Saddam Hussein on Trial

Saddam Hussein went on trial on Wednesday October 19 before the special tribunal set up in Iraq to enforce justice for the worst crimes of his regime.  In an initial session that lasted around three hours, Saddam challenged the legitimacy of the court and pleaded not guilty to charges of murder, torture and unlawful imprisonment.  Following a request from defense lawyers for Saddam and his co-defendants to study the charges against their clients, the trial was adjourned until November 28.

The appearance of Saddam as a criminal defendant has been anticipated ever since he was captured by US forces in December 2003.  A good deal of the international coverage has taken a critical view of the tribunal and its rules of procedure.  Certainly much about how the trial will be conducted remains unclear even after the opening session.  However it seems too early to write off the proceedings as fundamentally illegitimate.  Not until the trial is properly underway will it be possible to judge how far it meets reasonable standards of due process, and avoids the stigma of a show trial.

Presiding Judge Rizgar Mohammed Amin, back to camera, speaks to the defendents as the trial of Saddam Hussein and seven others begins in a heavily fortified courthouse in Baghdad's Green Zone Wednesday Oct. 19, 2005. (AP Photo/Bob Strong, Pool)

The case in which Saddam is appearing as defendant concerns events in the town of Dujail, where an assassination attempt against the former Iraqi leader was met with a harshly repressive response including the execution of at least 143 people.  Seven other people will be tried alongside Saddam including the former chief judge of the Revolutionary Court that condemned the Dujail victims to death, the former head of Saddam’s intelligence service (who is Saddam's brother in law) and former Vice President Taha Yassin Ramadan. 

The tribunal will hear separate cases relating to the different crimes it is investigating, so Saddam could also face charges on other subjects such as the Anfal campaign against the Kurds and his repression of the Shia uprising in the south of Iraq in 1991.  The Dujail case was apparently picked for the first trial because it presents a relatively contained set of events with clear documentation.  The tribunals' chief investigative judge Raed Juhi said as the trial began that he was close to bringing charges relating to Saddam's Anfal campaign against the Kurds, in which tens of thousands of people are alleged to have been killed.

Although Saddam’s defence team was earlier allowed to see the dossier of evidence that will be presented during the case (including a document condemning the men from Dujail to death signed in Saddam’s hand), it was not until the trial's opening that they heard the formal charges.  Saddam will be tried for willful murder, torture and unlawful imprisonment which are classed under the tribunal's statute as crimes against humanity when committed as part of a "widespread or systematic attack directed against any civilian population".

The tribunal’s chief investigative judge, Raed Juhi, said last week that the trial would be “public” and that he hoped it would be broadcast on live television.  In the event, the footage was shown with a short delay -- although the sound was frequently disrupted by technical problems.  A desire for openness was also evident in the decision by the presiding judge Rizgar Mohammed Amin to allow his face to be shown on video despite the increased security risk that this entailed (the other judges remained off-camera).

Judge Amin appeared to handle the proceedings in a good-humoured and forceful way.  The first day of the Saddam trial was as much as anything a preview of the theatrical battle between these two men.  While Saddam appeared vigorous and defiant (and showed his alertness to public perception by carrying a copy of the Koran) Judge Amin struck an effective balance between honouring the rights of the defendants and asserting the authority of his position.

The precise contours of Saddam’s defence team remain unclear.  He was represented on the opening day of the trial by his chief Iraqi lawyer, Khalil al-Dulaimi.  In addition, a London-based Iraqi lawyer, Abdul Haq al-Ani, has been retained by Saddam’s family, but was not be present in Baghdad for the first day of the trial.  A prominent British barrister, Anthony Scrivener QC, has been approached to represent Saddam in court but it is not yet clear whether he will take part in the trial.

Following a line of argument that his lawyers have already deployed, Saddam said that the tribunal was illegitimate because it was set up by a regime imposed by American aggressors.  "I do not respond to this so-called court," he said, charging that it had been set up on a "false basis."  Saddam's lawyer also complained that government officials had made comments that prejudged the outcome of the trial.

The statute for the Iraqi special tribunal was originally drafted by a team of Iraqi lawyers and legal specialists from members of the US-led coalition that occupied Iraq in the spring of 2003.  It was endorsed by by the coalition-appointed Iraqi Governing Council but formally set up through an order of the Coalition Provisional Authority.   To avoid the stigma of conducting trials under an occupation-imposed statute, Iraq’s National Assembly revoked the statute in August 2005 and passed a law setting up a new body known as the Supreme Iraqi Criminal Tribunal.

The statute of the SICT is fundamentally the same as the earlier IST, with a few notable differences.  Most significantly, the earlier statute imposed an obligation on the court to appoint non-Iraqi advisors to the judges and investigators; in the later statute this has changed so that the court is allowed to appoint advisors but is not required to.  Also, the earlier statute said that the tribunal would operate according to its own specified rules of procedure and evidence, supplemented where unclear by Iraqi criminal procedure.  The new statute says the tribunal should apply both Iraqi rules of procedure and its own specified rules.  In this way, the statute has evolved to make the court a more exclusively Iraqi body, more closely tied in to the broader structure of Iraqi law.

Although the tribunal's statute gives important rights to the accused -- including the right not to be forced to testify against himself -- Iraqi criminal procedure lacks some important protections.  For instance, it does not require that defendants be found guilty only if the case against them is proved beyond a reasonable doubt -- instead it says the case need only be proved to the "satisfaction" of the judge.  Nevertheless if the protections in the statute are observed the tribunal might help import some guarantees of due process into the Iraqi legal system. 

Another focus of controversy has been the fact that Iraqi law allows the death penalty.  British lawyers working on the drafting of the initial statute made strenuous efforts to persuade the Iraqis involved to forbid the death penalty in the tribunal's statute, but were ultimately unsucessful.  Although many international observers will regret the tribunal's ability to issue death sentences, it may be that it could not have been excluded without alienating a large part of Iraqi society from the judicial process.

There is some uncertainty about what will happen if Saddam does receive a death sentence for the Dujail case.  Under the tribunal’s statute, sentences must be carried out with 30 days of the date that they become final (in other words, after all appeals are exhausted).  However, a death sentence would require approval from the Presidency Council (the President and two Vice Presidents) and it is possible that they could delay approval until Saddam had faced trial on other charges.  Otherwise, it is possible that he might be executed before cases could be brought on what are generally regarded as the most serious charges against him, relating to the attacks on the Kurds and Shia populations.

Although many observers have criticised the tribunal for failing to include an international element (as for instance with the Sierra Leone Special Court, which has a mix of Sierra Leonean and international judges), it may help the credibility of the court within Iraq that it is a purely Iraqi body.  Cherif Bassiouni, an Egyptian-American legal scholar who is one of the Arab world's most prominent international lawyers, recently wrote that even the possibility of appointing foreign judges was "an insult to Iraqis."  The idea that those who violate international law should be tried without their own judicial systems if possible is in keeping with the judicial approach of the recently-instituted International Criminal Court, which only steps in when national systems are unable or unwilling to prosecute. 

However it might have been preferable for the court to appoint official foreign advisors, rather than relying on the behind-the-scenes support of the U.S.-led coalition's War Crimes Liaison Office as the trials get underway.

A more serious concern relates to the independence of the court within the Iraqi political system.  The run-up to the trial has been partly overshadowed by manoeuvring over the composition of the tribunal, with deputy Prime Minister Ahmad Chalabi threatening to dismiss many of the judges and other officials.  The legitimacy of the court would suffer it was seen to be responding the political needs of the government or some of its members -- for instance by rushing cases or appearing to be pushing quickly toward Saddam's sentencing and execution.

Another uncertainty relates to a provision in Iraqi law that forbids the execution of anyone over 70 years old.  Saddam Hussein is now 68, and a desire to have him executed before he reaches the threshold of 70 could lead to curtailed trials or a decision not to prosecute Saddam on some of the most serious crimes alleged against him.

Finally, the biggest test the tribunal may face concerns its ability to mount fair and efficient trials in such a violent and unstable country.  Problems with persuading witnesses to come forward were cited by Judge Amin as one reason for his decision to adjourn the trial.  As already discussed, the judges have had to strike a balance between the transparency of the trial and their own personal safety.  On the day after the trial, the lawyer defending the former head of the Revolutionary Court was abducted and his dead body was found the following day.

Related Links

Saddam Hussein Trial Blog

Iraqi Special Tribunal

Saddam's Trial: The Needs of Justice

By Veerle Opgenhaffen and Hanny Megally

OpenDemocracy, October 19, 2005

The Former Iraqi Government on Trial

Human Rights Watch Briefing Paper

October 2005

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