The Iraqi High Tribunal's Dujail Trial Opinion
From October 2005 to July 2006, Saddam Hussein and seven co-defendants were tried for crimes against humanity in the first of several planned trials before the Iraqi High Tribunal (IHT) -- a judicial institution originally created by the Iraqi Interim Governing Council on December 10, 2003, and later approved by the democratically elected Iraqi National Assembly on August 11, 2005. The IHT has been called an 'internationalized domestic court' since its statute, elements of crimes, and rules are modeled upon those of the U.N. ad hoc war crimes tribunals and the permanent International Criminal Court; its statute provides that the IHT is to be guided by the precedent of the international tribunals; its judges and prosecutors were assisted by foreign experts from the International Bar Association, an international academic consortium of law schools, and the U.S. Regime Crimes Liaison Office; and a team of both foreign advisors and Iraqi defense counsel from the Defense Office represented the defendants when their retained lawyers were not in court. But the IHT is not fully international since it was established by a domestic legislative act, its seat is in Baghdad, its default procedural rules derive from the Iraqi Code of Criminal Procedure, its Prosecutor is Iraqi, and its bench is composed exclusively of Iraqi judges.
The first IHT trial, which was televised gavel-to-gavel in Iraq, dealt with allegations that Saddam Hussein and his co-defendants responded to a 1982 assassination attempt in the town of Dujail by attacking the inhabitants with helicopter gunships; destroying the town's farmland, date palm groves, and water supply; arresting 300 residents and interrogating them at torture centers where one-third died; interning whole families at a remote desert compound for four years; and referring the survivors to the Revolutionary Court where they were found guilty without a real trial, sentenced to death, and executed.
On November 5, 2006, the five-judge IHT Trial Chamber announced its verdict and sentence: one defendant, Mohammed Azawi Ali, was acquitted outright; three defendants, Mizhar Abdullah Ruwayyid, Ali Dayih Ali, and Abdallah Kazim Ruwayyid, who were local Ba'ath party members, were given 15-year sentences; Taha Yassin Ramadan, the former Vice President of Iraq, was sentenced to life in prison; and Saddam Hussein, Awad al-Bandar, the former President of the Revolutionary Court, and Barzan Ibrahim, the former head of the Iraqi Intelligence Service, were sentenced to death.
Despite the fact that IHT Rule of Procedure 58 obligates the Trial Chamber to produce a 'reasoned opinion in writing' to support its judgment, [1] no written opinion was issued at the time of the verdict. Some two weeks later, on November 22, 2006, the Arabic version of the Dujail Trial Opinion was finally completed and posted on the Tribunal's website and provided to Defense Counsel and the Prosecutors, and an 'unofficial' English translation was issued on December 3, 2006.[2] The English version of the Opinion is 298 single-spaced pages-long, making it one of the longest opinions ever issued by a war crimes tribunal.
The Dujail trial was marred by assassinations of defense counsel, resignation of judges, disruptive outbursts by defendants and their lawyers, hunger strikes, boycotts, and even underwear appearances - making it one of the messier trials in legal history. On November 20, 2006, two days before the issuance of the Arabic version of the Dujail Trial Opinion, Human Rights Watch published a 97-page report, concluding that the 'proceedings in the Dujail trial were fundamentally unfair' and that 'the soundness of the verdict is questionable.'[3]
An examination of the recently published Dujail Trial Opinion, however, may supply some answers to the criticisms. For example, the Trial Chamber has been criticized for not transparently resolving the Defense's pre-trial motions. The first 54 pages of the Dujail Trial Opinion are devoted to the Defense pre-trial and trial motions and other challenges, including (1) the issue of the legality of imposing the death penalty in light of the fact that the Coalition Provisional Authority had suspended it in 2003; (2) the challenge to the legitimacy of the Tribunal in light of the fact that it had initially been established during the period in which Iraq was subject to the authority of an Occupying Power; (3) the Defense claim that it did not receive the case dossier and other evidence in a timely manner; (4) the Defense claim that the security conditions and the killing of three defense counsel during the trial rendered the climate inherently unfair; (5) the request for the removal of the presiding Judge (Ra'ouf Rashid Abdul-Rahman) for bias; (6) the argument that Saddam Hussein had Head of State Immunity; and (7) the argument that the Tribunal's Statute constitutes ex post facto law since crimes against humanity were never before recognized in Iraqi law. The text of the Opinion provides extensive factual and legal reasons why each of the major issues raised by the defense did not prevent the court from reaching a verdict in the Dujail case.
In discussing these matters, the text of the Dujail Trial Opinion discloses some interesting information that was not publicly revealed during the trial. For example, early in the trial, the Defense had filed a motion to remove Judge Ra'ouf on the grounds that he was biased against the defendant because Judge Ra'ouf had allegedly been sentenced to death by Saddam Hussein and had been the leader of an anti-Bathist organization. Judge Ra'ouf never publicly rebutted this claim during the trial, leaving the impression that these allegations were not unfounded. The Dujail Trial Opinion, however, reveals for the first time that Judge Ra'ouf had been arrested and sentenced under the Abdul Salam Aref regime in 1963, which had also arrested and sentenced Saddam Hussein and other members of the Ba'ath party at the same time. According to the Opinion, Judge Ra'ouf was released before Saddam came to power and he practiced law in Baghdad without incident during Saddam's reign. The so-called anti-Ba'athist organization Judge Ra'ouf established in 1992 was a human rights organization in Kurdistan, which was then an autonomous region that was outside the control of the central government and protected by an American no fly zone. The Opinion acknowledges that statistically nearly all Iraqi civilians had relatives and friends who suffered during the rule of Saddam Hussein and that the Defendants' tactics sometimes provoked the judge's ire during the trial. But the Opinion reminds us that the IHT judges had taken an oath to decide the case impartially ' a point that other war crimes tribunals have also stressed in explaining why presiding judges should be deemed capable of fairly deciding a case in the absence of specific evidence of bias.
The Trial Chamber was also criticized for failing to disclose evidence to the defense on a timely basis, cutting off the defense presentation mid-stream, and proceeding at times without Saddam Hussein's retained counsel, which included former U.S. Attorney General Ramsey Clark. The Opinion states that the Defense counsel were provided the entire 1120-page 'referral file' compiled by the investigative judge forty-five days before the trial commenced, as required by the Statute. In terms of 'equality of arms,' the Opinion states that the trial days were evenly split between Prosecution and Defense witnesses, with 20 trial days allotted to each. Ultimately, nearly three times as many defense witnesses testified as prosecution witnesses, and the Opinion explains that the Trial Chamber only cut off the defense presentation when the defense witness testimony became cumulative and focused on the character of the defendants rather than on proving or disproving material facts. The Opinion also explains the appointment of stand-by Defense Counsel at the beginning of the trial, who were called on to step in when, despite warnings from the bench, the retained counsel frequently boycotted the proceedings. The Opinion catalogues instances of misconduct of the foreign and Iraqi retained defense counsel ' actions that the Trial Chamber notes would have resulted in disciplinary proceedings in an ordinary case before the courts of any country.
After its lengthy analysis of the Defense motions and challenges, the Opinion turns to the question of each defendant's guilt, which it considers in six stages: First, the Trial Chamber recites the type of charges brought against each defendant and the required elements of each of the charged crimes. Second, the Trial Chamber summarizes the statements of the complainants and witnesses who testified against the defendant during the investigation and trial, and details the documentary evidence admitted into evidence. Third, the Trial Chamber summarizes the pleas and arguments by the defendant during the investigation and trial. Fourth, the Trial Chamber summarizes the statements of the witnesses who testified for the defendant. Fifth, the Trial Chamber weighs the Prosecution and Defense evidence, including considering questions of credibility and authentication, as well as discussing possible exculpatory grounds or inferences drawn from the available evidence. Finally, the Trial Chamber applies the law to the facts in determining whether the specific charges are proven 'beyond a reasonable doubt.'
All of defendants were acquitted of the charge of committing 'enforced disappearance,' because the Trial Chamber found that the perpetrators made no attempt to hide the fate of the victims, but rather publicly documented their deaths as a warning to others who would oppose the Ba'ath Regime. One shortcoming of the Dujail Opinion that stands out is the Trial Chamber's failure to include an analysis of the mitigating and aggravating circumstances warranting the various sentences.
Throughout the Dujail Trial Opinion, the Trial Chamber includes numerous citations to international tribunal precedent. From the point of view of establishing a noteworthy legal precedent of its own, two points stand out: First, Saddam's main defense was that as a leader, he was entitled to take action against a town that had tried to assassinate him and was populated by insurgents and terrorists allied with Iran at a time when Iraq and Iran were at war. The Opinion details why the actions taken against the town of Dujail and its inhabitants 'was not necessary to stop an immediate and imminent danger' and how the actions were disproportionate to the actual threat. In this way, the Opinion stands for the proposition that there is a line to be drawn in a country's fight against terrorism, and that Saddam and the other defendants crossed that line.
Second, the Opinion begins with the case against Awad Al-Bandar, the President of Saddam's Revolutionary Court, who was charged with conducting an 'illusionary trial' and then ordering the execution of 148 villagers of Dujail, including several individuals who were under 18 years of age. Al-Bandar is the first judge since the Nuremberg-era Alstoetter case[4] to be tried for using his court as a political weapon. Sixty years ago, the Alstoetter Tribunal concluded that 'the dagger of the assassin was concealed beneath the robe of the jurist.' Similarly, after extensive discussion of the evidence demonstrating that Al-Bandar did not hold a real trial before forwarding a judicial request to Saddam Hussein for the execution of the Dujail villagers, the IHT Trial Chamber concluded that it was 'in fact an order of murder and not a judgment issued by virtue of the law and in conformity with it.'Echoing the judgment of the Alstoetter trial, the IHT Trial Chamber rejected Al-Bandar's defense that he 'was obliged to do this,' pointing out that he was no 'ordinary administrative employee, 'but 'a judge and president of the Tribunal.'
On December 3, 2006, the Defense Counsel filed lengthy briefs appealing various aspects of the Dujail Judgment and Opinion. These will be considered by the nine-judge Appeals Chamber, which can affirm, reverse, or order a new Trial. Whatever the outcome of the Appeal, the 298-page Dujail Trial Chamber Opinion seems to have accomplished at least one of the goals of international justice: much like the multi-volume set containing the judgment of the World War II Nuremberg Tribunal, the Dujail Trial Opinion sets forth a detailed historic record, which may one day play a positive role in establishing peace in Iraq.
Michael P. Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law, and head of the academic consortium of law schools that provides legal research assistance to the Iraqi High Tribunal.
Michael A. Newton is Acting Associate Clinical Professor, Vanderbilt University School of Law, and Advisor to the Iraqi High Tribunal.
Footnotes
[1] The English translation of the IHT Statute and Rules of Procedure are reproduced in Michael P. Scharf and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal (2006) at 283-326, available from Carolina Academic Press at: http://www.cap-press.com/books/1625.
[2] The 'unofficial' English translation of the Iraqi High Tribunal's Dujail Trial Opinion is available at: http://law.case.edu/saddamtrial/dujail/opinion.asp.
[3]The November 20, 2006, Human Rights Watch Report on the Dujail Trial is available at: http://www.hrw.org/english/docs/2006/11/20/iraq14589.htm.
[4] U.S. v. Alstoetter, US Military Tribunal at Nuremberg, 3 Trials of War Criminals 966 (1948). This case was made into the Academy Award-winning movie, Judgment at Nuremberg.