Issue #41: Did the Dujail Trial Meet International Standards of Due Process?

While Far from Perfect, the Saddam Trial Was Not Fundamentally Unfair
By Michael P. Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 162 (2006).

Introduction

According to an old adage, where one sits determines where one stands. As someone who helped train the Iraqi High Tribunal’s judges, I acknowledge that my writing might naturally reflect an inclination to view the Tribunal sympathetically. In contrast, the writing of many critics of the Tribunal appears shaped by a desire to discredit the institution at every turn as a way of saying: “See, we told you so; Saddam should have been tried by an international tribunal, not an Iraqi court!”

We should not be surprised that expert commentators would have such divergent perceptions of the job the Iraqi High Tribunal has done in its first trial. After all, every major war crimes trial, from the Nazis at Nuremberg to Slobodan Milosevic at The Hague, has been vehemently lambasted as unfair by critics. For an eye-opening example, one need look no further than Senator Robert Taft’s 1946 derisive remarks about the (now venerated) Nuremberg Tribunal, which were reproduced in John F. Kennedy’s Pulitzer Prize-winning 1956 book, “Profiles of Courage.”

Unique Challenges

Moreover, due to the defense tactics in this case, the challenge of ensuring a fair trial while at the same time maintaining order in the courtroom was enormously daunting. Saddam’s chief lawyer, Khalil al-Dulaimi, gave an interview to the New York Times a few days ago in which he explained the unusual defense strategy. According to al-Dulaimi, the defense was convinced that Saddam would be found guilty and that Saddam’s best chance was to use the proceedings to inflame the insurgency and to stretch the trial out as long as possible, so that in the end the United States would agree to set Saddam free in return for his help in restoring peace to Iraq. See Edward Wong, “Hussein Thinks He Will Get Death Penalty but Sees Escape Hatch, His Lawyer Says,” New York Times, June 25, 2006, at 6.

What would even the most distinguished American jurist do, if faced with a defendant and his lawyers whose trial strategy was to be as disruptive as possible, provoke the judge at every opportunity, and continuously attempt to turn the trial into political theatre? For an answer, one need only turn to the recent proceedings against accused al-Qaeda terrorist Zacarias Moussaoui, who was thrown out of court by U.S. District Judge Leonie Brinkema four times in one day, and then temporarily banned from returning to court, due to his disruptive and belligerent outbursts. Newspapers reported that the consensus of legal experts was that Judge Brinkema acted appropriately; in contrast, critics of the Iraqi High Tribunal decried that Judge Ra’ouf Abdel-Rhaman violated international fair trial standards when he did the same exact thing.

Harmless Error

What was truly amazing about the Saddam Trial is that it was televised gavel-to-gavel in Iraq, and the international media broadcast daily highlights with translations. This means that observers around the world had the chance to watch justice unfold over 35 trial days in Baghdad, warts and all. It is worth stressing that few countries in the world have had the courage to go to such lengths to ensure transparency of judicial proceedings, including the U.S. Federal Courts which continue to this day to ban cameras from criminal trials. True, this was among the messiest trials in history, and many mistakes were made for all to see – and for TV commentators including many of our expert Bloggers to dissect. But as the United States Supreme Court has often said: “We do not live in a perfect world, and a criminal defendant is not guaranteed a perfect trial, just a fair one.” Bruton v. United States, 391 U.S. 123 (1968).

In assessing whether the Iraqi High Tribunal’s errors and missteps resulted in a miscarriage of justice, it is significant that the Dujail trial (much like the Nuremberg trial) turned out to be based almost entirely on the Ba’ath Regime’s own documents, whose authenticity was proven in court and confirmed by the statements of Saddam Hussein in his infamous “I am responsible” testimony in court on March 1, 2006. If Saddam is convicted on the strength of these documents, even an American court would likely dismiss Professor Kevin Jon Heller’s catalogue of alleged judicial blunders (see his essay below) as “harmless error.”

Not an American Court

But we also have to keep in mind that this is not an American court. Although the Iraqi High Tribunal Statute and Rules adopt the fundamental due process safeguards enumerated in Article 14 of the Covenant on Civil and Political Rights, they also make clear that the Tribunal is to be governed by Iraqi Criminal Procedure, which is based on the civil law model prevalent in the Middle East. While we may not be accustomed to a system that does not provide for disposition of preliminary motions until the final Judgment, that allows the defendant to conduct cross examination along side his lawyer, or that issues a detailed charging instrument at the end of the prosecution’s case -- that does not mean the IHT process violates international fair trial standards.

Take, for example, Professor Heller’s assertion that the trial is unfair because the Tribunal’s Statute does not require the Court to find Saddam and his co-defendants guilty “beyond a reasonable doubt.” Instead, Article 19 of the IHT’s Statute merely provides that “the accused is presumed innocent until proven guilty before the Court.” Although the Statute does not spell out the test for proving guilt, the Statute must be read together with the Iraqi Criminal Code and practice, under which a Judge must be “satisfied of a defendant’s guilt” -- the traditional standard which civil law judicial systems (like France and Holland) employ, and a phrase that the IHT judges told me is functionally equivalent to the American “beyond reasonable doubt standard.” It should also be noted here that the U.S. Supreme Court has refused to define what “beyond reasonable doubt” means and has held that American courts do not have to provide any definition of this amorphous phrase in their instructions to a jury in a criminal case. See Victor v. Nebraska, 511 U.S. 1 (1994).

Moreover, “different” does not always mean “worse.” Indeed, in one important respect, the Iraqi High Tribunal improves upon the American judicial model: The IHT Statute requires the Court to produce a written reasoned opinion, explaining in detail the factual and legal basis of its judgment – something that is not required of an American jury verdict which emerges from a proverbial “black box.”

Allegations Based on Misleading Press Reports

Reading Professor Heller’s essay, I was reminded of how inadequate and at times misleading the reporting has been about this trial in the major newspapers. For trial details, I watch the daily proceedings via Court TV’s Webcast, I read English translations of Middle Eastern newspapers which devote a great deal of space to the proceedings, and as a reality check, I talk to the Department of Justice trial observers in Baghdad. Here are but a few examples of Professor Heller’s factual misconceptions:

-- Professor Heller is critical of Judge Ra’ouf Abdel-Rahman’s decision to eject a number of defense attorneys for disruptive conduct, and to replace them with attorneys from the Tribunal’s Defense Office, who Heller asserts were incompetent and unprepared. In fact, in January of 2006 the Court ejected only one attorney, after he screamed at the court and insulted the Chief Judge, and one defendant, Barzan Al-Tikriti, who called the Court “the daughter of a whore.” The remaining defense attorneys, over Judge Ra’ouf’s orders, walked out of Court, abandoning their clients (in a death penalty case) without excuse, and refused to return unless the Court acceded to a set of unreasonable demands including recognizing Saddam Hussein as the President of Iraq. During their boycott, Judge Ra’ouf continued the proceedings with IHT Public Defenders. Not only did the Public Defenders vigorously cross examine witnesses (some press reports said they did a far better job than the retained lawyers), but they were assisted by an international law adviser at all times. Moreover, these Public Defenders were intimately familiar with the trial as they had sat in court every day, reviewed the investigative file before trial began, witnessed the proceedings as they unfolded and remained prepared to step into court at a moment’s notice should the privately retained defense attorneys prove unable or unwilling to defend the interests of their clients. There was no preordained decision to eject the privately retained attorneys from the Court and to replace them with IHT Public Defenders, as Professor Heller asserts. The privately retained defense attorneys voluntarily walked out of the courtroom and the Court did what was necessary to keep the trial on track and at the same time protect the defendants—by immediately appointing competent counsel who were prepared to defend their clients in full accordance with Iraqi and international law.

-- Professor Heller writes: “The Court refused to allow the defense to enter a video that allegedly showed the Chief Prosecutor [Ja’afar"> at a 2004 ceremony in Dujail with several individuals who later became witnesses for the prosecution.” In fact, the Tribunal did permit the Defense to play this video in court and allowed three defense witnesses to testify that the man in the video offered them money to testify against Saddam. After this video was shown, the Prosecution brought the person who was actually shown on the tape, which the defense team had alleged was Prosecutor Ja’afar, into open court. Everyone present, including the defense attorneys, immediately grasped that, despite some resemblance, Prosecutor Ja’afar was not the person shown on this video tape. Those following the proceedings closely got to see the defense counsel profusely apologizing to the Court for this misunderstanding, acknowledging that the testimony that Ja’afar had tried to bribe the witnesses was clearly false.

-- As a final example of the disconnect between reporting and reality that underlies Professor Heller’s conclusions, Professor Heller criticizes Judge Ra’ouf for arresting three defense witnesses for perjury after they testified that they personally knew some of the 1984 Dujail Trial execution victims, who they claimed were actually still alive and well in Iraq. Heller adds that two of these witnesses, who have since fled Iraq, told the Associated Press that they were beaten in detention to make them confess that they had lied to the Court. Heller fails to point out, however, that during these witnesses’ testimony, Judge Ra’ouf asked the three whether they could (without the aid of a written piece of paper which they had carried into the witness box) state the names of any of the alleged victims who had not actually been executed. When the witnesses could not, Judge Ra’ouf asked them whether they could write the names on a piece of paper which was separate from the one they carried into court. When the witnesses could not do that either, Judge Ra’ouf asked them to see the list of names which they each were carrying. When presented with the lists, Judge Ra’ouf asked the witnesses whether the names on the list were written in their own hand. All three witnesses admitted in open court that another source had given them the lists of names. They were imprisoned for perjury after, not before, they freely made this admission.

A more thorough rebuttal of Professor Heller’s numerous contentions is warranted but space limitations prevent me from doing that here. Suffice it to say, the trial is not over and much (including closing arguments, judgment, and appeal) must occur before one can conclusively opine whether the Dujail trial met international standards. But just as the IHT must be fair, so too must we be fair in judging the Court.

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Comparing the Trial to International Standards of Due Process
By Kevin Jon Heller

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 155 (2006).

As Saddam’s trial draws to a close – and following the murder of a third defense attorney – it seems appropriate to catalogue the many ways in which the trial has failed to satisfy international standards of due process. Those failures are particularly unfortunate in light of the trial’s historic importance; given that the evidence against Saddam is overwhelming, I am firmly convinced that a perfectly fair trial would be no less likely to result in a conviction.

Iraq is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which guarantees criminal defendants “a fair and public hearing by a competent, independent and impartial tribunal established by law.” According to Article 14 of the Covenant – which is paralleled, in large part, by Article 19 of the IHT Statute – a fair trial requires a defendant be provided, at a minimum, with the following rights:

• To be informed promptly and in detail… of the nature and cause of the charge against him;

• To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing…

• To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing…

• To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

As the discussion below demonstrates, Saddam’s trial cannot be considered fair under Article 14. (Note that some of the points discussed below focus on the IHT in general. Although it is highly likely that most, if not all, of the due-process violations involved Saddam or his co-defendants, not enough information exists to make that claim categorically.)

Uncounseled interrogations.

U.S. investigators interrogated at least thirty high-value detainees, including most of the senior members of Saddam’s regime, before the IHT became operational in December, 2004. At the time of those interrogations, the detainees were not represented by counsel. Although it appears that none of the uncounseled statements made by the detainees were introduced as evidence during Saddam’s trial, it is impossible to know whether those statements led to incriminating evidence – the proverbial fruit of the poisonous tree. Indeed, the Court refused to guarantee Human Rights Watch that it would exclude incriminating evidence so obtained.

Uncounseled court appearances.

Saddam was not represented by counsel during his arraignment, where he was informed of the general accusations against him (though not the formal charges in the Dujail case).

Interference with the attorney-client relationship.

• When the Dujail defendants were questioned by the investigative judge, their attorneys were given no advance notice of the questioning. On most occasions, the attorneys were not permitted to meet with their clients until after the questioning was completed.

• The most senior attorneys at Saddam’s trial were not allowed to visit their clients until after the trial started.

• Saddam’s attorneys were prevented from meeting with him for nearly a month after they were ejected from the courtroom in January, 2006.

• The attorneys for Saddam and his co-defendants were not allowed to meet with their clients in private for nearly two months during trial, including the entirety of the defense case.

• All meetings between defense attorneys and the Dujail defendants were conducted under audio and visual surveillance, and American officials reviewed all the materials the attorneys brought into the visiting room.

• On more than one occasion, a U.S official with knowledge of Arabic was present in the interview room when a defense attorney was conferring with his client.

Appointment of inadequate defense counsel and replacement counsel.

Two of Saddam’s co-defendants have been represented by appointed counsel from the Tribunal’s Defense Office. Those attorneys, who received only one or two training sessions in international criminal law prior to beginning work, have been completely incompetent: according to Human Rights Watch, they “were completely passive in court and did not ask a single question of witnesses, at any session between October 19, 2005, and January 29, 2006.” In addition, one of the attorneys told Human Rights Watch in October 2005 that he had never met with his client, even though he had been appointed a month earlier.

The inadequacy of the attorneys working at the Defense Office also harmed the other defendants. After Chief Judge Abdel-Rahman ejected a number of defense attorneys for disruptive conduct, including one of Saddam’s attorneys, the Court immediately replaced them – over the vehement protests of the defendants – with four new attorneys from the Defense Office. The Court appears to have decided to replace the defendants’ chosen attorneys in advance; according to Human Rights Watch, the replacement counsel were waiting in a room next to the courtroom the whole time. Those attorneys proved little better than their appointed counterparts; during their tenure, they failed to cross-examine at least two prosecution witnesses and conducted sub-standard cross-examinations of the witnesses they did question.

Preventing the defense from monitoring the investigation.

Defense attorneys were not permitted to be present when the investigative judge interviewed witnesses and collected evidence, even though Article 57 of the Iraqi Code of Criminal Procedure permits their presence unless the investigative judge enters into the record an explanation of why counsel’s presence was not permitted. No such explanation has ever been given.

The absence of defense attorneys during the investigative stage is particularly troubling, because Iraqi law provides that the dossier prepared by the investigative judge constitutes substantive evidence of a defendant’s guilt. In this respect, the IHT lags behind international criminal law generally: the ICTY specifically held in Kordic and Cerkez that the wholesale admission of a dossier is inconsistent with the right to a fair trial; instead, the trial court must examine each category of evidence in the dossier, sensitive to the need to guarantee the evidence’s authenticity and to the dangers of admitting evidence not tested by cross-examination.

Limiting defense access to the evidence.

Rule 40 of the IHT’s Rules of Procedure and Evidence specifically provides that the defense is permitted “to inspect any books, documents, photographs and acquire these things, which are material to the preparation of the Defence, and also inspect any books, categories of, or specific documents, photographs and tangible objects in the accused custody or control which are intended for use by the Criminal Court as evidence at the trial.” Nevertheless:

• Less than six months prior to trial, the defense had not been given an official version of the IHT’s Rules.

• The defense was routinely denied access to documents and evidence during the investigative phase, and transcripts of judicial questioning were never made available, despite numerous requests.

• Defense attorneys were consistently denied sufficient time to review the investigative judge’s dossier – and were often been forced to conduct even their limited review in public areas of the court.

• The defense was only provided with the prosecution’s evidence a few days prior to trial, although Rule 40 requires the prosecution to disclose witness statements and all other evidence 45 days earlier – itself a patently insufficient amount of time to prepare a defense to charges of crimes against humanity, which are very factually and legally complex. That violation of Rule 40 was in no way cured by the 40-day continuance granted the first day of trial; by comparison, when the prosecution in Kovacevic introduced 14 new genocide charges against the defendants, the ICTY Appeals Chamber held that a seven month continuance was reasonable.

Failure to notify the defendants of the charges against them.

Judge Abdel-Rahman read the formal charging document at the end of the prosecution’s case. Saddam and his co-defendants are charged with a number of crimes against humanity; the failure to inform them of the charges prior to trial thus significantly limited the defense’s ability to effectively cross-examine the prosecution witnesses.

Preventing the defendants from presenting their case.

• After three defense witnesses testified that some of the 148 Shiites allegedly executed in Dujail are still alive – evidence supporting the defense’s claim that the documentary evidence regarding the events in Dujail could not be trusted – Chief Judge Abdel-Rahman had the witnesses arrested for perjury, along with a fourth defense witness who claimed that the Chief Prosecutor had tried to bribe him to testify against Saddam. The four witnesses later “confessed” that they testified falsely because they were either intimidated by Saddam loyalists or bribed by the defense. Two of those witnesses, who have since fled Iraq, told the Associated Press that they were beaten in detention to make them sign the confessions.

• The Court refused to allow the defense to enter video that allegedly showed the Chief Prosecutor at a 2004 ceremony in Dujail with several individuals who later became witnesses for the prosecution. The video was refused pending a written request, despite the fact that the Court had earlier allowed the prosecution to introduce video evidence with no advance notice.

Failure to rule on defense motions.

The Court has yet to rule on numerous defense motions, many of which were submitted prior to trial. Although some of those motions are likely frivolous – such as the one challenging the IHT’s legitimacy – at least two are not. One is a motion to recuse Judge Abdel-Rahman on the ground that he cannot be impartial toward Saddam and his co-defendants, because he is from Halabja, where 5,000 people died in a chemical attack by Saddam’s forces, and was once the president of a Halabja victims’ society. Rule 11 of the IHT Rules of Procedure and Evidence specifically provide that “[a"> Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any personal association which might affect his impartiality.”

The other motion sought to obtain the complete records of the Revolutionary Court trial that led to the 148 executions – obviously critical evidence, given that the prosecution’s central contention is that the trial was a sham.

The Court has also failed to investigate defense claims that some of the 148 Shiites allegedly executed are still alive, even though Judge Abdel-Rahman ordered such an investigation.

Prejudicial statements by government officials and IHT judges.

• In an interview with Al-Iraqiya before the trial began, Iraqi President Jalal Talabani stated: “I received the investigating magistrate who is in charge of questioning Saddam. I encouraged him to continue his interrogation. He told me good news, saying that he was able to extract important confessions from Saddam Hussein.” Talabani added that “Saddam signed these confessions,” and that “Saddam Hussein is a war criminal and he deserves to be executed 20 times a day for his crimes against humanity.”

• Prior to trial, Abdul Aziz Hakim, head of the Supreme Council of the Islamic Revolution in Iraq (SCIRI), stated in an interview with Reuters that “there is no doubt that Saddam deserves more than just execution ... I am among those who are going to file a complaint for killing 64 members of my family. For these crimes alone he deserves 64 executions.”

• In a 2005 film by Jean-Pierre Krief for Arte France, an IHT judge said that Saddam had “persecuted the Kurds. He killed them, wiped many of them out. He also used chemical weapons with the aim of committing genocide against this race, against this people, to eradicate them as a nation. He also went after the Shiites due to their religious beliefs.”

• In the same film, another IHT judge called Saddam “one of the worst tyrants in history.”

Political interference with the Court.

The original trial judge, Rizgar Amin, resigned after senior Iraqi government officials publicly criticized him for being too lenient with Saddam. Judge Amin cited those comments as one of the reasons for his resignation.

Judge Amin’s replacement, Saeed al-Hammashi, a Shiite, was transferred out of the trial chamber after the De-Baathification Commission claimed that he had been a member of the Baath Party. Not only was Judge al-Hammashi the consensus choice of the IHT judges, the Chief Prosecutor at Saddam’s trial was skeptical of the Commission’s claims and insisted that it produce proof of al-Hammashi’s Baathist past. The Commission refused.

Inadequate standard of proof.

The IHT statute does not require the Court to find Saddam and his co-defendants guilty “beyond a reasonable doubt” in order to convict. Moreover, Paragraph 213 of the Iraqi Code of Criminal Procedure specifically provides that “[t">he court’s... verdict in a case is based on the extent to which it is satisfied by the evidence presented during any stage of the inquiry or the hearing” – obviously a much lower standard.

Failure to provide for the commutation of a death sentence.

Article 27 of the IHT Statute prohibits any government authority, including the President of Iraq, from "grant[ing">" a pardon or mitigat[ing"> the punishment issued by the Court.” The article directly contradicts Article 6(4) of the ICCPR, which provides that "[a">nyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases."

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Looking Beyond Due Process
By Mark A. Drumbl

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 169 (2006).

Michael Scharf and Kevin Jon Heller engage in a vigorous debate whether the Hussein trial, thus far, accords with internationalized notions of due process. I have two responses. First, although this is an interesting debate, what I believe more relevant is to consider the effects of process on the narrative that emerges from the trial. Second, I worry that much of the energies of external observers are caught up in the minutiae of due process and technocratic assessments, instead of looking at a broader picture likely much more relevant to Iraqis. This broader picture involves judging the full record of Saddam's abuses and, further, the relevance of retrospective justice during a tragic period of ongoing violence and injustice.

1. Iraqi High Tribunal judges demonstrate considerable vigilance in controlling the courtroom. On the one hand, tight control is necessary for managerial and bureaucratic reasons, to streamline process, dissipate inflammatory controversy, and preserve judicial authority. The need for such control arises from Hussein's antics, designed to turn the proceedings into farce. On the other hand, though, levels of control that become too tight may strangle the judicial record and thereby incur credibility costs. To the best of my knowledge, the Iraqi High Tribunal judges have not yet formally responded to defense motions that pertain to the Tribunal's jurisdiction and the legality of its creation. Whereas debate over the formation of the Tribunal may be unnecessary, embarrassing, or technical to U.S. officials, this debate may be construed differently by Iraqis insofar as it goes to the heart of the U.S. occupation and continuing U.S. control over important political decisions in Iraq, including the decision to put Hussein on trial and invest large sums of money to that end. This presents a contrast with the ICTY, whose interlocutory opinion on jurisdiction in the Tadic matter * flaws notwithstanding * grappled with the institution’s own legitimacy.

2. As I have previously blogged, Iraqi High Tribunal prosecutors elected to proceed through a series of mini-trials instead of, as had been the case with Milosevic, one overwhelming omnibus proceeding. The first mini-trial involved the deaths, at the hands of the Iraqi state, of 148 residents of the Shiite village of Dujail. Although a grievous act, the Dujail massacre remains a very small part of Hussein's atrocities, which involved the deaths of at least 300,000 Iraqis (exclusive of those who perished in wars conducted against Iran and Kuwait). Notwithstanding that the Dujail proceedings permits the opportunity to judge the Revolutionary Court as a whole for applying the law in the service of oppression, their overall performativity is of relatively modest value. Other Tribunal mini-trials involve a higher-stakes context. This is the case with imminent proceedings related to the Anfal campaign. By proceeding sequentially, Iraqi High Tribunal prosecutors ensure cyclical episodes of gratification and closure. They thereby reduce the risks that long-term proceedings may lead to a deferred all-or-nothing outcome. This is a prudential move. However, it is not without its own drawbacks. It results in a dramaturgical methodology in which the narrative is related through iterated vignettes. Tribunal officials need to be diligent that the digestible parts add up to a compelling, overarching whole. If discontinuous lower-stakes convictions remain narratively fragmented, then the Tribunal may, in the name of prudence, have forsaken the opportunity to leave a hardier historical footprint.

Finally, the choice to prosecute Saddam Hussein (and other defendants) and to showcase this trial as an instrument for transitional justice was made at a time of ex ante optimism about the ability to maintain order in Iraq. At present, however, Iraq is wrought with pervasive insecurity. There are daily reports of bombings, death, and sectarian violence. The Tribunal itself has been plagued by violence. Several individuals associated with the Tribunal (including a judge and three defense lawyers) have been assassinated. Any accountability process must reasonably guarantee the safety of its participants and its audience. Iraqis wonder why so much effort is dispensed to punishing twenty-five year old crimes while such limited effort is dispensed to punish yesterday’s sectarian crimes.

Posted @ 2:28 AM | Experts Debate the Issues: The Dujail Trial