Issue #32: What is the Significance of Saddam's Admission?

Hussein: "I'm responsible" -- An Admission of Control but not of Guilt
by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 182 (2006).

Just before the close of the Iraqi High Tribunal's proceedings on March 1, 2006, Saddam Hussein asked to address the Court. Hussein, who was known for the brutal micromanagement style of his role-model, Soviet Premier Joseph Stalin, was apparently uncomfortable with the line of argument the defense was beginning to develop in its cross examinations that day, namely that the abuses at Dujail were the responsibility of subordinates who had acted outside the scope of their orders.

Hussein stood and told the court that he had ordered the destruction of the orchards and homes, and that he had ordered the arrest, interrogation, trial, and execution of the townspeople. " If I hadn't wanted to, I wouldn't have sent them to the Revolutionary Court. But I did," he said of the villagers. "And they were charged according to the law, just like you charge people according to the law …. When the person says he's responsible, why go to others and search? Saddam Hussein was a leader and says, 'I'm responsible.' "

With these words, Hussein proved about one-third of the Prosecutor's case. He proved that he was in effective control of the perpetrators, which is the legal standard required for liability under the principle of command responsibility. He also proved that he ordered their actions, thereby proving direct responsibility. Now, the Prosecution doesn't have to spend time proving the command structure and power hierarchy in the Iraqi Government, and is thus likely to rest its case when the trial resumes on March 12 or soon thereafter.

Perhaps Hussein's psychological makeup (see Jerrold Post's Psych Profile of Hussein on this Website) made it impossible for him to maintain that his subordinates were acting outside his orders or control. He seemed to want the world to know that he was in full control of everything in Iraq during his reign, and that included the actions against the town of Dujail. But his admission of control was not an admission of guilt.

Hussein and his lawyers will still argue during the second phase of the trial that his actions against Dujail were lawful under international and Iraqi law. In doing so, they will make some interesting comparisons to recent American military actions against towns across Iraq and Afghanistan, in which the United States has bombed buildings and rounded up, interrogated, and detained hundreds of suspected terrorists and insurgents. The difference, which the Prosecution will presumably point out during its cross examinations and closing argument, is that the United States didn't round up eight- and eleven-year-old children as Hussein's subordinates did at Dujail; one third of the people subject to interrogation by the United States did not die from torture as they did at the hands of Hussein's subordinates in the 1980s; and the United States never ordered executions without a trial as Saddam Hussein did to the citizens of Dujail.

The submission of the "execution documents" together with Hussein's admission of control represent a major turning point in the trial. With this important point now proven, the media and public's attention has begun to focus on the evidence and legal principles and not just Hussein's antics.


Saddam Can Handle the Truth
The tyrant takes full responsibility for the actions of his government.
by Gregory S. McNeal
As published in the Weekly Standard

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 180 (2006).

On Wednesday, Saddam Hussein made a dramatic courtroom admission reminiscent of the movie A Few Good Men. In the film, young Navy defense attorney Lt. Daniel Kafee (Tom Cruise) needs to prove that Lt. Colonel Nathan Jessup (Jack Nicholson) ordered Kafee's clients to execute a "Code Red" which resulted in the accidental death of a fellow Marine. The order was key to proving that the defendants did not act on their own with the intent to kill and that true responsibility lay with the commander. One piece of dialogue between Kaffee and his co-counsel explains the defense theory:

Kaffee: Our clients followed the order. The cover-up isn't our case. To win, Jessep has to tell the jury that he ordered the code red.

Sam: And you think you can get him to just say it?

Kaffee: I think he wants to say it. I think he's pissed off that he's gotta hide from us. I think he wants to say that he made a command decision and that's the end of it.

Kaffee puts Jessup on the stand, rattles him, and in a dramatic shouting match asks Jessup if he ordered the Code Red. Jessup screams "You're goddamn right I did!" Thus proving a large part of the defense.

Saddam did a similar favor for the prosecution by brazenly admitting command responsibility and setting the stage for the conclusion of the prosecutor's case. The current proceeding, known as "the Dujail case," is the first in a series of trials planned against Saddam and his co-defendants. The charges stem from a failed July 1982 assassination attempt against the former dictator in the town of Dujail, north of Baghdad. In retaliation, Saddam and his seven co-defendants are alleged to have ordered and carried out the aerial bombardment of the town, the burning of its groves of date palm trees, the destruction of its water supply, the bulldozing of the its houses, and the imprisonment, torture, and execution of hundreds of the town's inhabitants.

The keys to proving Saddam guilty are: first, proving that the crimes occurred, a nearly indisputable fact for which substantial evidence has been admitted; second, proving that the defendants were tied to and responsible for the crimes, and finally addressing the defendants' affirmative defense that their actions were justified. The prosecutors, with Saddam's admission, all but proved the second element.

In the trial's morning session prosecutors presented before and after satellite photos of the farmlands around Dujail. On the left was a shot taken before the attempted assassination of Saddam in July 1982. It showed green farmlands. On the right was a satellite photo of the same land, taken on July 31, 1983. In the newer photo the land was brown from the demolition of the orchards. The evidence proved the fact that someone committed the war crime of destroying the village's crops. But like all evidence in the case, the prosecution still needed to tie the evidence to Saddam. Fortunately for the prosecutors, Saddam would have his Jack Nicholson moment.

As the afternoon session drew to a close, Saddam took the stand and stunned the court, admitting "I demolished the orchards. That was a Revolutionary Council decision to modernize the orchard, and I signed that order." He argued that Iraqi law allowed him to seize land and boldly stated "Where is the crime? Where is the crime?" Saddam went on, speaking about his other crimes, "If trying a suspect accused of shooting at a head of state--no matter what his name is--is considered a crime, then you have the head of state in your hands. Try him."

History will regard Saddam's admissions as a significant turn in the trial. With the hardest part of the case now proven, it is likely that when the trial resumes on March 12th the prosecution will rest.

As the former dictator stated, "I am Saddam Hussein, and at the time of leadership, I am responsible. It is not my habit to rely on others. I signed that decision, and nobody forced me to sign that decision." Did Saddam order the massacre at Dujail? You're goddamn right he did.


Saddam’s Admission: I am responsible
By Paul Williams and Brianne McGonigle

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 177 (2006).

Saddam Hussein’s latest in court declaration, accepting accountability for his action as Iraqi’s former leader in relation to the current charges against him, is interesting for two important reasons. First, never before during the history of modern war crimes trials has a former leader requested that he alone should be held responsible for the actions of his regime and his subordinates.

At trial on 1 March 2006, Saddam intervened near the closing of the day’s session in which the Prosecution presented evidence that implicated Saddam and his co-defendants in the killing of 148 Shia Muslims from Dujail. He claimed responsibility for razing the farms of those convicted of trying to assassinate him in the town of Dujail in 1982 and for their subsequent deaths, stating further that his co-defendants are not criminally responsible for his decisions as leader.

Although Saddam Hussein, like other leaders who have stood trial for war crimes, submits that his actions were legal, his request of the court to release the other defendants for simply “following orders” is unprecedented. There have been numerous defendants at the International Criminal Tribunal for the former Yugoslavia (ICTY) and at the International Criminal Tribunal for Rwanda (ICTR) who have formally pled guilty to the charges against them. However, none have ever asserted that they alone should bear the burden of the blame, and none held such a senior position as Saddam Hussein.

Currently, at the trial of Kosova Liberation Army members at the ICTY, the defense is asserting that two men subordinate to the primary accused, Haradinaj, are willing to plead guilty to the charges against them by asserting that Haradinaj did not issue any orders contrary to international law, thereby attempting to clear him of command responsibility. In contrast to what happened at the IST today, where a leader claims responsibility to clear subordinates, at the ICTY it is the subordinates attempting to take responsibility to clear a leader.

While Saddam’s statement accepting blame is an interesting tactic on behalf of his Defense team, likely increasing his popularity among his supporters, it is unlikely to aid his defense or the defense of his co-defendants. Instead, his admissions have essentially proven two-thirds of the prosecutor's case against him. As for his co-defendants, following orders has been a common defense employed by many accused, but it does not relieve a defendant of guilt. Article 7(4) of the ICTY Statute, which deals with individual criminal responsibility provides:

The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Erdemovic, the first defendant to formally plead guilty to war crimes in a modern international criminal court, was also found to have followed orders under duress of being killed himself. Nonetheless, he was held responsible for his actions. The fact that he was following orders out of fear for his own life was only taken into consideration at his sentencing. The Trial Chamber applied the ruling of the Appeals Chamber in Erdemovic that “duress does not afford a complete defense to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings.” Instead, it may only be taken into account when mitigating the sentence. It is expected that the IST will reach a similar conclusion in regards to Saddam and his co-defendants. Moreover, Saddam’s assertion that his actions were in accordance with Iraqi law, a defense also employed by Nazis accused of war crimes, will likely have little impact.

Second, Saddam’s assertion of responsibility is interesting because of the change from present tense to past tense in regards to his leadership role in Iraq. In the past he spoke of himself as a leader in the present tense rather than in past tense. For example, in October of this past year, a defiant Saddam Hussein, challenging the legitimacy of the Iraqi court, declared, “I am the president of Iraq," and "I will not answer to this so-called court.” Juxtapose that statement with the statement made this week, in which Saddam declared, “I am Saddam Hussein. I was in charge, and just because things have changed, I am not going to say someone else was responsible.” He went on to say, “They [his co-defendants"> were not presidents, there was only one.” Although he concluded in the present tense, the damage was already done.

Despite the statement’s success in rallying his supporters, Saddam also made some other principal errors during his outburst. When speaking on his prerogative as leader to prosecute those he felt were responsible for the attack on his life, Saddam stated:

If I had wanted, I wouldn't have referred them [those accused of the attempted assassination"> to the Revolutionary Court. I did refer them to the Revolutionary Court. And they were tried according to the law, just as you are trying [us">. So Awad [Bandar, former head of the court and a co-defendant"> tried them according to the law, he had the right to try or to acquit according to the law and according to his own judgment.

In essence, Saddam declared that just as he had a right, while the leader of Iraq, to try individuals he felt were guilty of attempted assassination, the IST now has the legitimacy to try him under the rule of law of the current Iraq. Saddam’s outbursts this past week, while highly unlikely to help his legal defense, have proved interesting for their unprecedented nature and for their indication of his reluctant acceptance of the tribunal’s role in regards to administering law.


Response by David M. Crane

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 179 (2006).

As I've stated in the past publicly, these indictees are behaving in as "classical" war crimes indictees who rant and rave at the system, defy the Court, and then eventually simmer down and the trial moves forward. This happened to Goering (Nuremberg), Milosovic (Yugoslavia), Norman (Sierra Leone) etc.

It is important to understand that, in general, the rules of procedure and Iraqi law allow defendants to do and say things unlike common law, where a defendant does not have to make any statement or give testimony and the burden is entirely on the prosecution to prove the case against an accused, usually beyond a reasonable doubt.

Sadaam and others are making fairly incriminating statements that are to the benefit of the prosecution. I would be surprised indeed that they were doing this on advice of their counsel. The only reason I would offer is that many of these indictees feel strongly that they were above the law and believe that what they are saying or were doing was not breaking the law. Their attitudes in Iraq, Yugoslavia, Sierra Leone, Rwanda are: "I am the supreme ruler/tyrant and I made the law or interpreted/used the law as I felt necessary for the good of the people or nation."

As a former international prosecutor, my perspective is that this has been a good few days for the Iraqi prosecutor. But most importantly, Sadaam is now being seen (by the people of Iraq) as having finally submitted to the rule of law. Lets hope this continues.

Posted @ 1:35 AM | Experts Debate the Issues: The Dujail Trial