ASIL Insight New Developments Regarding the Prosecution of Saddam Hussein by the Iraqi Special Tribunal By Leila Nadya Sadat
August 5, 2005
On December 10, 2003, just days prior to the capture of Saddam Hussein by U.S. armed forces, the Iraqi Governing Council adopted a Statute for an Iraqi Special Tribunal (IST) for Crimes Against Humanity. The IST Statute contains several provisions, many of which were derived from the Rome Statute for the International Criminal Court, for charging Iraqi nationals and residents with genocide, war crimes, and crimes against humanity, as well as certain domestic offences. The crimes must have been committed between July 16, 1968 and May 1, 2003 to fall within the Tribunal’s jurisdiction.
The IST represents an unusual effort to use international law, local participants and foreign financial and logistical support to effectuate post-conflict justice. It is largely funded by the United States, and heavily staffed by U.S. personnel, particularly behind the scenes. Although Saddam was formally transferred to Iraqi legal custody on June 30, 2004, he remains in U.S. physical (military) custody. Although the judges are Iraqi nationals, they were appointed by the Iraqi Governing Council, which was itself appointed by the Coalition Provisional Authority, which represented the U.S. occupying forces in Iraq. The Statute provides that Iraqis must serve as judges, prosecutors, and defense counsel, with only limited possibilities for non-Iraqis to participate, either by seconding the defense team (which must be headed by an Iraqi national) or by serving as judges.
For the past 18 months, the IST has emitted conflicting signals regarding the means and process by which it will ultimately bring Saddam (and others accused) to trial. First, on July 1, 2004, Saddam Hussein appeared before an investigating judge (without counsel) in a widely televised hearing, and a list of seven preliminary charges was read to him, which included the killing of religious figures in 1974, the gassing of Kurds in Halabja in 1988, the killing of the Kurdish Barzani clan in 1983, the killing of members of various opposition political parties over the last 30 years, the 1986-88 ''Anfal'' campaign of displacing Kurds, the suppression of the 1991 uprisings by Kurds and Shiites, and the 1990 invasion of Kuwait. However, no formal indictment was issued at that time. Then, in December 2004, interim Iraqi Prime Minister Ayad Allawi stated that pretrial hearings in the war crimes cases against some of Saddam’s senior aides, including the notorious General Ali Hassan al-Majid, widely known as “Chemical Ali,” would begin shortly. This led some commentators to speculate that the prosecution intended to build its case against Saddam by first trying his senior aides, thereby establishing a body of evidence upon which a subsequent trial of Saddam could be based. Although preliminary hearings followed Prime Minister Allawi’s announcement, no trial has yet been scheduled in any of these cases.
More recently, on July 18, 2005, in a statement which has added to the confusion surrounding the Tribunal’s intentions, Raid Juhi, chief investigative judge, announced that he had ended his investigation of a case relating to the 1982 killing of as many as 150 residents of the village of Dujail, northeast of Baghdad, and was referring the case against Saddam and other accused to a trial chamber. He also announced that the trial date would be “set in the coming days” by the five-judge panel that will preside at the trial. A video of Saddam’s appearance before the Tribunal appeared on the Arabic satellite television station, al Arabiya. According to press reports, the former dictator, his half-brother Barazan Ibrahim Al-Hassan, former Vice-President Taha Yassin Ramadan, former Baath party official Awad Hamad Al-Bandar and others will also be tried in connection with this case.
The IST’s decision to take up the Dujail case first, and the establishment of the IST itself, raise very interesting questions of international criminal law and procedure. On the one hand, the decision to proceed with an early trial of Saddam has been welcomed by Iraqi President Jalal Talabani as a means to combat the growing insurgency in Iraq. Indeed, some reports in the media (it is not clear how credible they are) suggest that the Iraqi government wants a quick trial, followed by a quick execution. Others have argued that the IST will be effective and fair in carrying out trials because the judges have been “carefully vetted,” and free from outside political interference. Because the IST has no jurisdiction over crimes alleged to have been committed by U.S. troops during the invasion and occupation of Iraq, however, some observers have sharply contested its legitimacy.
A relatively quick trial for the massacre at Dujail might well be a way for the IST to prove its relevancy in a country that looks increasingly headed toward civil war. From this perspective, Dujail is arguably a good place to start for the prosecution, because of the discrete and concrete nature of the charges. On the other hand, although other war crimes courts have been criticized for starting with low-level perpetrators (such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic case), and then “working up” to higher-level perpetrators, that appears, in retrospect, to have been a relatively successful strategy.
In the case of the IST, the Tribunal appears now to be following a very different approach, bringing as its first “test” case the trial of a relatively minor crime committed by its top defendant. In light of the current political situation in Iraq, the pressure to convict Saddam quickly for any charge that is brought will be extraordinarily high. Assuming Saddam is convicted of the Dujail massacre (and subsequently executed), it remains to be seen whether any or all of the more serious crimes that he allegedly committed will ever be adjudicated in court, although Judge Juhi has stated that investigations are “in their final stages” regarding the Anfal campaign against the Kurds, atrocities committed against the Shiites after the first Gulf War, and other charges as well. This raises the possibility that Saddam will be tried in a series of separate cases, or that new counts will be added seriatim to the Dujail case, raising both due process and political concerns. Finally, although proceedings before the ICTY are often criticized for their length, they have undoubtedly served a didactic function, particularly in the Milosevic case where the prosecution (like Milosevic himself) has often introduced video footage of atrocities in order to influence not only the judges that will ultimately decided Milosevic’s guilt or innocence, but the audience in Bosnia and Serbia who are following the trial with interest. Like Milosevic, Saddam is alleged to have committed crimes over a period of many years, and in more than one conflict. If Saddam’s trial is perfunctory, and his lawyers cannot put on an adequate defense, it is unclear whether any longterm benefit from the trial will accrue.
Saddam’s defense counsel (or at least those who claim to be representing him) have been pressing for the proceedings to be moved to either an international tribunal, or at least out of Iraq, arguing that neither they nor their client are safe in Iraq (unlike the Prosecution team which, they argue, is fully protected by the U.S. military). Additionally, although the right to counsel is granted by the IST rules of procedure, counsel is not mandated to be present at what common law lawyers would regard as the arraignment or indictment phases, meaning that Saddam (and other accused) have been interrogated without defense counsel present. Human rights organizations have criticized the Statute for failing to include the requirement that guilt be proved beyond a reasonable doubt, for permitting trials in absentia, and for failing to sufficiently protect both the right to counsel and the right to remain silent.
While it is not possible to predict the ultimate outcome of the current proceedings against Saddam Hussein, there is no doubt that, at the moment, skepticism remains as to the IST’s credibility and legitimacy.
In a recent and bizarre twist to the confusing signals the IST itself has emitted, Ahmed Chalabi, a former Pentagon ally whose nephew, Salem Chalabi, was initially given the job of Director General of the IST, announced his intention to “purge” the IST of nineteen former Baath party members, including Judge Juhi. Although President Talabani quickly issued a statement that the Tribunal, its work and its judges would be protected, and Judge Juhi himself appeared and confirmed that his investigations were still ongoing, once again it appears that the IST is extraordinarily vulnerable to the shifting vagaries of Iraqi politics. According to the media, officials on the Tribunal have stated that Chalabi is attempting to purge Juhi as a show of support for his new political ally, Moktada al-Sadr, who was the target of an arrest warrant issued by Judge Juhi in connection with the killing of a U.S. backed Shiite Cleric. Nine individuals have already been purged from the IST by the de-Baathification Commission headed by Chalabi, who has flatly denied any intent to interfere with the work of the Tribunal. Regardless of Chalabi’s motives, the political travails of the IST, as well as the recent turnover in the leadership of the U.S. Regime Crimes Liaison Office which serves as the IST’s “back office,” has made the IST’s precarious situation even more tenuous, suggesting that perhaps the establishment of an ad hoc international tribunal, similar either to the ICTY or to the Special Court for Sierra Leone, may have been or may become a more appropriate forum to address the crimes committed under Iraq’s prior regime.
Finally, the increasing power of the insurgency in Iraq has the potential to turn an already difficult task into an impossible one. As the trials against Saddam Hussein and his associates move forward, hopefully neither the rights of the accused nor the interests of justice will be sacrificed.
About the author Leila Nadya Sadat, an ASIL member, is the Henry H. Oberschelp Professor of Law at Washington University in St. Louis. She is the author of The International Criminal Court and the Transformation of International Law and many articles on international and comparative law.
 IST Statute, supra note 1, art. 10. These domestic offences include attempting to manipulate judges, squandering of public assets and funds and the "threat of war or use of the armed forces of Iraq against an Arab country," which has been a crime in Iraq since 1958. Seeid. article 14.
 In 2003, Congress appropriated U.S. $75 million as part of the Iraq Relief and Reconstruction Fund to
support the work of the IST, an amount that was recently expanded to U.S. $128 million. Bureau of Resource Management, 2207 Report on Iraq Relief and Reconstruction, April 6, 2005, at 30, available at http://www.state.gov/s/d/rm/rls/2207/apr2005. This supports the work of the Regime Crimes Liaison Office, whose staff has played a leading role in all operations of the IST – the building of courtrooms, the conduct of investigations, including interrogations, and the training of IST staff. See Bureau of Resource Management, 2207 Report on Iraq Relief and Reconstruction, October 5, 2004, at 28-29, available at http://www.state.gov/s/d/rm/rls/2207/oct2004; Bureau of Resource Management, 2207 Report on Iraq Relief and Reconstruction, January 5, 2005, at 41, available at http://www.state.gov/s/d/rm/rls/2207/jan2005.
 At least in some instances, however, defense counsel are apparently present during questioning. For example, the IST’s official website claims that Saddam was questioned in the presence of defense counsel Khalil Abd Salih Al-Dulaimi on June 12, 2005, regarding the Dujail massacre. Seehttp://www.iraqispecialtribunal.org/en/press/releases/0017e.htm.
 One proposal to enhance the Tribunal’s domestic acceptability is to adopt legislation that would essentially re-establish the IST as a truly domestic institution. Andy Mosher, Iraqi Panel Files Case Against Hussein: Deposed Leader Accused in 1982 Shiite Massacre, Wash. Post Foreign Service, July 28, 2005, at A01.
 Edward Wong, Iraqi Leader Vows to Block Purges on Hussein Tribunal, NY Times, July 29, 2005, at A9.
See generally Diane F. Orentlicher, Venues for Prosecuting Saddam Hussein: The Legal Framework, ASIL Insight, December, 2003; Leila Nadya Sadat, U.N. Tribunal is best Option, USA Today Editorial, Dec. 16, 2003.
Copyright 2005 by The American Society of International Law ASIL
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