Dujail Issue #44: What to Look for in the Dujail Trial Judgment

What to Look For in the Dujail Trial Judgment
By Professor Michael P. Scharf

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 12 (2007).

The long-awaited first judgment of the Iraqi High Tribunal (IHT) is scheduled to be issued on Sunday, November 5, 2006. According to Article 23 of the IHT Statute, the Trial Chamber’s judgment must reflect a majority decision of the five Trial Chamber judges, it must be issued in writing, and dissenting opinions shall be appended. Whether the IHT process is ultimately viewed as legitimate will be determined largely by the quality and substance of this historic legal opinion. This piece previews the most important issues that are likely to be resolved in the Dujail judgment.

1. Look for the IHT’s disposition of the pre-trial motions challenging the jurisdiction and legitimacy of the Tribunal.

The IHT has been severely criticized for neither conducting preliminary hearings on procedural matters nor producing written opinions on such matters. Presumably these will be dealt with in the judgment of the Tribunal in accordance with Iraqi legal tradition. It will be extremely interesting to see how the Tribunal responds to the Defense arguments that the IHT is not a legitimate judicial body. In particular, the Defense has asserted that the creation of the IHT by an Occupying Power (the United States) violates the Geneva Conventions, while the Prosecution responded by arguing out that Iraqi’s democratically-elected National Assembly subsequently approved the Tribunal’s Statute in August 2005, thereby giving the Tribunal legitimacy. The defense also argued that the prosecution of Saddam Hussein in an Iraqi Court is barred by head of state immunity under Iraqi law, while the Prosecution countered that the Iraqi National Assembly legitimately revoked such immunity by approving the Statute of the IHT in August 2005.

It will also be interesting to see if/how the judgment deals with defense complaints that the Presiding Judge, Ra’uf Abdel-Rhaman, was biased due to alleged past membership in an anti-Ba’athist organization and should have been removed. Similarly, it will be interesting to see if/how the judgment addresses the defendants’ claims that they were physically abused while in custody, as under international precedent such abuse could constitute a ground for dismissal of the case.

The judgment may also address Defense arguments that certain rulings by the IHT denied the defendants a fair trial. Specifically, the judgment is likely to address the propriety of waiting until half-way through the trial to announce the detailed charges, the practice of frequently expelling defense counsel and defendants from the courtroom for disruptive behavior, the use of court-appointed counsel when the Defense Counsel were boycotting the proceedings or were expelled from the courtroom, and the Tribunal’s refusal to permit the Defense to call a number of their remaining witnesses.

2. Look for the IHT’s findings of fact and conclusions of law related to the charges against the eight co-defendants

The Tribunal’s judgment will analyze whether the various acts carried out by the Ba’ath Regime, which were described in the testimony and documents admitted into evidence during the trial, constitute crimes against humanity. These acts included the shelling and strafing of the town of Dujail by helicoptor gunships; the destruction of the town’s homes, water supplies, and orchards; rounding up 399 townspeople, including young children, for interrogation; employing torture and causing the deaths of 50 people during interrogation; ordering 148 people summarily tried en masse before the Revolutionary Court; and ordering all of these people executed after the trial which lasted a single session. To establish crimes against humanity under Article 12 of the IHT Statute, there must be proof of widespread and systematic mistreatment, torture, and/or killings of civilians.

One of the most important aspects of the judgment may be how the Tribunal deals with the issue of document authenticity. The trial turned out to be much more document-based than was anticipated. Some of the most important documents included Saddam’s order for the execution of the Dujail townspeople, and his order that Medals of Honor be awarded to the security forces involved in their apprehension and interrogation. The Defense has challenged the authenticity of these and other documents, and argued that the court-appointed experts who affirmed Saddam’s signature on them cannot be trusted as independent because they all have links to Iraq’s interior ministry. In particular, the defense strenuously argued that the document indicating that Saddam Hussein approved the execution of people under the age of eighteen was forged. Similarly, the judgment will need to address the Defense claims that certain witnesses were offered money and/or threatened with bodily harm by the chief prosecutor to give false testimony.

3. Look for the IHT’s analysis of theories of liability

To justify a conviction, the IHT must explain how each of the eight defendants can be held criminally responsible for the alleged crimes. Under principles of direct responsibility and command responsibility, the IHT is likely to find that Saddam Hussein and his half-brother Barzan Ibrahim (former head of the Makhubarat intelligence agency) are criminally responsible either for issuing orders (to attack the city, to round up hundreds of townspeople for interrogation, to try them before the Revolutionary Court, and to order their execution), or for failing to prevent or punish subordinates for unlawful acts (such as destroying the Dujail water supply, burning down the orchards, and/or torturing and killing the DuJail detainees).

Under the precedent of the Nuremberg-era Alstoetter Case, defendant Awad al-Bandar (the head of Saddam’s Revolutionary Court) might be held responsible if the Tribunal concludes that he ordered the executions of the Dujail defendants knowing that the Dujail trial was patently unfair and that his court was being used as part of a systematic attack against the civilian population of Dujail. The IHT’s judgment will need to address the defense witness testimony that the proceedings before the Revolutionary Court were fair under the circumstances. If it convicts al-Bandar, the IHT will likely spell out in detail those attributes of a fair trial that were lacking in the Revolutionary Court case against the Dujail townspeople. The irony here is that the IHT itself has been accused of violating many of those fair trial principles in the handling of the Dujail and Anfal trials.

To warrant a conviction of the three lesser known co-defendants -- Mizhar Abdullah Ruwayyid, Abdullah Kazim Ruwayyid, Ali Dayih and Mohammed Azawi Ali – the IHT must explain how the evidence proves these informers knew or should have known that a crime against humanity would befall the neighbors on whom they informed. Many experts believe that the IHT will acquit some or all of the lesser known co-defendants.

4. Look for the IHT response to the “war on terrorism defense”

The Tribunal’s judgment will examine the Defense argument that the Defendants’ actions were lawful based on the necessity to combat/suppress the terrorists and insurgents operating in Dujail who tried to assassinate Saddam. Related to this is the question of whether comparisons between the Ba’ath Regime’s actions in 1982 and the way the United States has conducted its current war on terrorism (namely by attacking towns in Afghanistan and Iraq and imprisoning suspects at Abu Ghraib and Guantanamo Bay) are legally relevant. If the Tribunal concludes that such comparisons are legally relevant, look for its analysis of whether American actions are distinguishable from the Bath Party’s actions in terms of necessity, proportionality, and treatment of subordinates who committed crimes. This may well be the most important part of the Tribunal’s judgment. To the extent that it propounds on where the line must be drawn in what a government can legitimately do in responding to terrorism, the IHT precedent will have significance well beyond the situation in Iraq.

5. Look for how the IHT handles the question of the death penalty.

Finally, in the case of convictions, the judgment will address the issue of whether the death penalty is the appropriate sentence for any or all of the defendants, in light of the relative gravity of the crimes charged, the defendants’ position in the hierarchy of power, and their personal involvement in the crimes. Some experts are concerned that a death sentence for Saddam could ignite a full-blown civil war, while others are convinced that the sooner he is “removed from the scene” the sooner peace can take hold in Iraq. Victims groups, on the other hand, do not want to see the death penalty implemented in a way that prevents Saddam Hussein from standing trial and facing his accusers in the ongoing Anfal case and in the Marsh Arab case which is scheduled to begin in 2007. In any event, a death sentence would not be implemented until after the conclusion of the Appeals process, which is likely to take several more months.

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The Trial Chamber’s judgment will not be the last word on these issues, as both the Defense and the Prosecution are entitled to appeal the judgment to the nine-member Appeals Chamber. Under Article 25 of the IHT Statute, such appeals may be based on errors of law, procedure or fact. Notification of appeal must be made within fifteen days of the judgment. Submission of briefs and oral arguments follow thereafter. The decision of the Appeals Chamber may not be rendered until spring 2007.

For more information about the Iraqi High Tribunal, see the new book by Michael P. Scharf and Gregory McNeal, “Saddam on Trial: Understanding and Debating the Iraqi High Tribunal,” which is now available from Carolina Academic Press: http://www.cap-press.com/books/1625 ($27.95 – ships within two days).

Posted @ 11:50 AM | Experts Debate the Issues: The Anfal Trial