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Experts Debate the Issues: The Anfal Trial

August 21st, 2006

Anfal Issue #2: Will Saddam Live to Hear the Verdict in the Anfal Trial?

Maybe – by Kevin Jon Heller

Cite as: Michael P. Scharf, Gregory S. McNeal & Brianne M. Draffin, A Teacher's Guide and Supplement to Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 10 (2007).

In his excellent and provocative post on the Anfal trial (#37), Michael Scharf says that “(s)ince the Anfal case is scheduled to begin immediately after the close of the Dujail trial (while the Dujail verdict is being appealed to the Appeals chamber of the IHT), this means that whatever the Dujail verdict, Saddam Hussein will be available to face his accusers in the Anfal trial.” A close examination of the relevant Iraqi law, however, indicates otherwise. Saddam may well live to see the Anfal trial, which is scheduled to begin today, August 21st – but if he does, it will almost certainly be because of politics, not law.

The IHT Trial Chamber is expected to deliver its verdict in the Dujail case on October 16th. Assuming that Saddam is sentenced to death – a safe assumption – that verdict would be automatically reviewed by the Court of Cassation; Paragraph 254(A) of the Iraqi Code of Criminal Procedure (ICCP) specifically provides that “(i)f the Criminal Court has issued a sentence of death or life imprisonment, it must send a file on the case to the Court of Cassation within ten days of the issue of the judgement, so that it can be reviewed for cassation, even if an appeal has not been lodged.”

The Court of Cassation would thus have Saddam’s case file by October 26th. It would not, however, immediately begin its review. ICCP ¶ 254(B) provides that “(t)he Court of Cassation accepts statements submitted by the accused and those involved in the case before it issues its decision.” The ICCP is silent on how long the defense and the prosecution would have to submit those statements, but it is reasonable to assume that they would be due within 30 days of the Trial Chamber’s verdict – ICCP ¶ 252(A) requires all petitioners to the Court of Cassation (prosecution and defense alike) to file their petitions within that time-frame.

At the latest, then, the Court of Cassation would begin its review of the Dujail verdict on November 16th. It is impossible to know precisely how long the Court would take to complete its review; Iraqi criminal law does not impose a time limit. There is no reason to believe, however, that the Court’s deliberations would be protracted; indeed, the Chief Prosecutor in the Dujail case, Jaafar al-Moussawi, has told Newsweek that because the Court has no backlog of cases, the review “would only take days.”

Even if al-Moussawi is being overly optimistic, the Court of Cassation should reach a decision by the end of 2006. At that point, assuming that the Court upheld Saddam’s death sentence, the judgment would become final not long after January 31, 2007 – ICCP ¶ 266(A) gives the convicted person 30 days to request correction of a legal error in a Court of Cassation decision.

Once Saddam’s death sentence became final, it would have to be carried out within 30 days. The IHT Statute is explicit on this point: Article 27(2) provides that “(t)he punishment must be executed within 30 days of the date when the judgment becomes final and non-appealable.”

Even a generous interpretation of Iraqi criminal law, in short, leads to the conclusion that Saddam would be executed no later than March 1, 2006 – little more than six months after the Anfal trial began. That simply is not enough time to complete the Anfal trial, which Michael Newton has described as “an ambitious undertaking that would stretch the resources and capacity of almost any judicial body around the world.” His assessment is sound; the Anfal trial includes charges of genocide in addition to war crimes and crimes against humanity, and genocide – to quote Michael Scharf – is “the worst crime known to humankind, and… the hardest crime to prove.” Indeed, the much less complicated Dujail trial will have lasted more than ten months by the time the Trial Chamber hands down its verdict.

The conclusion is thus inescapable: if the IHT follows the law, Saddam will not live to see a verdict in the Anfal trial. There is more than a touch of irony in this; although ICCP ¶ 286 traditionally gave the President of Iraq the authority to commute a death sentence, that provision was superseded by Article 27(1) of the IHT Statute, which specifically provides that “(n)o authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.” By enacting Article 27, the Iraqi government not only placed Iraq in violation of its obligations under Article 6(4) of the ICCPR, which requires States to guarantee that “(a)mnesty, pardon or commutation of the sentence of death may be granted in all cases,” it eliminated the one legal mechanism that it could have used to avoid executing Saddam prematurely.

None of this, of course, means that we will never see a verdict in the Anfal trial. But it does mean that, if we do, it will be because the IHT decided that justice for Saddam’s Kurdish victims was more important than the rule of law. An understandable trade, to be sure – but one that would bode ill for the future of the Iraqi judicial system.

Posted @ 8:59 AM | Experts Debate the Issues: The Anfal Trial

 

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A VALEDICTION FOR SADDAM HUSSEIN


Dedicated to President Saddam Hussein, to his daughters Raghad, Rana and Hala and to everyone who loves him


I see vultures already circling
over a lonely patch of earth.
I see vultures scheming,
vultures briefing,
vultures in back rooms,
vultures in suits.
Eyes glistening with malice
they call you evil;
gleefully knotting your noose
they call you cruel.
Painted sepulchres!
The stench of death
precedes them.

I see grown men weeping
and women tearing their hair;
I see a procession of children,
their heads bowed,
their cheeks stained with tears.
They are mourning the brown lion
who was their pride and joy,
the brown lion
who was fierce
in defence of their honour,
yet tenderly nestled his head
in their lap.

I see you dear face,
your captivating smile,
the poignant radiance of your being
undimmed,
even as vultures darken the sky.
I see your soulful eyes,
your expressive hands,
your dignified bearing –
unbowed in captivity,
faithful to your nation
and true to yourself
to the last breath.

Ecce homo!
I see a doomed man,
a living martyr,
flesh of my flesh
and bone of my bone.
The quality of your presence
resonating
deep in my heart,
I see a guardian angel
sheltering your soul
under his wing.
May he carry you home safely
and gently heal the wounds of sin,
my dearly beloved,
my soul brother,
Saddam.


Alison Gundle (Leicester, UK)


December 2006

Posted by Alison Gundle (email) on 12/27/2006 @ 09:49 AM

Amazing to me how Saddam addresses "Iraqi ladies" when by all accounts his two sons were sociopathic rapists of the worst order. Give them credit, though, for at least they went out fighting, unlike dad. I'd venture to guess that those tribes supporting pops out in Anbar weren't forced to send their daughters to any of Uday's parties.

Saw Saddam's daughter in the lobby of a posh hotel in Jordan not too long ago while I was in the region on business. Surrounded by a group of men in cheap suits (including, I think, one of Saddam's "international lawyers"), she was adorned in gaudy gold rope necklaces and was totally overpainted but generally well-dressed. Laughing up a storm, she didn't seem to be suffering all that much.

I don't know much about international criminal justice, but I know bad lawyering when I see it. That defense team is just awful - the American ones (Clark is one I believe) should be reported to the bar, or the psych ward. If anything, I find that court lacking in credibility because they've not thrown the lot of them in jail for contempt. No other court would tolerate that kind of malpractice, and it reflects very poorly on the Iraqis that they do.

Posted by International Commercial Attorney (email) on 10/31/2006 @ 11:36 AM

Here is a translation of the OPEN LETTER FROM PRESIDENT SADDAM HUSSEIN TO THE IRAQI NATION, which he dictated to his lawyer on 14th October 2006:

In the name of God, the merciful, who gives us patience and takes our souls as Muslims.

To our great nation, to honourable Iraqi ladies, to the heroes of our armed forces, to our glorious nation: peace be upon you, God’s mercy and blessings.

To our friends around the world; to everyone who embraces the principles of fraternity and equality in human relations and rejects superiority, exploitation and discrimination: peace be upon you, God’s mercy and blessings.

On the occasion of the month of Ramadan, which this year finds our people facing the most difficult situation in their history: having been exposed to injustice, aggression and embargo since 1991, they are now enduring the even greater hardships of occupation, bloodshed and the looting and destruction of everything that is necessary for life. And yet they still hold on to their faith and their pride, which make them reject humiliation, conspiracies and aggression both from neighbouring and faraway countries. Some of the invaders came across the Atlantic motivated by cowardly and perverse Zionist ambitions, illegitimate interests and aggression. Others came from the East with their usual bad intentions.

Brothers, you know that I am free in my thoughts and opinions, but because I am detained by the invading forces I have only very limited opportunities to express my sentiments and my will, and in particular to communicate with you Iraqis through the media. I only managed to address you on a few occasions during the farcical trial before the microphones were switched off, depriving me of a legitimate opportunity to address the people even as the invaders seek to devour you through the media which they control.

So here I am addressing you today in this holy month of Ramadan, saying:

Resisting the invaders is a right and a duty, and the same goes for those who collaborated with the western or eastern enemy. But I ask you, brothers and comrades in the various factions of the courageous Iraqi Resistance, and you, the proud people of Iraq, to be guided by wisdom and justice in your Jihad and not to succumb to recklessness. Don’t engage in tit-for-tat violence and don’t attack for the sake of attacking when the opportunity arises while you are carrying a gun. I ask you not only to exercise tolerance, but to keep the door of forgiveness open for those who have lost their way, especially if they show some hope of being guided. Remember that it is your duty to save those who have gone astray from themselves and to show them the right path. Keep the door of forgiveness open for everyone until the day of liberation, which is coming soon, God willing.

Victory is close at hand, but remember that your immediate goal is to liberate your country from the invaders and their collaborators. Don’t get diverted into settling accounts - it will only make reconciliation more difficult when the invaders retreat. Remember that after every war there is peace, after every division there is unity, after every separation there is reunion and after all hatred God will return us to familiarity. We share a common humanity and you are one great nation. Our land was the cradle in which the greatest human principles and pure, monotheistic religion were first imbibed before they were transmitted to other civilisations, rescuing them from ignorance and savagery. You are sacrificing your lives for these values today as you did in the past, and above all for the unity of Great Iraq, which transcends ideological differences and group allegiances: that is the guiding light in the heart of each one of us which dispels the forces of darkness.

Brothers, when I speak to you, my heart and my tongue recoil from the terms and categories used by the foreigners to sow dissension among you. Such differences never divided Iraqis in the past. We all remember an Iraq that was resplendent in all its beautiful colours. Great Iraq encompassed Arabs and Kurds, different religious denominations and minority communities – we were proud to be one nation.

Dear brothers, you have been oppressed by the invaders, their followers and associates, so don’t oppress anybody, otherwise your cause will cease to be just in the eyes of God and you will be easy prey for opportunists who seek to distort your struggle. It would be a terrible loss if that were to happen. When you achieve victory, remember that it is God’s victory and that you are his soldiers. Therefore you must be truly magnanimous and set aside any thought of revenge over the spilled blood of your sons and brothers, including the sons of Saddam Hussein. Remember what the merciful prophets taught us, especially the two honourable ones, Mohammad and Jesus, son of Mary. Both forgave and turned to God, beseeching him to forgive those whom they had forgiven, including those who had hurt them. Don’t forget that Mohammad forgave the pagans in Mecca after he had accomplished victory. I know the heart of the freedom fighter and his love for his country and his people which is second only to his love of God. I expect you to heal wounds and not to inflict new ones.

Brothers, after you have forgiven those who wronged you, act to apply the law fairly and firmly so that your nation can enjoy the blessings of stability and security, so that culture, science and law can flourish and you can lead peaceful, happy lives.

In this glorious month of Ramadan I say to you that I recognise no authority above me except for God and the truth. You know very well that Saddam Hussein never surrendered to any threats. He is as you knew him and he remains as you knew him.

God is great…Glory to God, to our nation, our people and the Mujahideen…

Long live Iraq…Long live Palestine…Long live our glorious nation and our peace loving people. God is greater.

Saddam Hussein
President of Iraq and Commander in Chief of Iraq’s Mujahideen Armed Forces


POSTSCRIPT / COMMENT:
That God works in mysterious ways is demonstrated by the fact that it has fallen to Saddam Hussein, no less, to remind us of a profound truth that we ignore at our peril, namely that only FORGIVENESS and reconciliation can bring lasting peace and genuine healing. Vengeance and retribution –the invariably one-sided settling of accounts – may bring temporary catharsis, but only at the price of diminishing our own humanity and deepening the estrangement that is at the root of all conflicts. The same can be said of political trials that are driven by vindictiveness and malice like this one. I have long believed that the only solution to the tragedy unfolding in Iraq is a comprehensive US withdrawal combined with a genuine reconciliation process that includes the underground Ba’ath Party.


Posted by Alison Gundle (email) on 10/30/2006 @ 09:20 AM

SUPPORT FOR SADDAM CONTINUES TO BUILD:

Yesterday about 500 tribes’ chiefs gathered in Kirkuk openly and declared their loyalty to Saddam Hussein; some leaders of Ba’ath party participated in the meeting - this is the first time since the occupation Ba’ath party leaders appeared openly in public.

Source: ROADS TO IRAQ: http://www.roadstoiraq.com (17th October)

<<This gathering is to unify the Arab tribes in the face of the occupation and its agents and to struggle against those who would divide the Iraqi people,>> said Abu Bassem, who said he was a Baath leader.

Supporters waved portraits of Saddam and called for his release, calling him the legitimate president.

Saddam himself appealed for the insurgency to be <<just and fair>> to the Iraqi people, in a note delivered by his lawyer Khalil al-Dulaimi on Monday.

<<Resistance against the invaders is a right and a duty,>> he wrote. <<Do not forget that your goal is to liberate your country from the invaders and their followers and is not a settling of accounts outside this goal.>>

Source: MIDDLE EAST ONLINE: http://www.middle-east-online.com/english/iraq/?id=17868 (16th October)

In his OPEN LETTER (14th October) addressed to <<honourable Iraqi ladies, to the heroes of our armed forces, to our glorious nation>> , Saddam Hussein calls on his brothers in the Iraqi Resistance to exercise tolerance and forebearance towards those who lost their way under foreign occupation:

<< Remember that after every war there is peace, after every division there is unity, after every separation there is reunion, and after all hatred God will return us to familiarity. We share a common humanity and you are one great people…made up of Arabs, Kurds and various religions and communities.>>

<<Dear brothers, you have been oppressed by the invaders, their followers and associates, so don’t oppress anybody…When you achieve victory, remember that it is God’s victory and that you are his soldiers. Therefore you must be magnanimous and set aside revenge over the spilled blood of your sons and brothers, including the sons of Saddam Hussein. Remember what the prophets taught us, especially the two honourable ones Mohammad and Jesus, son of Mary. Both forgave and turned to God, beseeching him to forgive those whom they had forgiven, including those who had hurt them. Don’t forget that Mohammad forgave the pagans in Mecca after he had accomplished victory….I expect you to heal wounds and not to open new ones.>>

A translation of Saddam Hussein’s letter by Roads to Iraq (17th October) is posted on various websites including Uruknet.com and Albasrah.net. Excerpts were also published in the Boston Herald: http://news.bostonherald.com/international/view.bg?articleid=162607

Posted by Alison Gundle (email) on 10/23/2006 @ 07:36 AM

TRIBAL LEADERS INSIST SADDAM BE RELEASED

By Amit R. Paley and Saad Sarhan
Sunday, September 3, 2006

Source: The Seattle Times.
First published in The Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2006/09/02/AR2006090201032.html?nav=rss_nation/special

BAGHDAD, Sept. 2 -- A coalition of 300 Iraqi tribal leaders on Saturday demanded the release of Saddam Hussein so he could reclaim the presidency and also called for armed resistance against U.S.-led forces.

The clan chieftains, who were mostly Sunni Arabs and included the head of the 1.5 million-member al-Obeidi tribe, said they planned to hold rallies in Sunni cities throughout the country to insist that Saddam be freed and that the charges against him and his co-defendants be dropped…

<<If the demand is not carried out, we will lead a general, sweeping and popular uprising,>> said Sheik Wassfy al-Assy, brother of the chief of the Obeidi tribe, which hosted a meeting of the clan leaders in Ramal, a village 55 miles southwest of Kirkuk. <<As for whether Saddam will be reinstated in his post as president after his release, that will be up to him.>>

Posted by Alison Gundle (email) on 09/05/2006 @ 04:08 AM

Not so long ago, in his post on Issue 41, Professor Heller compiled a damning dossier of due process violations committed by the IST / IHT and the American authorities who supervise it both before and during the Dujail trial. One might therefore reasonably expect him to be making the case for a retrial or for the transfer of Saddam Hussein’s case to a venue where the rights of the defendant would be better protected. Instead one finds him arguing that the rule of law will only be upheld if the death sentence in a trial which he acknowledges was unfair is carried out expeditiously. That the law in question contravenes the International Covenant on Civil and Political Rights (ICCPR), just as the trial did, not to mention the dubious legal status of IST /IHT itself, is apparently beside the point as far as Professor Heller is concerned.

I also find it rather disconcerting that Professor Heller does not pause to consider the implications of charging a person with genocide and then executing him before he has had a chance to defend himself. And obviously a proper defence could only be mounted in a context in which international standards of due process are guaranteed, something which Professor Heller knows to be lacking in the case of the IHT.

Of course, the timing of Saddam Hussein’s execution will be decided by the Director of the so-called Regime Crimes Liaison Office in consultation with Ambassador Khalilzad and his political masters in Washington. If Saddam lives to see the verdict in the Anfal trial, it will not be out of concern for the innocent casualties of that military campaign, but will rather reflect Washington’s stubborn desire to extract political mileage from what is already a failed and increasingly counterproductive enterprise. One of the two main aims of the US-sponsored trial of Saddam Hussein, the retrospective justification of an unprovoked war of aggression, is clearly no longer attainable – the consequences of the invasion and occupation of Iraq have simply been too ruinous. A secondary and related aim, which the Dujail trial failed to achieve, was to publicly humiliate and disgrace Iraqi President Saddam Hussein, to discredit the Arab (and Iraqi) nationalist ideals and aspirations that he embodied, albeit in a manner that was tragically flawed, and only then to eliminate him physically. This cynical and vindictive strategy, apart from being morally repugnant, no longer serves any meaningful purpose in view of the collapse of America’s own standing in the Arab and Muslim world and the expansion of Iranian influence to fill the vacuum created by the destruction of the Iraqi state.

US advisors involved in the orchestration of Saddam Hussein’s trial have given mixed signals about the timing of his execution during the last few months. Professor Heller refers to the scenario envisaged by Michael Scharf in his essay on the Anfal trial (Issue 37) posted in April. Likewise anonymous RCLO officials told John F. Burns of the New York Times in the Spring that the Dujail trial would be automatically appealed and that the appeals process would be strung out for as long as necessary in order to complete one or more further trials in accordance with the agenda of the Bush administration. However, it is worth noting that Michael Scharf took a different line two months later in his post on Issue 40, when he suggested that the death penalty in the Dujail trial would preclude further proceedings against Saddam. More recently anonymous US officials have raised the ominous, not to say outrageous, possibility that Saddam could be tried and convicted of genocide posthumously. I am also struck by the fact that the blurb about the forthcoming symposium on the Saddam trial to be held at Case Western Reserve University on October 6th refers to the IHT in the past tense. The wording of the agenda also seems to imply that the Dujail trial was THE Saddam trial.

For his part, Prosecutor Jaafar al-Moussawi apparently expected the verdict in the Dujail trial to delivered in August although it had been clear for some time that RCLO officials and their political masters were determined to get the genocide charge in first. The fact that the Dujail trial has been adjourned for three months rather than one month as originally mooted by US officials, makes it look as if the latter are intent on making headway with the Anfal trial before eliminating Saddam.

Regardless of these mixed signals, which may well reflect conflicting pressures and calculations behind the scenes, I have little doubt that US officials will string out the review process for as long as they see fit – not a day more and not a day less! – before giving their Iraqi clients the green light to execute Saddam.

Posted by Alison Gundle (email) on 08/30/2006 @ 04:57 AM


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