Issue #34: Show Trial or Real Trial?

A Digest of the Evidence Submitted during the Prosecution’s Case-in-Chief
by Michael P. Scharf and Gregory S. McNeal

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 188 (2006).

After five months -- but just a dozen “trial days” -- the Prosecution is about to rest in the first Saddam Hussein Trial. Nearly obscured by the media’s focus on controversial judicial rulings, assassinations of defense counsel, resignation of judges, scathing outbursts, allegations of mistreatment, hunger strikes, and even underwear appearances – is the fact that the Prosecution has been meticulously building a compelling case against Saddam and his seven co-defendants.

This essay provides a detailed précis of the evidence submitted during the Prosecution’s case-in-chief. It includes an analysis of the testimony of the three-dozen witnesses, the surprising admissions of defendants Saddam Hussein and Barzan al-Tikriti, and the numerous Exhibits that have been admitted into evidence (and which are now available for viewing on this Website).

The material is divided into four categories: The first is evidence of control, knowledge and intent. This category includes testimony and documents proving that Saddam and the other defendants are legally responsible for the atrocities done to the town and people of Dujail because they issued orders or in the alternative because they were in control of the perpetrators and had knowledge of their crimes.

The second category is evidence that the attack on Dujail rose to the level of armed conflict, which is a prerequisite for finding that the actions of the defendants were war crimes.

The third category is evidence that the actions taken against the town and people of Dujail constituted a widespread and systematic attack against a civilian population which is necessary to prove the actions of the defendants were crimes against humanity.

The final and by far most extensive category is the evidence of the prohibited acts perpetrated by those under the Defendants’ command and control – acts such as the destruction of Dujail’s orchards, homes, and wells; and the arrest, torture, and execution of innocent civilians including young children. Taken together, this evidence demonstrates that the attack on Dujail was not a legitimate effort to route out terrorists responsible for an assassination attempt, but rather an act of retaliation and retribution against persons who were in no way involved in the attack on Saddam’s convoy.

CONTROL, KNOWLEDGE OR INTENT
• A Video CD was introduced showing the visit of Saddam Hussein to Dujail and his return back to Dujail after the attack on his convoy. Saddam is seen interviewing detainees after their arrest. SIGNIFICANCE: It shows Saddam’s personal involvement in the post-incident detainments; Saddam’s remarks also show that he knew that it was only a small number of people involved in the assassination attempt.
• A report from July 13, 1982 from the Director of the Iraqi Intelligence Service (Barazan Al Tikriti) to the Chairman of the Revolutionary Command Council (Saddam Hussein) summarizing the results of the investigation of the Dujail incident; allegedly contains Saddam’s notes. SIGNIFICANCE: It confirms Barzan’s supervision of operations after the incident and indicates that Saddam knew that only 10 people were involved in the actual assassination attempt.
• July 31, 1982 official paperwork awarding some of the Iraqi Intelligence Service officers for their roles in the Dujail investigation; documents contain the signature of Saddam Hussein; one of the officers recognized was Wadhah Ismail Al Shaikh (interviewed by the Iraqi High Tribunal in hospital as a witness in the case shortly before his death). SIGNIFICANCE: It confirms Wadah’s role in the Regime’s actions at Dujail; the documents also indicate knowledge by Saddam in approving the award.
• Documents from September and October 1982 in which the Iraqi Intelligence Service discusses plans for the disposal of the land owned by those arrested in the Ad Dujayl investigation. SIGNIFICANCE: Plans for land confiscation began well before the supposed “trial” took place in 1984.
• Revolutionary Command Council Decision Number 1283 dated October 14, 1982 and signed by Saddam Hussein; the decision directs that land in Dujail and Balad be retitled to the Ministry of Agriculture. SIGNIFICANCE: The Decree contains Saddam’s signature and directly ties him to the land confiscation.
• 1984 memorandum from Saddam Hussein referring the Dujail victims to the Revolutionary Court; the memorandum directs that they should be prosecuted according to Articles 49, 50, 53, 156 and 175 of the Iraqi Civil Law. SIGNIFICANCE: Reaffirms Saddam Hussein’s role in the handling of the case. By this time, many of the people named in the referral have already died during interrogations.
• A June 14, 1984 sentencing decision issued by the Revolutionary Court against the Dujail defendants. Defendant Awad Bandar sentences 147 people to death by hanging, along with confiscation of their movable and immovable estates. SIGNIFICANCE: Document is signed by defendant Awad Bandar.
• Presidential Decree 778, dated June 16, 1984 aprroving the execution of those condemned to death by Revolutionary Court Judge Awad Bandar; Presidential Decree 778 is signed by Saddam Hussein, commensurate with his role in approving all death sentences from the Revolutionary Court. SIGNIFICANCE: Demonstrates Saddam’s personal involvement in the decision to execute 148 individuals, even though only 10 were involved in the actual assassination attempt.
• March 12, 1985 order of execution from the Presidential Diwan’s office for the condemned in the case according to the Presidential Decree # 778 for the year 1984.
• March 2, 1985 order for the immediate execution of the 148 condemned in the Dujail case; by name request to carry out the death sentences immediately.
• March 23, 1985 report from the execution committee confirming that the executions of the 148 had been carried out; some of the named people were mistakenly released instead of being executed; other prisoners, not on the list, were executed by mistake.
• June 8, 1985 Iraqi Intelligence Service correspondence about one of the condemned whom the executioners originally missed, but still prepared a death certificate for.
• January 16, 1989 document indicating that the death sentences for ten persons scheduled to occur March 23, 1985 were delayed and not carried out until 1989; the letters indicated that the bodies of the executed are to be buried in secret.
• April 5, 1987 report from the Iraqi Intelligence Service (IIS), noting the conviction of 148 persons in the Dujail case and their execution by hanging; families were released by an order from Saddam Hussein on April 13, 1986. Two of the condemned were released by mistake and were not executed; the IIS suggestion is to issue these two a forgiveness decree given their old ages. SIGNIFICANCE: Confirms that Saddam received an after-action report by the IIS, stating the facts of the regime’s treatment of Dujail residents. Although he pardoned Dujail family members, this only occurred after 4 years of detention and mistreatment without being charged or tried.
• Presidency Bureau letters discussing whether to add the names of those mistakenly executed to the execution order. SIGNIFICANCE : Demonstrates that regime could not even execute the correct people that it had “tried” in the Dujail case and then made efforts to cover up the mistaken executions after the fact. Also demonstrates that the death toll in the Dujail case is more than just the 148 names listed on the execution order.
• 14 September 1988 letter from Iraqi Intelligence Service to clarify why a certain family was detained. The letter states that they contacted an officer who previously worked in the investigation sector, who stated that Barzan directly followed the case. SIGNIFICANCE: Shows Barzan’s personal involvement in the case.
• The joint committee by the presidency of Hussein Kamil introduced a final report to Saddam Hussein on the botched executions. The report mentions that Hussein Kamil met 10 intelligence officers--one of them was Wadhah Ismail Al Shaikh. The report concludes that the statements of accused were written without their attendance and Al Thawra court (RCC court) issued execution orders against the accused without a trial. The number of the persons who executed by mistake were 5 persons. SIGNIFICANCE: The former regime has already concluded that Awad Bandar ran an illegitimate court.
• Saddam stated: "I signed that decision," he continued, "and nobody forced me to sign that decision." "I am Saddam Hussein, and at the time of leadership, I am responsible," he said. "It is not his (Saddam's) habit to rely on others."
• Witness testified that Barzan, was the one who directly issued orders regarding the investigations that were carried out. The inspection of the groves and the deployment of military forces in the area were also under orders from Barzan.
• Witnesses testified that Barzan was present at their interrogation and participated in their torture
• Barzan stated "Had I not gone to Al-Dujayl then, the inhabitants of Al-Dujayl would have been eliminated, for the extremists and those who wanted to cover up their mistakes and laxity would have killed people to cover up their mistakes." He said he ordered that anyone arrested then without adequate evidence be released.
• A witness testified that she saw Taha Yasin Ramadan when the orchards were bulldozed and that he was present wearing a military uniform, and that she recognized him.

USE OF MILITARY/ARMED CONFLCIT
• Witness testified that Barzan, was the one who directly issued orders regarding the investigations that were carried out. The inspection of the groves and the deployment of military forces in the area were also under orders from Barzan.
• A Witness testified that a few days after the attack on Saddam " We heard heavy fire. There was indiscriminate fire. And then 12 helicopter gunships began to bomb the orchards. The houses in Dujail are built in the middle of the orchards. My father built our house in his orchard. The bombing was directed at the orchards. There was a curfew and forces gathered as if there was war."
• A witness said that Taha Yasin Ramadan supervised the removal of the plantations. The prosecuting judge asks the witness to identify the persons who were killed as a result of helicopter gunship shelling of the plantations. The witness says the dead he saw were the same nine persons he mentioned earlier. He then names those nine persons again.
• The prosecuting attorney then asks the witness whether anybody was killed as a result of the practices of the intelligence officers of the former regime. He says yes and names those who died as a result of torture during interrogation.
• A witnessed testifies that one of his sons, was killed in an aerial bombardment of Dujail. Three other sons were also killed. He said that he was held for four years in the Abu Ghraib
• A witness testified that the Popular Army killed and tortured people
• Ali Hasan Muhammad al-Haydari al-Dujayl testifies that troops began to beat citizens and that intelligence agents and others wearing civilian clothes raided houses in the town, including his house and that helicopters were involved.
• A female witness testified that planes and army personnel took part in the attack on Dujail, and that the planes opened fire on the orchards

WIDESPREAD UNLAWFUL CONDUCT
• Minutes of a December 28, 1982 joint committee from the Iraqi Intelligence Service and the General Security Service discussing the transfer of Dujail detainees to the Muthana governorate; the minutes discuss a total of 687 people; the minutes divide the detainees into two groups: men and children over the age of 9 years total 293 persons, women and other children total 394 persons. SIGNIFICANCE: Proves the overwhelming number of people detained; the minutes also confirm that children were detained.
• April 5, 1987 report from the Iraqi Intelligence Service (IIS), noting the conviction of 148 persons in the Dujail case and their execution by hanging; families were released by an order from Saddam Hussein on April 13, 1986. Two of the condemned were released by mistake and were not executed; the IIS suggestion is to issue these two a forgiveness decree given their old ages. SIGNIFICANCE: Confirms that Saddam received an after-action report by the IIS, stating the facts of the regime’s treatment of Ad Dujayl residents. Although he pardoned Ad Dujayl family members, this only occurred after 4 years of detention and mistreatment without being charged or tried.
• The prosecution presented a before/after satellite photo exhibit of the farmlands around Dujail. On the left was a shot of greenery before the attack against Saddam. On the right was a satellite photo of brownish land that the prosecution said was taken on July 31, 1983.

PROHIBITED ACTS
• Undated portions of Intelligence Service letters concerning the detainment location of nine boys under the age of 18. The boys are 11, 14, 14, 12, 16, 17, 15, 14, and 17 years old. SIGNIFICANCE: Shows the punishment of children as part of the Regime’s retaliation for the assassination attempt
• The June 14, 1984 report from the Revolutionary Court reporting its decision to convict the Ad Dujayl defendants, who are described as “Talib Abed Al Jawad and his group;” written and signed by defendant Awad Al-Bandar, the report states that all the defendants appeared in the court; the documents also states that the defendants were represented by attorneys; the report lists 147 names that are convicted for joining the Al Dawa party and attacking Saddam's convoy in Ad Dujayl. SIGNIFICANCE: This was written by defendant Awad Bandar, who states that the court “listened to the accused” and that the accused confessed; in actuality, many of those convicted by Bandar had already been killed; two survivors from Bandar’s list of those convicted have testified that they never attended a trial.
• A decision issued by the intelligence court to condemn the intelligence officer who executed 4 persons by mistake whereas he was entrusted to execute total of 148 persons in 1984. The real number executed was 96 persons as a result of the deaths that happened during the investigation (some of them dead in the prison). The intelligence court decided to jail the intelligence officer for four years.
• Witness accounts tied Taha al-Ramadan to the destruction of the orchards and parts of the town of Dujail.
• Saddam stated: "I demolished the orchards, that was a Revolutionary Council decision to modernize the orchard and I signed that order. Where is the crime?"
• Witness testimony that the families of those suspected of attacking Saddam, mainly civilians, peasants, and others, were moved to the sectors assigned for them in Abu-Ghraib prison.
• Witness testimony that Taha yasin Ramadan, led the committee responsible for razing the groves in Al-Dujayl and Balad, and dealt with the detained families, Among the committee members were Muhammad Ulaywi and Sa'dun Sabri.
• Witness testimony indicating that he observed the misbehavior with and ridicule of the detainees.
• Witness testimony that only 12 people were involved in the attack against Saddam
• Witness testimony that after the attack on Saddam several persons were executied inside the groves by the bodyguards of the Saddam. The persons killed were relatives of an intelligence officer, named Muhammad Mut'ib. They were considered martyrs when it was revealed that they had no role in the shooting on the motorcade.
• A witness described the use of a meat grinder as a torture device "On my left I saw a machine that looked like a grinder with coagulated blood and human hair. What I saw could not be removed from my mind."
• The witness says: "Interrogation began on Saturday. Those who went down on their feet were carried back on blankets. The age did not matter, whether you are 70 or 14 years. They were all tortured. I was 15 years at that time. They detained me on Friday and I stayed Saturday, Sunday, and they took me down at 1900 Monday and they brought me back at 0200. Was it possible for me to topple a regime? They treated me as an cunning politician who has a command and a party and who could bring down regimes. That was how I was treated. The blindfold that they placed on my head kept slipping all the time because I was so young. Many women were tortured in front of me. You have arrested me and you arrested my injured brother. All right. But why do you take my sisters?"
• A witness described how they were deprived of food while in detention, they originally received two pieces of bread, but in response to complaints their meals were adjusted down to only one piece of bread, and a bowl of rice for eight-twelve inmates.
• A witness said that they brought a detainee Salih Muhammad Jasim, born in 1950 and they shot him twice in his foot during the interrogation. Another, Qasim Abd Ali al-Ubaydi, born in 1959, was "burned with electric shocks."
• "Husayn Ya'qub Majid had his hand and leg broken during interrogation." He says that Jasim Muhammad Latif died under torture. They broke all his bones because he was a deserter and he died under torture.
• A witness told of his friend Khamis Kazim Ja'far, Karim's brother, as telling him "that he was arrested on Thursday, the same day he himself was arrested. He cites Khamis as saying Saddam was with the Ba'th Party unit at the detention center and they brought him to Saddam and told him that this was Khamis, brother of Karim, from a family that opposes the regime. Saddam asked him: Do you know me? He said: Yes. Saddam said who am I? He told him: Saddam because I did not know how to tell him: Mr President. I was only a boy. He asked me three times who he was and each time I replied: Saddam. He says that Saddam then hit him with an ashtray on his head and wounded him very badly."
• A Witness testified that he saw a man hit by the guards who died instantly. He was 65 and he had a heart attack after he was hit. They never brought his body to his relatives and nobody knew where they took his body. He says: "I saw this with my own eyes." He also said that members of a "committee from the presidential office" that visited the center as saying: "You, the people of Al-Dujayl. We have made you an example for the Iraqis. We taught you a lesson."
• A witness testified that an 11-years old girl, Batul Muhammad Hasan, was "shot in the foot by indiscriminate fire by the intelligence and the guards." He says that the girl and her grandmother were imprisoned for four years and then died.
• A witness described torture and displacement stating "They moved the families in groups. We did not know that they were in the desert; we thought they were released. We did not know. We stayed at Abu Ghurayb the entire 1983. The torture continued and guards changed. Every 21 days they brought four new guards. They were butchers
• A witness says several persons died under interrogation, and he names several.
• A witness says that she was beaten with hoses and prodded and tortured with electricity to confess. She details how her brother was brought for interrogation, and how children, elderly people, and families were taken to Abu Ghraib for interrogation. She spoke about the horrible conditions in the prison, and how they had to be resourceful to get their basic needs, such as making needles to be able to sow clothes for the children. She says that her younger brother was beaten by people she cannot identify.
• Ali Hasan Muhammad al-Haydari al-Dujayl recounted how he was taken in a car to an unidentified location and was tortured by electric shock , burning, and other methods.

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What Historical Narratives are the Iraqi Trials Developing?
By Mark Drumbl

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 212 (2006).

The October 2005 version of the Statute of the Iraqi High Criminal Court identifies its "justifying reasons" in a postscript as follows:

- to expose the crimes committed in Iraq;
- to lay down rules and punishments to condemn the perpetrators after a fair trial;
- to form a high criminal court;
- to reveal the truth, agonies, and injustice;
- to protect the rights of Iraqis; and
- "alleviating injustice and for demonstrating heaven's justice as envisaged by the Almighty God."

The "justifying reasons" therefore encompass all the ambitious goals generally placed upon the shoulders of atrocity trials, although lean more than is the case with other institutions toward what I would call the narrative function: namely, truth-telling, authenticating a historical record, and expressivism.

How have the proceedings fared thus far in terms of this narrative function?

In response to the Milosevic trial, the Iraqi High Criminal Court decided to implement its proceedings through a series of mini-trials. The first of these involved the violence at Dujail. In 1982 this was the site of a failed assassination attempt on Saddam. In response, in 1984 the Iraqi Revolutionary Court ordered the execution of 148 townspeople.

The Prosecution case against Saddam for Dujail recently closed. It ended on a high note. Documentary evidence was proffered and admitted by the Court that implicates Saddam, as well as the Revolutionary Court, in sentencing and ordering executions of Shiites not plausibly connected to any assassination attempt against him in 1982. One document is a memo from the Revolutionary Court announcing that 148 suspects had been sentenced to death by hanging, in 1984, with a list of names, and signed by codefendant Awad al-Bandar (former chief judge of the Revolutionary Court). Then, two days later, Hussein signed a document approving all 148 sentences. Some involved boys. Prosecutors did an effective job displaying these signed documents through audio-visual technology in the courtroom. A third document, signed by Barzan Ibrahim al-Tikriti, Saddam's half-brother and former chief of intelligence (the Mukhabarat service), then was displayed. This document ordered the executions to be carried out. Many individuals died under torture before they could be executed.

These documents corroborated the often moving victim testimony. They also prompted Saddam's admission of responsibility for the Dujail village killings, accompanied with his disclaimer of guilt based on the argument that any leader targeted by an assassination attempt would have done the same.

However, and not to minimize the suffering of victims, Dujail remains a relatively minor thread in a broader tapestry of atrocity. The performativity of a Dujail conviction will be of relatively low value; other than the fact that it might permit the opportunity to judge the Iraqi Revolutionary Court as a whole for applying the law in the service of oppression -- like the Altstoetter (jurists) trial by the United State Military Commission at Nuremberg. Awad al-Bandar, proffers the defense that the Dujail defendants were given a proper trial and legitimately sentenced to death for having endeavored to assassinate Saddam, during a time of war with Iran.

Dujail was chosen as the first of a dozen or so of these mini-trials owing to perceptions it was a water-tight case. Subsequent mini-trials will occur in a higher-stakes context.

Other commentators on this blog have inquired about technical-legal aspects of a Dujail conviction. Leila Sadat and David Scheffer have authored excellent posts in this regard. To build on their observations: if a low-stakes conviction overshadows the rest of the charges, on much fierier accusations -- including repression of Kurds by chemical weapons, draining of the marshes, and crushing of the 1991 Shiite uprising in the south by Sunni tribes of the west (under Saddam's alleged order) -- then the Court will, in the name of conservatism, have forsaken its ability to make a hardier historical footprint. Paradoxically: in striving to avoid one of the major shortcomings of the now terminated Milosevic trial, namely an overarching but unwieldy and unduly lengthy narrative, the iterated vignettes of atrocity planned by the Saddam trial may create a situation where closure with regard to the first vignette may overshadow * and perhaps strip the meaning * of the subsequent vignettes keyed to much more serious allegations. These subsequent vignettes then become deflating anticlimaxes.

On another note: to what extent does the artificial reductionism of the criminal trial shield much deeper inquiries? Such inquiries might include international and foreign complicity in Saddam's abuses, such as the selling of weapons (some of which has come to light in alternate proceedings, such as the verdict in the Netherlands against Frans van Aaraat); the role of the U.S. in providing financial support and material assistance to aid the Ba'athist war against Iran; the U.S. exhortation of uprising in 1991 and subsequent failure to support those who rose up; complicity and involvement by ordinary Iraqis in totalitarianism; the toll U.N. sanctions took on ordinary Iraqis and how these sanctions may have paradoxically strengthened Saddam's control over power by weakening his opposition; and the legality of Operation Iraqi Freedom.

I do not raise these as tu quoque defenses. These issues have no bearing on determinations of the individual guilt of the defendants before the Court. Admittedly, defendants have exploited these to embarrass the Court. Nonetheless, these are historical truths that may be squeezed out by application of the modern rules of evidence and, therefore, fail to appear on the pages and transcripts of judicialized truths, notwithstanding the fact that these truths form an important part of Iraqis' perceptions of their current reality and of the very legitimacy of the Court in the first place.

The current chief judge, Judge Rahman, has been praised for his tight control over the courtroom, in contradistinction to Judge Rizgar, his predecessor, who was subject to considerable criticism from politicians for his having accorded Hussein too much leeway (some say he in fact had lost control over the courtroom). On the one hand, tight control is necessary for managerial and bureaucratic reasons, to streamline process and dissipate inflammatory controversy, and to preserve the authority of the Court. The need for such control arises from defendants' antics, designed to turn the proceedings into farce. These include outbursts, allegations by Saddam Hussein that the U.S. had tortured him, taking prayer breaks during witness testimony, hunger strike, a brawl, dismissal of defense attorneys, chief of intelligence (and half-brother) showing up in pajamas. Examples of this tight control -- a valuable lesson learned from the Milosevic proceedings * include in the Dujail proceedings shutting out political speeches and controlling audio output. However, there is a cost to managerial effectiveness in terms of the resonance of the trial to wider audiences in Iraq and whether the full story of the multi-causal origins of Saddam's grip on power is told. There is a balance between risk-management and uncovering the truth.

In particular, by thus far refusing to respond to defense motions that pertain to the Court's jurisdiction and the legality of its creation, the Court may weaken its own credibility. This presents a contrast with the ICTY, whose decision in the Tadic matter * flaws notwithstanding * grappled with important issues of legitimacy. I'm not sure what convincing rationalization the Court can proffer regarding the legitimacy of its own creation, but engaging with the issue is preferable to leaving it as the elephant on the table.

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Fixing the Legitimacy Deficit in the Saddam Hussein Trial
By Leila Sadat

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 166 (2006).

The theatrics of the Saddam Hussein Trial have confirmed many onlookers worst fears that the trial is political theater, rather than serious legal process. Even prior to the trial’s beginning, the manner in which the Court was established, its funding, operation, jurisdiction, substantive law and procedural rules all raised some very serious issues regarding its legitimacy. In spite of Saddam Hussein’s recent dramatic confession that he was responsible for (but not guilty of) the killings at Dujail, and the very moving testimony of several prosecution witnesses, the proceedings over the last few months since the opening day on October 19, 2005 appear to raise more questions than answers. Indeed, the balance sheet (so far) is far from positive: So far the total is one judge dead; one court employee and two defense lawyers killed; the rest of the defense team either excluded or periodically boycotting the proceedings (depending on whom one believes), and being replaced by Court appointed lawyers; the presiding judge forced to resign, only to be replaced by a judge who was then forced to resign and who was himself replaced by a Kurdish judge from the town of Halabja, the northern Iraqi town which was the situs of one of Saddam’s regimes worst chemical weapons attacks; and two, and maybe more accused, threatening hunger strikes, including the Court’s top defendant, Saddam Hussein.

Of course, high profile trials of former leaders are bound to be dramatic, and were the theatrics the only difficulty one might dismiss them as par for the course. Yet very serious questions remain regarding the legitimacy of the overall endeavor, as well as it’s potential for assisting Iraq’s transition to the rule of law, and at least three major problems persist.

1. Should Judge Rahman be recused?
Accusations of bias directed towards a judge are serious matters, and should be thoughtfully considered. In essay number #29, Michael Scharf argues that Serbs may have believed that Judge Richard May was biased against Slobodan Milosevic because he was a British national, and NATO (a 19 country Regional Security Organization) conducted military operations to repel Milosevic’s incursion into Kosovo. Yet that standard does not comport with rules for the recusal of judges in either international or national tribunals. (Indeed, accepting this argument would have disqualified judges from each of the 19 countries of NATO including the United States, whose current Judge, Theodor Meron, has presided over the Appeals Chamber of the Court (and heard appeals in the Milosevic case) for the last several years). So clearly, the nationality or ethnicity of a particular judge is not enough, without more, to support otherwise unfounded allegations of bias. Indeed, if the test for recusal were that broad, almost any judge could be disqualified for a variety of reasons including social class (biased against or for the poor) or religion. So, the mere fact that the presiding judge in the Saddam trial is Kurdish should not and does not disqualify him. More disquieting, however, is that the judge hales from Halabja, and has family members who were killed by the attack there that was allegedly ordered by Saddam. Under the rules governing International Tribunals, the question is whether Judge Rahman can be said to have a “personal interest in the case,” (see, e.g., ICC Rule 34(1)(a)) because members of his family were the victim’s of one the defendant’s alleged crimes, even if it is not the crime charged in the instant case. Although hearing the Dujail case might pass this test, cases involving Kurdish victims, particularly from Halabja, clearly would not. Of course, there may not be any future trials (see point 3, below), in which case the victims of Halabja will have to content themselves with experiencing justice vicariously through the active participation of Judge Rahman.

2. Will the Sunni’s accept the Judgement of the Court?
In a recent television appearance, Iraq’s Deputy Ambassador to the United Nations stated that Iraqi’s believe that justice is being done by the Saddam Hussein trial. Yet it is clear that this position does not reflect Sunni public opinion. What the Sunni’s see is a trial presided over by a Kurdish judge of a claim involving Shiite victims. Of course, just as German public opinion was initially negative towards the Nuremberg trials, and Serb public opinion is mixed towards the Milosevic trial, perhaps it is unrealistic to expect individuals that share the ethnicity or nationality of the defendant to immediately embrace the proceedings. Yet if they are ever to do so, the proceedings must be seen as fair, which these proceedings do not appear to be. While the prosecution has done a good job introducing evidence of Saddam’s potential culpability for Dujail, the defense team, at least until now, has not been allowed to raise real issues regarding the jurisdiction of the Court and the charges against the accused, and when it has asked for a change of venue – a completely reasonable request given the killings, threats and daily insecurity that surrounds the Court proceedings – it’s requests have been summarily dismissed.

Under Saddam’s regime, defense lawyers received the file of their clients the morning of the trial. This attitude appears to persist in the Iraqi High Criminal Court. Unless Saddam’s defense team is allowed to put forward an effective defense, which might require that the proceedings be moved out of Iraq for security reasons, the trial will never appear fair to the Sunnis – now or twenty years from now. Additionally, the judges need to issue written, reasoned decisions on preliminary motions relating to jurisdiction, venue, and particular defenses. Otherwise their out of hand dismissal of these motions – even if correct on the facts and the law – appear to be arbitrary and partial, rather than judicious and impartial. Finally, of the five initial judges sitting on the Saddam trial, three have now been replaced. This suggests political interference with the Court that is unlikely to sit well with constituencies already inclined to be skeptical about the proceedings. Further tinkering with the composition of the bench needs to stop if the proceedings are to retain any semblance of credibility.

3. Will the more significant cases ever be tried so that an accurate historical record is made?
A trial of the Dujail killings will presumably result in the conviction of Saddam and the other accused – it is hard to imagine, given the short shrift the defense team has received thus far that any other outcome is possible. Under article 27(B) of the Court’s Statute, punishments must be executed within 30 days of the date when the judgment becomes final and non-appealable. It is difficult to imagine that the Dujail trial can conclude without the Court imposing a sentence upon the accused (which could be the death penalty); and although it has been argued (on this blog and elsewhere) that this is only the first of many cases that will be brought against Saddam Hussein and the other accused, it would seem inconsistent with the Court’s statute to permit serial trials of the same accused for other offenses. Additionally, even if article 27(B) was interpreted not to apply, or the Court simply refrained from imposing a sentence in order to avoid its application, what kind of due process would the accused receive in subsequent proceedings if a death sentence had already been imposed or threatened in a prior proceeding? And what would be his incentive (or his lawyers) to zealously defend against the charges presented? The Court therefore has two unpleasant alternatives: Not to try the other cases against these accused, meaning that the most significant crimes – Halabja, the invasion and occupation of Kuwait, the suppression of the 1991 uprising, the draining of the southern marshes, the ethnic cleansing of ethnic Persians from Iraq to Iran, and the unlawful killing of political opponents – will never be heard. Alternatively, to try them in what would probably be labeled show trials. In neither case will the kind of historic record be made that can ensure that Saddam Hussein is remembered as a war criminal, rather than a martyr.

Posted @ 7:59 AM | Experts Debate the Issues: The Dujail Trial