Issue #33: What is the Significance of the Documents Entered into Evidence by the Prosecution?

Essay by Michael A. Newton

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

Saddam's outburst at the conclusion of the court session on Wednesday might be the most important few minutes of the entire trial because the judges are now in a perfect position to assess his words and demeanor in light of all the other evidence found in the referral packet and introduced during the court proceedings. As far as the actual documents that were introduced formally into evidence, it is important to remember that they were contained in the original referral packet collected by Judge Ra'id and provided to the defense team back in August 2005. The relevant exhibits have been in the referral packet and in the posession of the defense team and are being publicly explored at the appropriate time. The documents point to crimes against humanity that go well beyond the murders of the civilians in the aftermath of the attempted assassination in Dujail. The problem of weaving together documentary evidence, video and film evidence, and live witness testimony into a compelling and complete trial narrative has been shared by all of the major tribunals applying international norms since Nuremberg. The Iraqis have learned the lessons of past tribunals and are reading some into evidence, allowing others to come in as written drafts, and as in the past two days, putting some into digital form for viewing in open court -- pretty sophisticated -- the message is that the trial itself cannot be fairly judged in its various pieces, but its true procedural adequacy can only be properly assesssed as a holistic matter -- the prosecutor promised these documents in the opening statement and now has presented them.

In legal terms, the documents are a powerful supplement to the testimony of the numerous witnesses in establishing a joint criminal enterprise by the Ba'athist leadership, up to and including Saddam. The modern doctrine of a joint criminal enterprise under international criminal law was first clarified by the International Criminal Tribunal for the Former Yugoslavia Appeals Chamber in the Tadic case and its legal contours have been shaped in a number of subsequent cases. See, e.g., Prosecutor v Simba, ICTR-01-76-T, Judgement and Sentence 13 December 2005, paras. 389-405. According to settled jurisprudence, the required actus reus for each form of joint criminal enterprise comprises three elements, each of which Saddam helped establish with regard to the crimes alleged in al-Dujail with his outburst in open court. First, a plurality of persons is required. They need not be organised in a military, political or administrative structure. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required. The cases in other tribunals are clear that there is no necessity for this purpose to have been previously arranged or formulated. It may materialise extemporaneously and be inferred from the facts introduced during trial. Third, the participation of the accused in the common purpose is required, which involves the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of the provisions (for example, murder, extermination, torture, or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose. The criminal theory of joint criminal enterprise is different from merely aiding and abetting a crime as the ICTY Appeals Chamber clarified in Kvocka et al,. Judgment (AC), 28 February 2005, para. 90 (Where the aider and abettor only knows that his assistance is helping a single person to commit a single crime, he is only liable for aiding and abetting that crime. This is so even if the principal perpetrator is part If a joint criminal enterprise involving the commission of further crimes. Where, however, the accused knows that his ass istance is supporting the crimes of a group of persons involved in a joint criminal enterprise and shares that intent, then he may be found criminally responsible for the crimes committed in furtherance of that common purpose as a co-perpetrator.) Under some limited circumstances, the theory of joint criminal enterprise may even extend to the crime of genocide in its various forms provided that the requisite intent is present. Rwamakuba, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide (AC), 22 October 2004, para. 31.

The evidence that underage victims were murdered and that their bodies were secretly disposed of was particularly chilling, and especially powerful because those documents and Saddam's reaction to them attest to the knowledge and approval of President Hussein himself. Perhaps most importantly, there is absolutely no evidence that any of the victims actually received a trial before they were sentenced to death and murdered at the command of the Revolutionary court pursuant to Saddam's signed orders; this evidence strikes at the very heart of the efforts of the legal professionals working in the Iraqi High Criminal court to punish those who subverted the rule of law in Iraq. It is no accident that the Iraqi lawyers demanded that the domestic crime of "manipulating the judiciary or influencing the judiciary" in Article 14 of the Statute be included in the Tribunal's jurisdiction right alongside the crimes of genocide, war crimes, and crimes against humanity in the Statute for the Higher Criminal Court. Furthermore, it is very symbolic that Judge Awad Bandar normally sits beside Saddam Hussein in the courtroom because he was the actor subjected to the demands of politically motivated murder wrapped in the cloak of justice. The judges in Baghdad are now positioned to draw reasonable inferences from the evidence contained in the referral packet and shown in open court and supplemented by the outbursts of the defendants that a common criminal purpose existed to commit crimes against the civilians in al-Dujail.


Is the Execution Order the Prosecution’s “Smoking Gun” Against Saddam?
Yes – by Kevin Jon Heller

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 186 (2006).

During the February 28 trial session, the Chief Prosecutor, Jafaar al-Moussawi, presented a presidential order allegedly signed by Saddam Hussein approving the execution of the 148 Dujail villagers whose deaths are the centerpiece of the case against Saddam and his co-defendants. Earlier, Al-Moussawi has presented a document signed by Awad al-Bandar, the former Chief Justice of the Iraqi Revolutionary Court, announcing that the villagers had been sentenced to death and listing them by name.

There is no question that the execution order is critical to the prosecution’s case, because it provides the first documentary link between Saddam and the executions. But is it the proverbial “smoking gun”?

At the outset, it is important to note that we do not know the precise charges that have been brought against Saddam – the Iraqi High Tribunal (“IHT”) has not made his indictment public. Nevertheless, it is safe to assume that he has been charged, inter alia, with the crime against humanity of “Willful Murder,” a violation of Article 12(1)(A) of the IHT Statute. It is that crime I will focus on here.

According to the IHT’s Elements of Crimes, which “shall assist” the IHT in interpreting Articles 11, 12, and 13 (i), Willful Murder has three elements:

1. The perpetrator willfully killed one or more persons;

2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and

3. The perpetrator knew that conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Although Saddam did not personally kill the villagers, Article 15(2)(B) of the IHT Statute provides that a person who orders the commission of a crime is no less criminally responsible for it than the actual perpetrators. The real question, then, is whether the execution order satisfies the elements of Willful Murder under Article 12(1)(A).

Given the evidence that has been presented at trial thus far, it seems clear that it does. The first element is satisfied, because the order led directly to “one or more persons” – 148, in fact – being killed. “Willful” here is synonymous with “intentional” (ii) and simply reflects the IHT Statute’s general requirement that the defendant must have “meant… to cause a particular consequence” when he committed the act in question (iii). Saddam obviously intended for the condemned villagers to be killed, so there is no question that he acted intentionally for purposes of Article 12(1)(A).

The second element is also satisfied. “The widespread nature of the attack can be derived in particular from the number of the victims” (iv). 148 executions most likely qualify as a “widespread” attack under this standard; although no international court has ever specified a minimum number of victims, the International Law Commission’s commentary to the relevant provision speaks only of a “multiplicity” of victims (v). Moreover, even in the unlikely event that the IHT were to hold that 148 executions are not sufficient to satisfy the “widespread” requirement, the executions would still clearly qualify as a “systematic” attack. In the context of crimes against humanity, “systematic” simply refers to “the organized nature of the acts of violence and the improbability of their random occurrence” (vi). It is difficult to imagine a more organized, less random series of acts than Saddam’s brutal reprisal against the Dujail villagers following the attempt on his life.

Finally, the third element is easily satisfied. Saddam personally ordered the executions; insofar as they qualify as a widespread or systematic attack, therefore, he clearly knew and intended his conduct to be part of that attack.

The second and third elements of Willful Murder, of course, require the attack be directed “against a civilian population.” Saddam has argued that the villagers were executed because they had participated in the attack on his life – actions that would arguably have deprived the villagers of their civilian status (vii). Nevertheless, it should not be difficult for the prosecution to show that most of the executed villagers did not take part in the assassination attempt; after all, the doomed group contained at least 10 minors, including a child who was 11 years old. The distinction is critical, because the presence of a small number of combatants among an otherwise non-combatant population does not deprive that population of its civilian status (viii).

Saddam has also argued – more centrally to his defense – that the death sentences were lawfully imposed by the Iraqi Revolutionary Court and that, as the President of Iraq, he had every right to order them carried out. That argument seems to have impressed various observers of the trial; a representative of Human Rights Watch, for example, commented: “What we saw today was not Saddam admitting guilt, but admitting to the fact that he acted in accordance with his official duties and powers.”

With all due respect to Human Right Watch, that simply isn’t accurate. Although Paragraph 223 of the Iraqi Penal Code of 1969 prescribes death for murdering the President of Iraq, Paragraph 31(1) expressly provides that the punishment for attempting a felony punishable by death is not death but life imprisonment. As a result, Saddam did not have the authority to order the executions even if they were involved in the assassination attempt – the order was nothing more than an ultra vires act neither legitimated nor justified by his authority as President of Iraq.

It is difficult to overstate the importance of the ultra vires nature of the execution order. If Saddam could not lawfully have ordered the villagers to be executed, the execution order is, in fact, the prosecution’s “smoking gun.” It does not matter whether Saddam properly referred the villagers’ cases to the Iraqi Revolutionary Court. It does not even matter whether, as al-Moussawi contends, the death sentences were imposed after “imaginary” trials. By signing the execution order, Saddam essentially admitted that he committed Willful Murder as that charge is defined by the Article 12(1)(A) of the IHT Statute – and most likely signed his own execution order, as well.

Notes:

i. Iraqi High Tribunal, Elements of Crimes, sec. 1, para. 1.

ii. See, e.g., GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 302-03 (2005) (noting that “wilfull” and “intentional” are equivalent under international criminal law).

iii. Iraqi High Tribunal, Elements of Crimes, sec. 1, para. 2.

iv. Werle, supra note ii, at 225; see also Prosecutor v. Akayesu, ICTR (Trial Chamber), judgment of 2 September 1998, para. 580 (“The concept of ‘widespread’ may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”). Article 17(2) of the IHT Statute expressly provides that “to interpret Articles 11, 12, 13 of this law,” the IHT “may resort to the relevant decisions of the international criminal courts.”

v. 1996 Draft Code of Crimes Against the Peace and Security of Mankind, commentary on Article 18, para. 4.

vi. Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), judgment of 12 June 2002, para. 94.

vii. See Additional Protocol I, Art. 51(3).

viii. See Additional Protocol I, Art. 50(3).


Documentary vs. Testimonial Evidence?
by Mark Drumbl

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 185 (2006).

The Saddam proceedings are adjourned until March 12. From the perspective of the prosecutors, the proceedings adjourned on a high note: the introduction into evidence of a decree allegedly bearing Saddam's signature mandating the execution of 148 Shiite men and boys, some as young as 11, in the Dujail massacre. This massacre was initiated after a failed assassination attempt on Saddam in 1982. Saddam's response to this evidence was more subdued than has hitherto been the case. He admitted he ordered trials of those eventually executed, but intimated that this was legal in light of their having been involved in an assassination attempt against a head of state. This response becomes less plausible to the extent the execution orders exceeded the actual attackers.


This development demonstrates the power of documentary evidence. One of many reasons the Nuremberg proceedings went relatively smoothly was because of the Nazis' propensity to document their evil. Then, nearly two decades later, it became possible for proceedings such as those involving Adolf Eichmann in Jerusalem District Court to unfurl around the axis of witness testimony. With the foundations of the criminality having been established documentarily, witnesses became able to recount their own harrowing stories, thereby serving important cathartic and pedagogical functions. This put a human face on the suffering instead of merely sterile prose of placidly authorized extermination.

In the event further documentary evidence in the Saddam case becomes authenticated, then perhaps this can settle the proceedings somewhat and make them more routinized. This suggests that the Prosecution might prefer (if possible) to introduce (and build) a case around documents instead of testimony. That said, as sectarian violence in Iraq tragically escalates and the architecture of security crumbles, it seems to me that the trial is increasingly becoming remote from the daily lives of Iraqis. That said, justice in Iraq will be multigenerational. It may be that showing the paper trail first, and hearing the voices later, is a surer path to safeguard the legitimacy of the proceedings in very troubled times. But, on the other hand, this may dampen some of the expressive and didactic possibilities of the trial, assuming that these ever were realistic.

Posted @ 7:06 AM | Experts Debate the Issues: The Dujail Trial