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

It is indeed difficult to ignore certain commonly recognized principles of US justice. But still i´m wondering if the trial was more show then fair.

Posted by Lenen (email) on 02/02/2009 @ 03:32 AM

In his article, Professor Drumbl lists the six justifying reasons for the Iraqi High Tribunal and asks how they have faired towards fulfilling the narrative function of “namely, truth-telling, authenticating a historical record, and expressivism.” One justifying reason given by the IHT was to “to reveal the truth, agonies, and injustice [of the Saddam regime">.” With these goals in mind, did the IHT develop a historical narrative that will be meaningful for the Iraqi people and the international community?
American notions of the “right to a speedy” trial aside, did the IHT fall short of its own goals by starting with the Dujail case? Dujail provided ample evidence to convict Saddam Hussein for some of his crimes. The evidence was overwhelming; Saddam said the orders were his, and overall there was little doubt to the facts. Yet when examining the justifying reasons for the IHT, we have to ask how well the IHT lived up to their justifying reasons. If the end goal was convicting Saddam, Dujail was the right case to start the tribunal with. But if the goal was to create a meaningful historical narrative that expounded upon the true injustice of Saddam Hussein’s regime, did the IHT fall short of its own goals?
Professor Drumbl said, “[t">here is a balance between risk management and uncovering the truth.” Looking at the six reasons the IHT posited as their duties, and understanding that the feelings of the Iraqi judges (and people) were that the death penalty had to remain, Dujail may have been too close to risk management and too far away from uncovering the truth. The truth in Dujail was already well documented. The truth and agony of Hussein regime was not best represented with a case of such narrow scope. This is not to belittle the suffering of the Dujail victims. Perhaps it would have been better for Saddam Hussein, the Iraqi people, and the rest of the world to put Saddam Hussein on trial for a crime not so fully understood, and in more in proportion with the totality of his atrocities.

Posted by anon on 02/03/2008 @ 05:08 PM

In response to Leila Sadat’s concluding remark to the effect that she hoped Saddam Hussein would be remembered as a war criminal and not as a martyr, I argued in comments posted on March 27th that Saddam deserves to be remembered as a martyr as well as a war criminal, but that above all he has all the makings of a tragic hero. In comments posted on April 2nd, Benjamin D. Malbasa brushes aside my characterisation of Saddam Hussein as a tragic hero, asserting that “tragic heroes redeem themsleves in some way before succumbing o their flaws”, and that anyway, “war criminals are not heroic.”

The first of these two statements is rather strange. Surely tragic heroes redeem themselves after succumbing to their flaws, not vice versa? And the second statement is also questionable. Of course no one would consider war crimes to be heroic, but I see no reason why war criminals should not be heroic or tragic individuals. Indeed, ‘heroes’ traditionally were not only leaders but war leaders, and it could be argued that virtually all such leaders committed what are nowadays referred to as war crimes. A prime example is Winston Churchill, who presided over the gassing of rebellious Iraqi Kurds as well as the carpet bombing of German cities.

Qualities that we think of as heroic include courage, audacity and fortitude in adversity. No one could seriously dispute that Saddam Hussein possesses such qualities. Perhaps his single most outstanding quality is what is referred to in German as ‘Lebensmut’, i.e. existential courage – the willingness to face whatever fate has in store for him without losing heart.

In his book on Tragedy in Methuen’s Critical Idiom series (London, 1969), Clifford Leech argues that what characterises tragic heroes for better or worse is “the sense of full, or at least unusual realization of the powers and tendencies peculiar to man.” That certainly applies to Saddam Hussein, who is not only a powerful and charismatic personality, but an exceptionally complex one – “a bundle of contradictions” in the words of his Kurdish translator, Saman Abdul Majid. While his ruthlesssness as a politician is always emphasised, on a personal level he is also warm and generous, patient and kind, “a gem of a person, a remarkable human being” in the words of his Indian cook, Haja Mohideen. One of Saddam’s personal physicians, Ala Bashir, told the American journalist, Jon Lee Anderson that Saddam is “really very sensitive and emotional, although he looks very tough,” and he recounted the following incident: “One day Saddam asked me to treat a burned boy who had been brought to him for help by his mother. It was an old burn on his face, which was badly disfigured. So he called me and, describing the boy to me, asked me what I could do for him. And he started crying. Really! He took tissues and wiped tears off his face. He was really crying.” Bashir added: “He’s like any other human being, he has something good and something bad…I think his fatal mistake was to allow the supreme power he had to overcome all the other good things inside himself.”

Saddam Hussein was without doubt the most able Arab leader of his generation, who combined passion and vision with dedication and diligence, as well as the most capable and charismatic figure in the Iraqi Ba’ath Party. His leadership qualities were recognised by none other than the founder of the Arab Ba’ath Socialist Party, the Syrian Christian, Michel Aflak. (I mentioned a few of Saddam’s genuine, progressive achievements in my previous comment posted on March 27th.)

Saddam Hussein’s eventual downfall was by no means only the result of flaws in his personal makeup and his cultural and political formation. It was also due to an unfortunate combination of external circumstances, notably the inherent divisions within Iraqi society and the relentless meddling and scheming of hostile foreign powers, especially the USA, Iran and Israel. Nevertheless the flaws cannot be overlooked. Much has been made of Saddam’s difficult and deprived childhood and especially his mistreatment at the hands of his stepfather. What is also discernible is the apparent congruence between the fragmented, suspicious and violent tribal milieu in which he was raised and certain quasi-fascist or Jacobin elements in Ba’ath Party ideology. Understandably, the danger of succumbing to such flaws is greatest when one’s values and achievements are under intense threat, and that was the case in the 1980s with the ascendancy of militant and expansionist political Islam in neighbouring Shiite Iran under the fanatical Ayatollah Khomeini. The majority of war crimes etc which are laid at Saddam’s door relate to that period.

In the eyes of the dissident left-wing Ba’athists of the Iraqi Patriotic Alliance, the patriotic communists of the Iraqi Communist Party (Cadre) and Arab nationalists in general, Saddam redeemed himself, at least in part, by his “firm and true stances” against imperialism (ICT Cadre communiqué, Jan. 2004) in the 1990s after the failure of his efforts to maintain friendly relations with America without becoming a client or a stooge. And he further redeemed himself by his refusal to give in to blackmail before or after the 2003 invasion, preferring to sacrifice everything in defence of the sovereignty and honour of Iraq and the Arab nation as a whole.

Ironically, the American invasion liberated Saddam from a way of life in which he felt increasingly trapped. Sa’adoon Al-Zubaydi, a former presidential translator and ambassador to Indonesia went as far as to assert that “in many ways I think he almost wished for it. In his innermost being he wanted a change in his life.” Having withdrawn from the day-to-day management of his regime, Saddam found an outlet in writing, and in his first and probably best novel, “Zabiba and the King”, published in 2000, he rejects the hereditary principle and suggests that he would reward his people for resisting foreign occupation by relinquishing power. I penned the following brief review of this prescient work, which is readily available from internet booksellers:

Saddam Hussein’s romantic fable ‘Zabiba and the King’ is a fascinating and moving work, which reveals the deep inner thoughts and feelings of a man who has been relentlessly demonised in the Western media. (Two of the dictator’s former interpreters have confirmed that he penned it himself.) The reader witnesses how the intimate friendship between a lonely, unhappy king and an unusually perceptive and spirited peasant girl paves the way for the abolition of a decadent monarchy and the establishment of an egalitarian government. In a series of thoughtful dialogues between the protagonists, ego-consciousness and soul-consciousness, man and woman, ruler and people are gradually reconciled. ‘Zabiba and the King’ appears to be a genuine attempt by Saddam Hussein to resolve some of the contradictions in his own nature and his political philosophy. While CIA analysts focused on the allegorical dimension of the novel, it is open to multiple interpretations like all genuine works of literature. Interestingly, the narrator is retelling an edifying tale which his grandmother once recited to an audience of village youngsters huddled in a draughty mud hut - a reminder of Saddam’s humble origins.

While the novel is ostensibly set in the 7th century, it also contains a number of allusions to the quasi-colonial Iraqi monarchy toppled in the 1958 revolution, which the American editor failed to recognise. (For example, the figure of Nuri Chalabi is not a reference to Ahmad Chalabi, but to his father, a staunch monarchist who is conflated with the pro-British prime minister, Nuri Said.) Interestingly, the establishment of a people's assembly, composed of men and women of the anti-imperialist popular resistance and the dispossessed dovetails with the strategic programme of the Iraqi Resistance.

Posted by Alison Gundle (email) on 04/11/2006 @ 04:33 AM

The Iraqi Tribunal might serve as an institution to quiet civil war and promote Iraqi justice. Whether or not Saddam is remembered as a tyrannical war criminal or a stable leader might depend more on the outcome of the American occupation of Iraq and the ensuing civil war than any verdict from the Iraqi tribunal. However, if Iraqis feel that they have a vested interest in the outcome of the Saddam trial, it might also further Iraqi unity. But this requires keeping the Saddam trials in Iraq at all costs, and keeping the public involved. If the Saddam Trials are exported to some western country, the Saddam Trial risks looking like an instrument of ‘The West’ instead of an impartial Iraqi institution. This would not only risk the courts legitimacy in the eyes of the people who Saddam oppressed for 30 years, but might also waste a golden opportunity to establish Baghdad as a beacon for Iraqi justice and law. If the Saddam trial is kept in Baghdad, and ordinary Iraqi citizens can feel a sense of justice from the outcome, Iraqis will look to Baghdad as their capitol, not in fear of oppression (from a dictator, or outside occupiers), but as the source of liberation from within. While the elections and Iraqi constitution have helped begin the process of ‘Iraqi unity’, a sense of non-violent, non-oppressive state sanctioned justice might help further Iraqi unity.

Should Saddam be executed? Leila Sadat notes that imposing death on Saddam would mean that he cannot be tried for the other atrocious crimes that he has committed, and also that the danger of making him into a martyr exists if he is put to death. Though imposing the death penalty requires taking life, (one reason Saddam is on trial), ending Saddam’s life might have a positive psychological effect on his long-term victims, the Iraqi people. Realizing the death of an oppressive dictator who made life in Iraq frightening and miserable for its citizens might give those citizens a sense of hope and justice that they might otherwise be unable to fully appreciate. For this reason, Saddam should be executed.

Concerning Sunnis discomfort with Saddam’s lawyer’s inability to adequately prepare their defense, L. Wallace comments on the Nuremberg Trials, which were also carried out with some concern about the fairness to the Nazi’s defense. Wallace goes on to discuss how Saddam’s lawyers have been barred from questioning the legitimacy of the court. This is an important comparison because the perceived fairness of Saddam’s trial could help shape the civil war, which is erupting in Iraq. If Saddam is executed and the Sunnis feel that an illegitimate authority carried it out, tension could further escalate. With that said, by trying Saddam, and reaching a solid verdict with permanent consequences, the Iraqi Tribunal is essentially asserting their legitimacy, and as long as law and order can re-affirm that authority, the court will be deemed to be legitimate. If Sunni’s and others who are concerned about the fairness of the trial can be convinced that the trial is indeed fair, that can only help unite Iraq. For that reason, the defense must have appropriate time to prepare their case. That time frame should be limited for the interest of carrying out justice in an efficient and effective manner, but there is no reason why the defense shouldn’t know what will be discussed at the following hearing when the proceeding hearing ends. That way, if the Iraqi Tribunal chooses to execute Saddam, it is less likely that his supporters can use Saddam’s execution as a rallying point.

Posted by Robert Bliss (email) on 04/02/2006 @ 04:52 PM

Ms. Sadat's response to Mr. Scharf's and Mr. McNeal's essay concludes with her expressing the hope that Saddam Hussein be remembered as a war criminal and not a martyr. While Ms. Gundle is somewhat correct when she calls this a false dichotomy, she is wrong in her analysis.

Ms. Gundle reasons that the dichotomy is false in order to present her vision of Saddam Hussein as a tragic hero. While, by definition, this cannot be true since tragic heroes redeem themselves in some way before succumbing to their flaws, I am not going to engage the tragic hero discussion any further. War criminals are not heroic.

Still, her point that the dichotomy is false deserves consideration. It is possible, and likely, that Saddam Hussein will be considered by many to be a war criminal while some view him as a martyr. This varied view of Hussein and the trial should not prevent, however, the continuation of the trial and the carrying out of justice.

Just because some will view Saddam Hussein as a martyr should not cause us to question the legitimacy of the trial. Indeed, some considered the Nuremburg Trials to be political theory, and some surviving Nazi's probably beleived that the executed Nazi war criminals were martyrs. Their beliefs do not diminish the justice that was done at Nuremburg.

The trial of Saddam Hussein is not going to please everyone. It does not have to in order to be successful. Instead, the trial must continue so that the trial can mark the return of the rule of law to Iraq, and the ability of the new Iraqi government (albeit with external help) to secure this rule of law for all Iraqis.

Posted by Benjamin D. Malbasa (email) on 04/02/2006 @ 03:29 PM

Leila Sadat raises some interesting points in addressing Mr. Scharf and Mr. McNeal’s essay on whether Saddam’s trial is a show trial or has real legitimacy. Although some of her concerns are legitimate, the overwhelming amount of evidence against Saddam and his co-defendants will eventually serve to legitimize the case against them in Iraq and around the world.

Despite the fact that Saddam and his co-defendants have done everything they can to distract the Court and the world from the true issues (e.g., hunger strikes, showing up in underwear, etc.), the prosecution has gone forward and presented overwhelming evidence that Saddam and his henchmen were clearly responsible for the acts in Dujail (see Essay #34 above for details). This evidence, coupled with Saddam’s recent admission that he made the command decision and ordered the arrest, interrogation, trial and execution of the townspeople contrary to due process and International law, solidifies the case from an evidentiary perspective.

In war crimes prosecution, history has shown that where evidence is firmly on the side of the prosecution and supports the guilt of the defendants, society moves toward legitimizing the trial over the long run despite other issues. Even evidence uncovered after a trial lends support to the legitimization. No better example of this is the Nuremberg trials. Although German public opinion was initially negative towards the trials over issues such as fairness (similar to this case), the overwhelming evidence of Nazi atrocities and war crimes led to a legitimization of the trial in the long run. I believe here, as was the case with Nuremburg, the evidence will legitimize the trial in the long run despite the problems Leila mentions.

First, whether Judge Rahman should be recused or not may play into the perception of the fairness of the trial, but it does not take away from the weight of the evidence presented against the defendants. The prosecution would have presented the same evidence regardless of who was presiding over the case.

Second, the defense issues Leila raises (jurisdiction, venue, etc) as reasons why the Sunni’s will not likely accept the judgment of the Court do not relate to the sufficiency of the evidence presented against the defendants. In addition, although Sunni acceptance of the judgment of the Court is a concern for post-Saddam Iraq and stability in the region, as Leila states, it is probably unrealistic to think that the Sunni’s would have ever fully embraced the proceedings anyway because of their ethnic tie to the defendants. In the future, concern over whether the Sunni’s accept the judgment will likely diminish because of the Sunni’s desire to be a part of post-Saddam Iraq (unless of course the country is split up by a civil war). Hanging on to a belief that Saddam was tried unfairly would likely get in the way.

Third, although I agree with Leila that there will be challenges to future cases if the defendants are convicted and sentenced as well as the importance of establishing the historical record, this does not take away from the legitimacy of this specific trial.

In the end, Iraq and the world’s view of the strength of the evidence against the defendants will determinate the legitimacy of the trial. Although the perception of whether a trial is fair is critical, most realize that there is no perfect situation. If people believe the evidence was presented fairly, was truly legitimate, and was firmly on the side of the prosecution, they will ultimately come to the conclusion that the trial was fair and justice was served. Just as in Nuremburg, the weight of the evidence will be what ultimately convinces people whether crimes were committed and the perpetrators of those crimes were before the court. Here, the weight of the evidence against Saddam and his co-defendants is significant and will ultimately serve to legitimize the trial.

Posted by Steve Rado (email) on 03/31/2006 @ 07:25 PM

Saddam has managed to distract Americans from believing that his trial is a legitimate judicial proceeding. The trial of Saddam Hussein may be a “show trial” in one sense because of the extensive quantity of evidence that has been presented, as shown by Prof. Scharf and Mr. McNeal; however, it may also be a “show trial” in the theatrical sense, as suggested by Ms. Sadat. Amid the antics of turning into the courtroom into what Americans have consistently been calling a circus ring, there stands (or sits, as the case may be) a former head of state. Americans are accustomed to former presidents who never lose the dignity or stature that comes with having had an entire country under their control.

The episodic events that make the Saddam trial seem like a scripted show does not fit the mold of American’s conception of how a head of state behaves. The events can be explained by the fact that the defendant is a former tyrant, without a precedent set by forerunners and standards of diplomacy restricting his behavior. In fact, it seems that Saddam’s fits are the perfect extension of what a man who had reveled in statues and murals of himself would do. He is in the business of getting attention; proposed hunger strikes, wardrobe surprises, and rants are currently his only means of getting this attention. While the judge has a red button to mute the rhetoric and the ability to halt media broadcast, such methods are not going to stop the efforts of a former leader from trying to get his way. Saddam has always been the star of his own show, and nothing the judge does seems to stop him from trying to maintain that status.

Americans continue to roll their eyes at Saddam’s stunts, but as a country, America is unaccustomed to extravagant leaders. One must remember that Saddam’s behavior is congruent with what the Iraqis had been living with for the duration of Saddam’s tyranny. No amount of showing up to trial in undergarments and spouting of political agenda is stopping the tribunal from bringing justice. The judicial process is familiar to Americans, but the defendant is not. Despite Americans’ distraction by Saddam’s antics, this is a real trial; it is just proceeding with a little bit of Saddam’s own personality added to it and the Saddam trial must go on.

Posted by L Wallace (email) on 03/31/2006 @ 01:31 PM

Leila Sadat suggests that Saddam Hussein will be remembered either as a martyr or as a war criminal, and expresses a clear preference for the latter. However, in view of the complexity of human nature and human circumstances, this strikes me as a false dichotomy. Saddam may well be a war criminal, though he was and is much, much more besides. Given that he is being tried by people who make no secret of the fact that they want him dead, it also seems highly probable that he will die a martyr’s death. (The idea that the legitimacy deficit of the IST can somehow still be fixed is surely fanciful.) British Iraq war veteran Colonel Tim Collins recently argued that “by putting Saddam on exhibition in a Baghdad courtroom, we have unwittingly enabled him to fulfil his own prophecy that he would one day demonstrate his courage and patriotism by giving his life for his country and his people.” (Mail on Sunday, March 19th) Saddam certainly deserves to be remembered as a martyr because he could have easily avoided his current fate if he had been willing to sacrifice his principles and follow the path of expediency as so many other Arab rulers have done.

In my opinion, Saddam Hussein has all the makings of a tragic hero – he is a flawed but nevertheless impressive human being. Prince Hassan of Jordan has been quoted by the acclaimed Canadian journalist Paul William Roberts as saying that he respects Saddam for many qualities never mentioned in Western media, not least of which is his love for Iraq. “He truly loves his country,” Hassan told Roberts. “It is his passion – no one can take that away from him.” (A War Against Truth. Vancouver, 2004) Thanks to Saddam, Iraq became the most progressive and dynamic country in the Middle East in the 1970s. He nationalised the oil industry and invested the proceeds in free education and health care for the masses. He carried out land reforms and gave equal rights to women. The language and cultural identity of Iraq’s Kurdish minority also received full recognition unlike in Turkey and Iran. The war crimes which are laid at Saddam’s door were committed in response to grave threats to the unity, stability and identity of Iraq, not out of malice as is so often claimed.

Saddam Hussein is undoubtedly the most maligned and arguably the most misunderstood person on earth. Even now, poisonous goblins in the right-wing American media continue to churn out a seemingly endless stream of lies about him. For many in the West, and especially the USA, Saddam’s trial has been a revelation for the simple reason that it is the first opportunity they have ever had to get a first hand impression of him as a full-blooded human being rather than as a ghastly phantom, a projection of America’s own shadow. As one enthusiastic blogger observes, the show trial in Iraq has revealed Saddam’s hidden charm: “He’s obstinate, sassy, and full of a tough vanity, and yet he couldn’t be more cuddly…Saddam is a master showman…His eye-rolling contempt for the process possesses a certain dignity – as if he knows the score and has the fearlessness to point it out.” For his part, Colonel Collins ventures to suggest that Saddam’s “charisma and resolve in the dock” have made him “hard to kill” – we’ll see.

Posted by Alison Gundle (email) on 03/27/2006 @ 07:03 AM

I would like to play the devil's advocate and argue that Saddam will go down in history as a horrific murderer and dictator who did not even deserve the dignity of a trial before his execution. However, there must be a trial and it must be fair and reasonable under the circumstances. I believe the court is doing close to its best at attempting to control Saddam and the other theatrics of the court, but the court must do better if it wants to retain the respect of the international community.

First of all, Judge Rahman should be recused. He cannot be objective if the defendant allegedly murdered members of his family (i.e., he clearly has a personal interest in the case).

Second, the court should be more fair towards the defense. The defense should have had time to prepare for trial (they received the file the morning of). The court should reconsider moving the trial to another location because of the clear insecurity of the area. The court should also address the issues of jurisdiction and venue to show it is working with the defense, and to establish the legitimacy of the trial. Finally, the court must allow the defense to properly develop its defense for Saddam. International law requires a fair trial; this is history in the making and it would be greatly advantageous if the court worked harder to ensure an objective and fair trial.

Third, I believe the court should try Saddam against all his major crimes before any judgment. The victims must receive some vindication. After the judgment of this first trial, in which he will probably get the death penalty, the following trials will mean nothing to Saddam or to the world. This first trial must be a symbol of the destruction Saddam has brought to his people and other peoples. It will be unnecessary and redundant to try him again and again for crimes when he is already sentenced to death.

Overall, I believe that the IST must do more to ensure a reasonably fair and objective trial.

Posted by Katherine Middleton (email) on 03/25/2006 @ 09:32 PM

As the world has once again recently observed with the Dubai port deal, the U.S.’s focus of the War on Terror remains steadfast on Muslim dominated Arab countries, even those of which the U.S. considers its allies. Since the Saddam Trial represents such an important milestone for the Global War on Terror, its legitimacy is critical to the U.S. justifying its ongoing efforts around the world, and especially in the Middle East. The legitimacy issue of the Iraqi Special Tribunal (IST) extends to further issues of justice and fairness discussed throughout many of the Expert Debates posted on this blog (See e.g. Issue #3, #8, #12, and #34). Before I comment on some of the issues raised in the debates, I think it is important to stress that the Saddam Trial needs to be legitimate to the Iraqi people first and then to the international community second in order to help legitimize democracy’s footprint in Iraq.

Under Issue #3, both Linda Malone and Christopher M. Rassi argue that the IST stands as a legitimate judicial institution not only because it was created by a legitimate governing body – the unelected Iraqi Governing Council (ICG) – but also because the Statute for the IST was legitimized by the newly democratically elected Transitional National Assembly through the passage of the 2005 Statute. While both of these acts lend much credibility to their respective arguments, they certainly are not enough to resolve the legitimacy debate. First, though recognized as a legitimate governing body by the Security Council, the ICG was unelected and heavily influenced by the U.S. Second, the newly elected Iraqi Transitional Government (ITG) may have acquiesced to the IST in passing the 2005 Statute, but again, the government’s dependency on the U.S., through aid and other means of support, definitely casts doubt on it serving as an independent lawmaking body. Moreover, due to the severe ethnic group divide in Iraq – Arabs (~80% of population) and Kurds (~20%) – as well as the religious group rift – Sunni (~60%) and Shi’a Muslims (~35%) – minority group interests will be hard pressed to be adequately represented. Madison’s Federalist Number 10 - the “beware of factions” paper - is especially prevalent in a country like Iraq, where religious and ethnic battles have waged for centuries. If the trial is to be legitimate to all Iraqis, then all Iraqis need to at least have their voices be heard. With many of the judges being of Kurdish and Shitte descent, this only compounds the problem, as Sunni Muslims may feel unnoticed. I praise Leila Sadat for addressing this concern under Issue #34, especially since Sunni-Shi’a tensions in central Iraq have been exceedingly hostile after the bombing in Samarra on February 22, 2006. In fact, former Iraqi Prime Minister Ayad Allawi told the BBC in a TV interview on March 19, 2006 that Iraq was in the middle of a Civil War due to the increase in sectarian killings across the country. If this sectarian violence continues to spread throughout the Middle East, it will undoubtedly fracture democracy’s fragile foundation within the region and cast even more doubt on the legitimacy of the IST.

Before the IST began any of its hearings, Laura Dickinson argued under Issue #3 that Iraq should consider appointing foreign judges to the IST to enhance the legitimacy and capacity of the court. I believe that the involvement of international judges in subsequent trials could actually help to further legitimize the IST. That is, many of the commentators who argue that the IST is not a legitimate legal institution start by arguing that the U.S.’s invasion of Iraq was not a legitimate and legal action under international law. By involving a diverse array of U.N. members (even those that vehemently opposed the invasion of Iraq) to sit on the tribunal alongside Iraqi jurists, the IST would distance itself from the U.S. and appear as a more independent judiciary.

Finally, I ask, however, if not the IST, then what? Even if this case could have been brought in front of an international tribunal like the International Criminal Court (ICC) or an ad hoc war crimes tribunal, would the legitimacy problems be solved? The U.S. has yet to ratify the Rome Treaty, so its position with respect to any Iraqi case brought before the ICC would be weakened significantly. In turn, this would help quiet those who argue that the IST is under U.S. control. Ultimately, however, this hypothetical arrangement would bring too much confusion to an already clouded issue. In conclusion, the IST, though not infallible, should be seen as a legitimate judicial institution by the global community. Including more Sunni interests and adding foreign justices to subsequent trials may help it to be judged as a legitimate institution by the Iraqi people.

Posted by Matt VanWasshnova (email) on 03/19/2006 @ 02:00 PM

Ms. Sadat expresses concern regarding the creation of an accurate historical record that depicts Saddam as a war criminal. The appearance of an impartial trial is critical in order to cultivate a suitable memory of Saddam, and a guilty conviction accompanied by the death penalty for the Dujail trial will make it difficult to maintain the image of impartiality during subsequent trials. Assuming that article 27(B) does not apply, the court should conduct the subsequent trials in the most neutral manner possible. Although the successive trials may be an imperfect process, conducting them will likely support due process and develop an appropriate portrayal of Saddam. The trials will produce additional exposure of what occurred during Saddam’s reign and will draw public attention to accurate documentation of the heinous crimes committed by this war criminal.

Further, given that it is a US sponsored trial, it is difficult to ignore certain commonly recognized principles of US justice. Every state in the US recognizes the significance of victim impact statements. Victims of crime and their families have the right to address the court. This opportunity allows victims to personalize the crime and to express the impact it has had on them and their families. These statements portray the truly horrific nature of the crime committed and may facilitate victims in their emotional recovery. Thus, even if the subsequent trials appear futile in regards to Saddam’s punishment, the additional attention brought to his history of violence and the lasting effect it has had on a nation may help form the proper memory of Saddam Hussein, the war criminal.

Posted by Gillian Lindsay (email) on 03/18/2006 @ 03:05 PM

Ms. Sadat finishes her essay by concluding that the historic record brought forth to implicate Saddam Hussein with the Dujail killings case is not sufficient by itself to hold that Hussein’s legacy will be that of a war criminal. However, I believe that Saddam’s legacy is not dependant on whether his ultimate sentencing is only in regards to the Dujail killings, rather than potentially numerous heinous acts for which he could be found guilty. Instead, I believe his status as either a “martyr” or a “war criminal” will be dictated by how the people of the world perceive the fairness of the trial.
Those who believe this trial is being fairly conducted will likely remember Hussein being charged, tried, and sentenced for the Dujail killings and consider him a war criminal guilty of an atrocious act against humanity. Even though Hussein may not be tried for the other charges placed against him, he nonetheless will still most likely receive the death penalty, and will thus suffer the same fate that would have resulted from being convicted of the other counts. However, individuals who view this trial as unfair will, undoubtedly, remember Hussein as a martyr, regardless of whether he is found guilty of just one, or all, of the crimes with which he has been charged. In these viewers’ minds, they will see a man who was brought to trial in front of a biased, carefully hand-picked judicial body which left Saddam with little, if any, chance to successfully plead his case and, ultimately, to protect his life.
Saddam’s legacy will not be decided by whether or not his ultimate sentence was based off one heinous act or a collection of acts against humanity. Instead, it will be determined by a detailed and thorough examination of the fairness of his trial. Therefore, the Iraqi Special Tribunal (IST) must act in a manner that shows the world that every aspect of this trial process strictly complies with international law. For example, as Professor Doebller notes in Issue #8, the IST should make certain that Hussein’s due process rights, such as his right to work freely with his attorneys, are fully preserved. Further, it should ensure that any pleading or motion Hussein’s party requests is adequately considered by the court rather than just rejected immediately. By following international protocol to the minutest detail, the court has the power to end to this legacy debate by showing impartiality to the defendant and promoting a true sense to the term “justice.” If the IST acts in this manner, and Hussein is still sentenced to death for the Dujail killings despite having had every opportunity available to assert his innocence in a fair and just court of law, people around the world will have little choice but to realize and remember that Saddam Hussein was not a martyr, but a war criminal who committed at least one atrocious act against humanity.

Posted by Abiman Rajadurai (email) on 03/16/2006 @ 10:41 PM

It comes as no surprise that Scharf and McNeal do not know the difference between a show trial and a fair trial. When the ringmasters – and the judge – identify unreservedly and unashamedly with the prosecution standpoint and fail to take other perspectives into account, as in the case of the US sponsored trial of Saddam Hussein, what you have is a SHOW TRIAL. It's blindingly obvious! The outcome is a foregone conclusion and the whole process is designed to further the political agenda of the ringmasters and their protegés.

By failing to recognise that this sort of trial cannot possibly be fair, and doggedly presenting the prosecution case for the umpteenth time, Scharf and McNeal merely confirm their own unsuitability for the role which they have arrogated to themselves.

Posted by Alison Gundle (email) on 03/13/2006 @ 07:16 AM