Issue #11: Does it make good sense to start with the Dujail case, rather than a greater atrocity like the Anfal campaign?

YES by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 183 (2006).

The Iraqi Special Tribunal has decided to try Saddam Hussein and other former Ba’ath regime leaders in a series of cases, focusing on specific incidents, rather than in one mega trial like the Slobodan Milosevic case before the Yugoslavia Tribunal in The Hague. There are those who question the wisdom of trying Saddam Hussein for the incident at Dujail as the first case before the Iraqi Special Tribunal. After all, only a few hundred people were killed there, and Saddam Hussein stands accused of murdering hundreds of thousands elsewhere. But I believe the decision to start with Dujail was brilliant for three reasons.

First, the evidence for the Dujail prosecution is extremely strong. Eye witnesses (both victims and members of the armed forces) are reportedly available to testify; forensic evidence has reportedly been collected and preserved; and video and documents reportedly exist which prove the atrocity, as well as who ordered it and how it was carried out. And it is far easier to prove the elements of a crime against humanity (the charge in the Dujail case), than the elements of genocide (the charge in the Anfal case).

Second, the Dujail case does not lend itself to as many defenses as the other charges do. If Saddam Hussein’s lawyers argue that his subordinates acted without authority in Dujail, he can still be held responsible under the principle of command responsibility for failing to punish those subordinates for the atrocity. If the defense team argues that Saddam Hussein’s actions were justified as self-defense in response to acts of terrorism, the prosecution can easily prove that his response (razing the town, executing the townspeople, and destroying the surrounding date palm groves) was disproportionate and therefore unjustifiable.

Finally, it makes a lot of sense to begin with a less important and less complex case because it will enable the Tribunal to focus on the broad legal challenges to the process which are brought by the defense. Once these are disposed of in the Dujail case, the principle of res judicata will prevent the Defense from re-litigating them in subsequent trials, enabling the Tribunal to focus entirely on the factual and legal complexities of those more difficult cases.

Posted @ 3:25 PM | Experts Debate the Issues: The Dujail Trial