Essay #23: What happens if the Tribunal finds that Saddam Hussein was in fact tortured by his American jailers?

By Professor Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 134 (2006).

During the fifth day of the Saddam Trial, on December 21, 2005, Saddam Hussein interrupted the proceedings with the shocking claim that he and his co-defendants had been tortured by American prison guards several months before the start of the trial. Although the claim is extremely implausible, Presiding Judge Rizgar Amin wisely indicated that it would be fully investigated before the trial resumes on January 24, 2006.

If the investigation reveals that Saddam was in fact subject to “serious mistreatment” at the hands of his jailers, the Tribunal might have to dismiss the Dujail case and release him. Article 17 of the Statute of the Tribunal (entered into force on 18 October 2005) states that the judges are to be guided by the precedent of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY/R). This issue was addressed by the Appeals Chamber of the Yugoslavia and Rwanda Tribunal in Prosecutor v. Dragan Nikolic: Decision on Defense Motion on Illegal Capture (5 June 2003). In Nikolic, the ICTY/R Appeals Chamber stated that in cases in which treatment of the defendant rises to the level of serious human rights violations (i.e. torture or inhuman/cruel/degrading treatment), the Tribunal must dismiss the case since “it would be inappropriate for a court of law to try the victims of these abuses.” Case No. IT-94-2-AR73, at para. 30. But the Court found that Nikolic’s mistreatment was not serious enough to merit dismissal (he had been abducted in the middle of the night and roughed up but not permanently injured), stating that apart from the most “exceptional of cases,” the remedy of setting aside jurisdiction would “usually be disproportionate” with respect to a defendant charged with crimes against humanity. Id.

If there were acts of mistreatment but they are not serious enough to merit dismissal, they may still lead the court to exclude Saddam Hussein’s incriminating statements. Under Rule 59 of the Tribunal’s Revised Rules of Procedure (adopted October 19, 2005), the Tribunal will rule evidence inadmissible if the statement was not voluntary or if the means by which it was attained casts substantial doubt on its reliability. This is equivalent to how U.S. courts apply the Constitutional due process right in criminal cases. Since it does not employ a jury, the Tribunal will enforce this exclusionary rule the way most European countries do, by prohibiting any mention of inadmissible evidence in the written judgment of the Tribunal, under Rule 58 of the Tribunal’s Rules of Procedure. Thus, the judgment cannot refer to any pre-trial statements that Saddam Hussein provided that are found to have been induced by beatings or other forms of mistreatment, even if it falls short of torture.

There are several factors, however, that make it unlikely that the Tribunal will find that Saddam Hussein was in fact mistreated (seriously or otherwise) by his American jailors. First, American troops were reportedly instructed to exercise the utmost care not to mistreat Saddam Hussein and the other former leaders of his regime, given the grave political consequences that would ensue from any such incident. Second, in the first four days of the trial (October 19, November 28, December 5, and December 20), Saddam Hussein took advantage of the opportunity to freely air his grievances on several occasions, but his sole complaints of mistreatment were that he had not been provided a pen and paper with which to take notes, that he was given only six cigarettes a day (and did not like the brand), that he was required to wear the same suit for several days without a clean change of clothing, and that he was forced to walk up four flights of stairs rather than take an elevator. Had he been subject to acts of torture, he certainly would have mentioned it then, rather than confine his complaints to these minor inconveniences. Third, in the months leading up to the trial, Saddam Hussein confirmed on more than one occasion to the Investigating Judge, Ra’ad Juhi, that he had not been beaten while in detention. According to Judge Ra’ad, had any of the defendants complained earlier of torture or mistreatment, they would have been subject to contemporaneous medical examination to see if such claims could be substantiated. Fourth, Saddam’s claim of torture followed harrowing testimony by victims of the torture endured at the hands of the Ba’ath party. Throughout the trial, Saddam has employed a number of gimmicks in an often successful attempt to distract media and public attention from the impact of such emotionally compelling testimony, including frequent outbursts, yelling at the judge to “go to hell,” threatening to boycott the trial, and insisting on a break for prayer in the middle of a witness’s testimony. Seen in this light, Saddam’s allegations of torture are likely to be found to be no more than another tactic to distract, disrupt, and derail the trial.

Posted @ 5:38 PM | Experts Debate the Issues: The Dujail Trial