Although US-led coalition forces succeeded in taking de facto control of Iraq by April 2003, the whereabouts of deposed president Saddam Hussein remained unknown during the beginning of post-invasion occupation. The capture and prosecution of Saddam was an important piece of the US war strategy the alleged crimes of Saddam's regime had formed a significant part of the justification for military action. To this end, the US military special forces conducted Operation Red Dawn on December 13, 2003, leading to Saddam's capture in a "spider hole" near Ad-Dawr, Iraq. Following his capture, the US military moved Saddam to a US base near Baghdad. However, the US did not relinquish legal control of the former president to the interim Iraqi government until June 2005.
On July 17, 2005, the Iraqi High Criminal Court filed its first criminal charges against Saddam Hussein in relation to the 1982 killing of 150 Shias in the village of Dujail. Saddam's lawyers attempted to move the trial out of Iraq over security concerns. Despite questions regarding the haste of the proceedings, Saddam's first trial officially began in October 2005.
The tribunal convened to try Saddam was headed by a panel of five judges, and faced the enormous task of prosecuting the former president equitably. JURIST Guest Columnist Lawrence Douglas pointed out the difficulties of respecting the criminal process while still rendering justice:
No one, I believe, would deny that the core responsibility of a criminal trial is to resolve the question of guilt in a procedurally fair manner. To insist, however, that the sole purpose of a trial is to render justice, and nothing else, defends a crabbed and untenable vision of these special proceedings. In the case of spectacular war crimes trials, it is unrealistic to expect and silly to demand that the trial be conducted as an ordinary exercise of the criminal law. The question, then, is not whether the trial should be used for these larger ends, but how to do so responsibly.As per Iraqi law, the prosecution presented its evidence first and Judge Raouf Abdel-Rahman officially charged Saddam with crimes against humanity including the deaths of nine villagers, torture of women and children, the razing of farmlands, and the wrongful arrest of almost 400 Dujail residents. However, the criminal proceedings were disrupted early by technical difficulties and the murders of three members of Saddam's defense team: Saadoun Sughaiyer al-Janabi, Adel al-Zubeidi, and Khamis al-Obeidi. Claims of sectarian bias in Saddam's favor also led to the resignation of Chief Judge Rizgar Amin in January 2006 and the appointment of his replacement, Ra'uf Rasheed Adel-Rahman. Boycotts and hunger strikes by both Saddam and his defense team were commonplace during this and subsequent proceedings to protest alleged mistreatment.
In August 2006, the Iraqi government opened a second case against Saddam over charges that he was involved in the Anfal operation that killed 100,000 Kurds in northern Iraq in the 1980s. Despite the chaos and controversy surrounding the first trial, Saddam was convicted of both crimes against humanity for his role in the Dujail case and sentenced to death on November 5, 2006.
The sentence, and the nature of the proceedings, drew condemnation from the legal community for ignoring due process and violating international standards. JURIST Special Guest Columnist John Pace argued that the lack of propriety denied true justice to victims of Saddam's crimes: "All this made a mockery of the seriousness of the proceedings that the crimes warranted. After all crimes against humanity are exactly that: it is humanity at large that has an interest that such crimes are punished and punished in a manner that is consistent with international standards."
JURIST Special Guest Columnist Curtis Doebbler called the verdict "one of the worst abuses of justice in modern history":
This arrogant abuse of the law is part and parcel of the illegal invasion of Iraq. The trial was the direct result of multiple violations of international law, especially the illegal crime of aggression perpetrated against the Iraqi people. Actions that are the result of an illegal action must not be recognized by any state in the international community.
However, some scholars defended the verdict as a necessary step towards protecting the rule of law, a viewpoint expressed by JURIST Contributing Editor David Crane:
It was rough justice, but it was justice nonetheless, and it reflects mankind's early attempts to face down the beast of impunity. It wasn't pretty to watch, but the trial of Saddam Hussein and his henchmen shows that we are at least doing something to account for mass atrocity.Saddam's sentence was upheld on appeal. He was executed on December 29, 2006.
We should take this small moment of justice and resolve to move the concept of international justice forward in a consistent way that returns the respect of the law missing in areas where atrocity has happened. If we can show victims that the law is fair, that no one is above the law, and that the rule of law is more powerful than the rule of the gun, we will begin to develop a seedbed from which freedom and justice will grow. The system of tribunals and courts will greatly assist in this effort. The global community must remain focused.