The Reckoning: Trying Saddam Hussein

JURIST Special Guest Columnist Greg Kehoe, US Department of Justice Regime Crimes Liaison to the Iraqi Special Tribunal in Baghdad from March 2004 until March 2005, says that while the current Ad Dujayl case against Saddam Hussein is not about the biggest crime committed by his regime, it exemplifies its conduct and is a crucial first step towards eradicating fear and renewing Iraqis' faith in their justice system ...



The battle for the future of Iraq is far from over. When viewing the daily media reports detailing numerous car bomb detonations and insurgent attacks, it is difficult to imagine that any progress is taking place. But it is. The entire country is being rebuilt, and I personally observed that progress every day during the more than ten months I spent in Iraq during 2004-2005. Some of those steps include the well-publicized elections. Others, like the rebuilding of schools and hospitals, often miss the media spotlight. Nevertheless, they go on and include the establishment of a criminal justice system. On October 19, 2005, a major step was taken when Saddam Hussein was called before the Iraqi Special Tribunal (IST) to answer a charge of a crime against humanity for complicity in the execution and incarceration of civilians from a small town called Ad Dujayl, a farming community approximately 35 miles north of Baghdad.

For almost 30 years, Saddam Hussein as the dictator of Iraq controlled the population by various forms of terror, torture and execution. Literally every quarter of Iraqi society felt Saddam's wrath, from the Kurds of northern Iraq to the Marsh Arabs in the south. Even today, his presence instills fear in the Iraqis to a degree that is difficult to fathom. When Saddam Hussein was first taken into Iraqi custody last July, I was present in the courtroom with other Iraqi governmental officials. They were shocked to finally see him and seemed to cower at his very presence. Notwithstanding the fear Saddam engendered, the search for justice moved forward, investigations were conducted, and Saddam's conduct was examined. Now he finally is being called to answer for the acts that he and others have done, before an Iraqi court, with Iraqi judges; a historic event not only for Iraq, but for the entire Middle East.

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Iraq is an emerging democracy. It recently held its first free elections and a referendum on the proposed constitution, essential steps on the road to democracy. Equally important for the establishment of any democracy is a court system grounded in the rule of law. Over the years the Iraqi people have had little or no faith in the Iraqi court system. Through his regime of terror, Saddam flouted due process principles by using secret courts where civilians were tried and sentenced to death for inconsequential acts. For instance, people were executed for simply telling a joke about Saddam. We routinely discovered execution orders with a copy of the joke attached. Others were arrested, tortured and incarcerated with no due process or accountability. There are numerous stories of Iraqi law enforcement officials taking a loved one from his home never to be seen again. In stark contrast, these proceedings before the IST will take a large step towards eradicating Saddam's climate of fear and establishing a renewed faith in the court system. It is crucial that these trials not only be fair but that they be perceived to be fair by the Iraqi people. This trial, unlike those conducted by Saddam Hussein, will be held in an open courtroom to be viewed by the public and scrutinized by the world.

This trial is also the first step toward some reconciliation with Iraq's collective past. While it is important that the former Iraqi leaders be called to answer for their acts, it is also vital that the Iraqi people come to understand fully what happed in Iraq and examine how large parts of the Iraqi population suffered. In every society that has undergone unspeakable suffering, be it in Rwanda, the former Yugoslavia or Nazi Germany, the population must have a reckoning with the past. During the late 1990's, I spent almost five years at the International War Crimes Tribunal for the former Yugoslavia (ICTY). The people from the former Yugoslavia continuously spoke to me about the crimes inflicted on the civilian population during World War II. It was still being discussed into the 1990's because it had never been addressed after the war. I can tell you that the Iraqi people want to heal as well. In whatever reconciliation method is employed, the people must have some ability to explain to their fellow countrymen and the world what happened to them. That accounting with the past must and can occur through these trials, as well as through other vehicles such as truth commissions. These proceedings will begin that reckoning and are the first major step taken by the Iraqi people to confront the past and allow them to move forward into the 21st century.

Trials in Iraq: Why Not in The Hague?

Unlike many other tribunals such as the ICTY, these proceedings will be held in Iraq and will be conducted by Iraqis. A significant amount of unjustified criticism has been leveled at the Iraqis, the Iraqi Special Tribunal and the United States for choosing to conduct the proceedings in Iraq by Iraqis. Human rights organizations have argued that these trials should be held in The Hague or some other forum under the auspices of the United Nations, thereby taking any control over the conduct of these proceedings away from the people who suffered most at the hands of Saddam Hussein and his regime. Without question, there is a valid reason for ad hoc tribunals such as the ICTY to conduct their proceedings far away from the crime scenes. However, it has come at a cost. One must wonder how most Americans would react at having an unknown entity in a foreign country preside over crimes committed by an American dictator against American civilians. Clearly, we would have little tolerance for such a choice. This scenario is no different from the choices given to and made by the Iraqi people. After all the suffering inflicted on the civilian population, the Iraqis chose to conduct these proceedings themselves. During my tenure in Iraq, I met and spoke to many Iraqi people as I moved throughout the country. In all my discussions, no Iraqi questioned the decision to try Saddam Hussein and his co-defendants in Iraq.

Of course, there will be difficulties. Obviously, the insurgency as well as Saddam Hussein loyalists could employ extraordinary measures to disrupt the proceedings. Others who might believe that the defendants do not deserve due process could attempt to punish anyone who operated in concert with the IST. Regardless of the goal or sector of Iraqi society, the threat does exist, and actions by those who object to these proceedings could jeopardize the entire IST. In fact, one of the defense attorneys representing Amad Hamed al-Bander, the former judge of Saddam's Revolutionary Court, was abducted after the first day of trial, and executed by individuals posing as representatives of the Ministry of the Interior. Unfortunately, this murder was not the first that affected the IST. Last spring, an IST investigative judge and his son were executed, and other IST employees have also been killed. Clearly, if these proceedings are to have legitimacy, all participants must be free from threats and violence. But is this possible in Baghdad at the present time? I believe that it is. The trial itself is being held in a safe location inside the International Zone, a/k/a the "Green Zone," and the media has reported that safeguards have been afforded to all participants should they so choose. With cautious vigilance and the proper safety measures, these proceedings can and should move forward. The time for delay is past. The Iraqi people must see that the court system is emerging and reestablishing itself. If these trials fail to move forward, it is difficult to imagine how the foundations of the rule of law will be laid for the future.

A second major objection to the Iraqis' decision to conduct these proceedings themselves focuses on the ability of the Iraqi judges to be objective when viewing the facts before them. Having spent significant time with all the IST judges, I have no doubts about their fairness. It is true that many of these judges had not been educated in international humanitarian law. Such training obviously was not a priority of Saddam Hussein's regime. Nevertheless, since their appointment, the judges have had significant blocks of time among themselves and at numerous legal forums to discuss the applicable law. When I joined the ICTY at its inception, many of those judges and lawyers including myself had no prior exposure to international humanitarian law and went through the same educational exercise. Yet, with time and diligence, the ICTY has become one of the major courts routinely interpreting humanitarian law. I have no doubt that the IST judges will follow in this respected tradition.

As for the judges' objectivity, I also have every reason to believe that the IST judges can render a decision on the facts that come before them in a fair and impartial manner. They want to convince the world and the Iraqi people of the IST's legitimacy. They know the ramifications of any decision that is not based squarely on the evidence before them. These judges have taken on a major responsibility where the validity of the entire government could rest on the perception of their ability to conduct a fair trial with the attendant due process requirements. I know these judges and I have no doubt that these brave men and women will meet that challenge.

The Iraqi Special Tribunal Trial Procedures

After the first day of trial, it is easy to observe that the IST proceeding will be different from those seen on Court TV and those American audiences are accustomed to viewing. Like the United Kingdom, Canada and Australia, the criminal justice system in the United States is grounded in the right to a jury trial. However, when examining judicial frameworks from around the world our common law system is the exception rather than the rule. Most countries, including France, Germany, Spain and the Middle East operate on a civil law system where investigations are directed by judges, not prosecutors, and trials are held before a panel of judges. Such is the system in Iraq. I have observed and participated in other civil law settings (France and Germany), and their procedures are remarkably similar to those employed in Iraq.

The trial itself will be held before five trial judges, one of which will preside over its proceedings. Interestingly, the trial chambers in the ICTY are comprised of only three judges. These IST judges will make the findings of fact and will also apply applicable precepts of international humanitarian law to the evidence presented. As that evidence unfolds, it will likewise come before the court in a manner unfamiliar to the common law practitioner. For instance, in the civil law setting, the judges have the primary role in bringing evidence before the court and examining witnesses. This is so because long before public proceedings commence, the trial chamber judges have been given a dossier from the investigative judge that includes all the pertinent evidence and sworn statements. The trial judges then select those facts that are at issue, and only those become the focus of any public proceeding. Judges rather than the prosecutor or defense lawyer interrogate witnesses. Even the manner in which the trial unfolds is different from common law courts. For instance, during the trial the trial chamber judges could conclude that additional investigation is warranted, and send the entire file back to the investigative judge for further inquiry. The key is for the judges to render a decision based on a complete investigation so that the trial chamber can be satisfied in its conclusion.

In a civil law system, prosecutors and defense lawyers have a secondary role. Although the prosecutor is not the main examiner, he may of course suggest areas of inquiry to the trial chamber and can give his position on the facts and points of law. Nevertheless, it is up to the trial judges to determine how the receipt of testimony and evidence will proceed. Once all the testimony and evidence is received, the prosecutor has the opportunity to argue the conclusion must be drawn from that evidence. Thereafter the judges will retire and formulate a written "charge" to be presented to the defendant, who must answer if the court's charge points to guilt.

The defense is then allowed to present evidence and testimony on behalf of the accused, and the defendant, while not obliged to do so, may make a statement on his own behalf. Once again, unlike the American system, there will be no dramatic cross-examinations or final arguments. At the conclusion of the defense case, the trial chamber will retire to consider its final decision. That written ruling could take weeks to write as the judges apply the facts before them to the pertinent aspects of humanitarian law. Should a decision of guilt be handed down, the defendant has the right to appeal any such decision to a panel of nine appellate judges. Should the decision of the trial judge be affirmed, sentence is generally imposed within thirty days. The range of penalties includes, inter alia, death by hanging.

Why is the Ad Dujayl Case First and What is it About?

The Ad Dujayl case is certainly not the most extensive crime committed by the former regime. During the Anfal campaign against Kurds in 1988, more than 100,000 were killed with thousands removed from their homes and incarcerated, and during the 1991 uprising, thousands more civilians were executed. Nevertheless, a review of Ad Dujayl facts reflects a strong example of the methods employed by Saddam Hussein throughout his reign.

Through his feared intelligence services Saddam Hussein routinely used terror as a way to control the Iraqi population. His methodology included using the media to publicize the punishments he meted out to transgressors. This approach accomplished two goals: 1) removal of any perceived threat, and 2) the instilling of fear in the public, while preventing any other further transgressions. Such was the approach conducted by Saddam in Ad Dujayl.

The village itself is a small agrarian town approximately 35 miles north of Baghdad. It is the home of mostly Iraqi Shiites, and while it sits in a sea of Sunni villages, a walk through Ad Dujayl reflects nothing but serenity. On July 8, 1982, a small group of villagers from Ad Dujayl unsuccessfully attacked Saddam Hussein's convoy as it traveled through the village. By all accounts, it was an
US Regime Crimes Liason Greg Kehoe (left) walks through Ad Dujayl, Iraq
amateurish assassination attempt. Unharmed, Saddam thereafter spoke to the village extolling its loyalty and was then flown by helicopter to Baghdad. However, even then, the Ad Dujayl townspeople feared Saddam's retaliation. Within hours of the failed assassination, forces from the Iraqi Intelligence Service (IIS), the feared Mukhabarat, and other state police agencies descended upon the town to exact revenge. These forces were brought to bear by Barzan Ibrahim Hasan Al-Tikriti, then the IIS chief and Saddam Hussein's half-brother, acting on Saddam Hussein's direct orders. Barzan ordered the arrest of everyone over the age of 13 who was capable of carrying a weapon. The defendant Abdullah Kazim Ruwayyid and his son Mizhar Abdullah Ruwayyid, loyal Ba'athists assisted the IIS squads in the arrests.

The IIS forces then brought scores of arrested citizens to the Ba'ath Party building in Ad Dujayl for interrogations. Despite the fact that the assassination attempt had been a crime of opportunity with few participants, the number of civilians arrested grew tremendously during the days that followed. Hundreds of the townspeople were arrested and as many as 15 were summarily executed. Eventually, over 1,000 people spent years in prison with no charges brought against them, and more than 145 were executed, many without ever seeing a court of law. Civilian prisoners were sent to various prisons in Baghdad where they were beaten and tortured to extract information or compel confessions. As time passed, prisoners were transported to desert internment camps throughout the country. Many of the prisoners were never charged with any crimes or taken before any judges, but simply were detained. A significant number of prisoners were held until 1985, when they were released to return to Ad Dujayl, only to find their land and property confiscated or destroyed.

Many others were brought before the Revolutionary Court, a body charged with hearing cases involving state security. It was widely known that any referral to the Revolutionary Court meant certain death. These prisoners were accused of membership in the Da'wa Party, a Shiite political opposition group outlawed by Saddam Hussein's Revolutionary Command Council (RCC) in 1980. The RCC had deemed death as the punishment for membership in the party. The Revolutionary Court judge was the defendant Awad Hamed Al-Bandr, who sentenced more than 145 prisoners to death with many already dead by the time the execution orders were signed. The youngest person executed appears to be an 11-year-old boy, while two others, fighting in the Iran-Iraq war at the time of the assassination attempt, were taken from the army, incarcerated and ultimately executed. As a final punishment, in addition to the tortures, incarcerations and executions, the land around Ad Dujayl was stripped of crops and destroyed, rendering it unusable for farming.

The Defense

You can expect the defense presented by the accused to be a vigorous one. First, there will be a challenge to the formation of the IST. Set up by the Coalition Provisional Authority in 2003 during the occupation, and reaffirmed by the current Iraqi legislative chamber, the IST's validity and establishment will nonetheless be challenged as an unlawful act by an occupying force. This defense should prove unsuccessful because the Iraqis have since validated the court themselves. The second challenge will focus on the 1970 Iraqi Constitution, which granted immunity to all RCC members including Saddam while acting in their governmental capacity. Under international law, it is doubtful that any legislative body can legitimize or legalize a crime against humanity. So this defense should also prove unsuccessful. To ensure that the immunity defense is not effective, however, the Iraqi legislature need only vote to withdraw any such immunity in much the same fashion that Chile withdrew General Augusto Pinochet's protective status.

The last major legal objection will focus on the ex post facto aspects of the crimes for which Saddam and his co-defendants are charged. Under the well grounded international law concept of nullum crimen sine lege (no crime without law), a defendant cannot be charged or punished for a crime that did not exist at the time. Clearly, there was no Iraqi equivalent of crimes against humanity during Saddam's reign. However, the existing law at the time of the Ad Dujayl event included international law as well as domestic law. Mandates forbidding crimes by coordinated state action directed against the civilian population were crimes under international humanitarian law, regardless of domestic law. Thus, as with Nazi war criminals from the Third Reich, neither legality under domestic law nor the absence of specific prohibition of crimes against humanity will bar a prosecution of Saddam and his co-defendants for the Ad Dujayl matter.

Lastly, I am sure that Saddam and some of his co-defendants will argue that they were unaware of the crimes that took place. As this is a command responsibility case, it must be established that superiors such as Saddam either ordered or condoned the criminal conduct of his subordinates for a guilty verdict to be rendered. I participated in a command responsibility case in the ICTY, and they are inherently difficult to prove because the proponent is attempting to hold a superior liable for a subordinate's conduct when the superior was not present at the scene of the crime. For it to be shown that a superior is responsible up the chain of command, the evidence must include testimony as well as documentary proof of an individual's legal responsibility and participation regardless of his presence at the crime scene. In my opinion, in absence of documentary proof, lack of knowledge could very well be Saddam's best defense. Even if he signed the death warrants for the more than 145 Ad Dujayl civilians, he could nonetheless argue that he relied on the court system, and he was unaware that there was little or no evidence against these executed civilians. To meet this defense, oral testimony of governmental insiders could counter any such assertion as well as documentary evidence outlining the information that was passed up the chain of command.

Conclusion

Whatever the outcome of the Ad Dujayl case, the IST and the Iraqi people can take great pride in conducting a criminal proceeding free of the shackles of secrecy. In a further step towards democracy, the price for this step will be high, but I believe that the people of Iraq are willing to pay that price. In the early part of this year, the body of an IST driver was found dumped in a Baghdad alley. His body was taken to a makeshift morgue where it was identified by his brother several days later. His brother, also on the IST staff, was and is a friend of mine, and we sat together after he had buried his brother according to Islamic law. He told me that while he mourned his brother's death, he knew that his death was part of the tax that he and other Iraqis had to pay for a democracy; and he was willing to pay it. For people so willing to pay such a price for freedom, I have no doubt that they will succeed.


Gregory W. Kehoe was the Regime Crimes Liaison to the Iraqi Special Tribunal in Baghdad, Iraq from March, 2004 until March, 2005. He is currently the head of the trial division at the law firm of James, Hoyer, Newcomer & Smiljanich, P.A., located in Tampa, Florida. He can be contacted at gkehoe@jameshoyer.com
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