be credibly challenged, then the importance and impact of the Saddam Hussein trial is severely limited. Certainly, there are mechanisms of the legal process that did not go as planned, but this was the first time such a special court had been tried out. As a result, while there are some facets of the trial that do not seem fair, on the whole the Tribunal seems to have maintained a sense of fairness through its actions. As time goes on, the international legal community has learned lessons from the Saddam Hussein trial, reinforcing how important the trial was.

Following the precedence of the Nuremberg trials, the Saddam Hussein trial has begun to change how international law deals with criminals in a fair way. Because of the creation of the tribunal, the world was able to see a former world leader prosecuted, given his chance to speak, and found guilty. Though problems existed, an impact on the future of international law occurred.

Posted by Neil B on 02/03/2008 @ 04:53 PM

I agree with Scharf that the five criteria he lists certainly are important factors of that particular trial, but I believe the focus in determining whether it is one of the most important cases of all time centers on his fourth point, the precedent it sets and the legacy it leaves. The ultimate indicator of the importance of the Saddam trial is the extent to which the precedent it sets is followed, both in Iraqi courts and on the international stage. If the “internationalized domestic tribunal” model (in which domestic laws and procedures are merged with international laws and procedures to create a forum that meets international legal standards while retaining legitimacy in the eyes of the nation’s citizens) is adopted elsewhere, the Saddam trial could change the face of international criminal justice, and therefore truly be one of the most important cases of all time. If it is not followed, while it certainly is important to those affected by the crimes, the lasting impact of the trial itself will not be nearly as strong.

I find it interesting that Sadat criticizes the Saddam trial while praising the Nuremburg trials for their fairness. In fact, at the time of the Nuremberg trials, they received very similar criticism to the Saddam trial today. From a historical perspective, however, Nuremberg was a seminal case because despite its problems, it established a new way to confront large-scale international crimes. In the end, I believe the Saddam trial will do the same. It is a model for bringing former leaders to justice in their own country by their own people while maintaining standards agreed upon by the international community concerning fairness and due process.

Posted by Tufnel on 04/01/2007 @ 04:50 PM

I've been looking high and low on the web for a full transcript.
If anyone has any further info, I'd be very glad to hear from you.
Nora (Ireland)

Posted by Nora (email) on 08/15/2006 @ 11:59 AM

DECIDEDLY NOTIn determining whether or not the Saddam trial deserves the moniker of "trial of the century" all the circumstances surrounding the trial must be taken into account. Professor Scharf makes a good case when arguing his reasons for this trial taking on a crucial role for future prosecution of other world leaders still at large for crimes against humanity, but the question remains: Why has the United States waited until now to prosecute a world leader accused of genocide and try to set an example which future courts will follow?
I, however, believe the answer is rooted in politics, specifically revenge, as it is why President Bush has targeted Iraq and, in particular, Saddam Hussein, using 9/11 as an excuse, even though NO RELEVANCE between the two had been shown. This was more about cleaning up the mess left by elder Bush after Operation Desert Storm than it was making an international law statement, as Saddam's capture was used to deflect criticism for an unnecessary invasion of a country. If the United States had wanted to make an international statement which had U.N. backing they could have gone after other high-profile leaders in other countries such as Rwanda and Sudan, two issues which desperately needed light shed on them worldwide and received back-burner treatment.

Saddam’s trial also is not deserving of the title because it is, for all intensive purposes, one wrought with unfairness and inequalities against Saddam and his defense team. As Ms. Sadat notes, the judges chosen for the trial were chosen by the United States and the media suggests that they are all Kurdish or Shiite, the two main ethnicities at the core of Saddam’s alleged genocide campaign. There are more problems, however, as the funding for the two sides is massively imbalanced, with the funding for the prosecution being driven by the United States, as well as the fact that the defense team for Saddam is not given U.S. military protection, putting them at risk every time they set foot outside the courtroom. Perhaps the most telling imbalance which destroys any notion of this being a statement trial is the fact that the trial does not have a sense of there needing to be guilt proven beyond a reasonable doubt. This gives the trial a show-like feel, where the viewer already knows the outcome but is still morbidly interested in how it unfolds, and allows for Saddam to be displayed as a martyr figure because of the overwhelming disadvantages he faces in the courtroom.

For these reasons, the trial cannot be considered as the trial of the century and must be looked at as possibly sending a mixed at best message that in future international cases leaders can be tried by ad hoc courts given special jurisdiction and standards for what we consider the foundation of the legal system, that is, innocent until proven guilty beyond a reasonable doubt, could be in jeopardy.

Posted by joe reiben (email) on 04/02/2006 @ 07:07 PM

Can anyone follow up on the status of transcripts of the trial?

Are the proceedings being transcribed at all, by the court?

If so, are any part of them being released to the public?

To journalists covering the trial, did any of you hire translators who do shorthand and are taking verbatim notes of the proceedings? (as court transcribers used to do before the shorthand machines and tape recorders.) Thank you.

Posted by jane (email) on 01/15/2006 @ 02:06 PM

Yowsa! WashingtonPost columnist Charles Krauthammer SLAMS the Saddam trial, IST and its judges, read the whole thing here:

Here's one excerpt:

There hasn't been such judicial incompetence since Judge Ito and the O.J. trial. We can excuse the Iraqis, who are new to all this and justifiably terrified of retribution. But there is no excusing the Bush administration, which had Hussein in custody for two years and had even longer to think about putting on a trial that would not become a star turn for a defeated enemy.


Posted by dwgelbman (email) on 12/09/2005 @ 09:58 AM

Following up on similar comments - "security" for who? It's cute that a "complete" video record will be made for historians to study in the coming years.

Why not letting the world's public see and hear what's going on in there right now - in real time? Is there something that might upset the USA before their next elections?

An informed populace is a dangerous thing!

Posted by Kammie (email) on 12/06/2005 @ 09:08 AM

Concerning Murphy's comments:

What about potential information regarding Saddam's relationships to previous American administrations and/or businesses? Is the lack of transcript or live broadcast an effort to quash damaging or embarassing information that Saddam might try to make public? Are US and International officials afraid the dictator may shed light on embarassing or treasonous relationships? - illegal buying and selling, the progession of events leading to war, etc. The lack of even a partially classified transcript does nothing but detract from the legitimacy of the trial and the transition into a Democratic Iraq.

Hussein is so clearly guilty of multiple crimes against humanity, I find it disturbing and deeply suspicious that so much effort is undertaken to silence these proceedings.


Posted by Alex on 11/28/2005 @ 03:48 PM

We should honor the lives of every victim during 1982 and beyond by bringing everyone who was responsible to justice. Including, the leaders of nations like the US who armed Saddaam while they were aware of human rights abuses. If they go unpunished, and only one man is sent to trail, then we fail as a global society to truely honor the dead.

Posted by Brian Yaw (email) on 10/19/2005 @ 04:40 PM

«a twenty minute delay to take care of security concerns»
The security of who? It is only made to ensure the security of the witnesses or of the men that have put him in place: the USA's CIA?
Who's controlling that and can't this be considered as censure?

Thank you.

Best regards,

Posted by Sensi (email) on 10/19/2005 @ 02:34 PM

Dan Murphy and Carlos Hamann, two reporters covering the Saddam Hussein trial in Baghdad have asked how press access to the Saddam Hussein trial compares with other international war crimes trials. First, I understand from people that I've recently spoken to at the Regime Crimes Liaison Office, and at the NSC, that two dozen foreign journalists have been given places through a lottery to attend the first day of the trial. Further, there will be a video record made of the entire trial to ensure that there is a historic record for historians to study in coming years. In addition, it looks like the trial will likely be televised on a daily basis, with possibly a twenty minute delay to take care of security concerns, and the faces of the judges and witnesses distorted for their safety. This is a decision the judges will make the first day of the trial. For historic comparison, journalists attending the Yugoslavia Tribunal in The Hague, or the Rwanda Tribunal in Arusha, are not permitted to use video or tape recording devices either. The Yugoslavia and Rwanda Tribunals release footage to a media pool for broadcast, but this is not normally done on a gavel to gavel basis. Because English is one of the official languages of the Yugoslavia and Rwanda Tribunals, the proceedings are simultaneously translated into English by Tribunal staff. As Arabic is the only official language of the IST, there will not be such simultaneous translation as part of the proceedings, and it's not clear yet who will ultimately provide the English translation of the trial proceedings, the IST or the media pool.

Michael Scharf

Posted by Michael Scharf (email) on 10/16/2005 @ 10:14 PM

I'm also a reporter in Baghdad set to cover Saddam's trial in three days, and I'd like the panel of experts here to comment on Dan's question. Many thanks, Carlos Hamann

Posted by Carlos Hamann (email) on 10/16/2005 @ 12:14 PM

Hi -- This is only tangentially related to the original post, which i enjoyed. But as a reporter in Baghdad, I'm quite frustrated. As it stands now, there will be no transcripts of the trial made in any language (i.e. no stenographer). As it stands now, there will be be no television or radio coverage of the entire proceedings. As it stands now, there will not be profesional simultaneous translation (the press will have to provide their own translators). And, as it stands now, tape-recorders are banned from the courtroom, so there will not be a complete, incontrivertible record of all that is said and done.

Is this common for a trial of this stature? What will the absence of a complete record mean to the "historic" nature of this trial? Certainly seems a loss to future, scholars, at least, and also increases the likelihood, as hard as we try to get it right, that some errors and distortions will creep into the press coverage. Isn't it a concern that the iraqi people will not be able to see this trial, unvarnished and direct, on television?

If anyone has any information or thoughts on these issues, i'd appreciate any feedback, either here or too my email.

Posted by Dan Murphy (email) on 10/10/2005 @ 07:27 AM

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