Phase Two in the Saddam Trial

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Introduction

The Iraqi High Criminal Court (IHHC) (PDF), formerly the Iraqi Special Tribunal, is hearing its second case against Saddam Hussein and his top lieutenants. The former Iraqi dictator faces charges of genocide and crimes against humanity and is being tried by Iraqis under Iraqi criminal law, not by international judges under international law. Proponents of this approach, including DePaul University’s M. Cherif Bassiouni, argue that trying Saddam domestically will "advance the goals of the rule of law in Iraq and help sustain a new era for the Iraqi legal system." Opponents, including a number of global human rights groups, challenge the court’s legitimacy, accuse the tribunal of doling out "victors’ justice" that could further inflame Saddam’s sympathizers, and decry its use of the death penalty. The most recent charge against Saddam involves his order to exterminate tens of thousands of Iraqi Kurds, many of them by chemical gas, in the so-called Anfal campaign in 1988.

What was the Anfal campaign?

In 1988, Saddam Hussein and six of his deputies launched a six-month campaign to push Kurds out of the mountainous areas of northern Iraq. The directive came toward the end of Iraq’s war with Iran at a time when Saddam suspected the Kurds of abetting the Iranians. The alleged ethnic-cleansing operation was dubbed Anfal, named after an Arabic term in the Koran that means "the spoils." It resulted in the deaths of at least 50,000 Kurds and scores of mass graves. There are around fifty documented cases of chemical weapons used against the Kurds. "Four thousand villages were buried and wiped off the earth," says Michael A. Newton, a Vanderbilt University law professor. "Dujail [the first case against Saddam involving the killing in 1982 of 148 Iraqi Shiites] revealed one snippet of life under the Baathists, while Anfal will show the world in living color what life was like under Saddam."

What charges does Saddam face?

Court documents say Saddam faces charges of genocide, crimes against humanity, and other war crimes. Genocide involves the deliberate or systematic elimination of a group of people because of their race, creed, or ethnicity. Some legal scholars say the crime can be difficult to prove because it is not regularly prosecuted. Further, they say, it is necessary to establish the perpetrators—in this case, Saddam and his main aide, Ali Hassan al-Majid, also known as "Chemical Ali"—had command responsibility over the Anfal campaign. Yet Newton says although an element of specific intent must be shown, genocide can be proven through circumstantial evidence as well—i.e. "mass graves filled with 100 percent Kurdish victims." The crimes against humanity Saddam and his deputies are charged with include willful killing, enslavement, and unlawful imprisonment. Separate war crimes charges involve allegations that Saddam intentionally attacked non-military buildings and civilians as well as unlawfully seized and destroyed property.

What has been Saddam’s defense?

Lawyers for Saddam do not deny the former Iraqi leader ordered the chemical attacks against Kurds but say the strikes were justified and accuse Kurdish militias of treason and conspiring with Iran. This marks a shift from the defense’s arguments in the Dujail case, during which Saddam denied ordering 148 Shiites killed and claims he merely ordered farmland to be razed after a failed assassination attempt against him in 1982. Saddam’s lawyers have repeatedly questioned the legitimacy of the tribunal and claimed they were denied access to witnesses during the Dujail trial. Unlike the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) case against Slobodan Milosevic, Saddam has not been given much opportunity to present any real defense, says David M. Crane, a law professor at Syracuse University College of Law and former chief prosecutor for the Special Court for Sierra Leone. Iraq is applying a civil criminal system, traditionally less adversarial, whereas ad hoc tribunals, like Sierra Lione’s, more closely follow common law systems. In the civil criminal system, Crane says the judge acts more as an adversary or third party and can limit the defense more than in a common law court, where a higher burden exists to prove guilt beyond a reasonable doubt (he admits, though, that civil systems tend to go more swiftly).

Why was Dujail the first case against Saddam?

Experts say it was manageable and prosecutors had ample evidence enabling them to launch the tribunal hearings. "The decision to go with Dujail was most likely prompted to get the court off on a good footing," says Laura Dickinson, associate professor at the University of Connecticut School of Law and former adviser to the Justice Department’s liaison office to the IHHC. "Anfal is more complex and broader" and therefore expected to take months to reach a verdict. The Iraqis were wary of repeating the experience of the ICTY, which sought to prosecute Milosevic on multiple charges at once, allowing the proceedings to get bogged down. However, "the problem with choosing Dujail as the first case is it doesn’t really capture the magnitude of the atrocities committed by Hussein," Dickinson says.

Why was a national court established versus an international tribunal?

"The Iraqis wanted to do it themselves," Crane says. "Also, the United States did not want to give it up to the international community." Legal experts say the U.S.-led Coalition Provisional Authority operated with some secrecy in establishing the court in 2003 and 2004. It ruled out bringing in outside bodies like the United Nations due, among other reasons, to its objection to capital punishment. Although international tribunals lend some accountability, legitimacy, and impartiality to the court proceedings, experts point to many negatives. For one, Dickinson says, "a purely international tribunal sitting in The Hague runs the risk that the local population would feel disconnected to the process." Others, including Vanderbilt University’s Newton, say international courts of justice should act only as a fallback option that "supplement but never supplant domestic processes" (The International Criminal Court statute includes a provision which encourages the domestic resolution of disputes. It only takes cases domestic courts are unwilling or unable to handle on their own; further, the ICC could not exercise jurisdiction in this case because most of the crimes under investigation preceded its creation.) Many legal experts favor the so-called hybrid model, which incorporates elements of domestic and international law and includes both local and international judges. "We have a workable template that easily could have been overlaid in Iraq," Crane says, referring to the UN-established hybrid model currently in place to try war crimes in Sierra Leone.

What are the advantages of an Iraqi-run court?

Proponents of this model argue that a domestic tribunal will help instill a legal foundation and bolster the rule of law in Iraq’s fledgling legal system. An international tribunal, Dickinson says, "would not have funneled any resources into rebuilding Iraq’s court system, its physical structures, and legal human resources." Since the fall of Saddam, the Iraqis have imported a number of international legal norms into a body of law based in part on the Iraqi Criminal Code of 1971. In addition to dispensing justice, the trial also establishes a public record and provides documentation of the atrocities committed by Saddam, while allowing victims to come forward with important historical testimony. Some legal scholars say the tribunal may even prompt the establishment of a truth and reconciliation commission modeled on the one used by post-apartheid South Africa.

What are some disadvantages of such a court?

Many Iraqis, as well as Muslims in the Middle East, view the court as a U.S.-led and therefore tainted operation. "There’s a lingering shadow in the corners, so to speak," Crane says. "It’s perceived as American-made. Whether it’s completely true, it doesn’t matter. If [Iraqis] feel that it’s true, it’s a snake-bitten court." Adds Dickinson: "Everyone would have been better served if it had been less dominated by the United States." She favors adding some non-Iraqi judges from the Arab world to the tribunal’s bench. Although the United States has bankrolled the court and provides the bulk of its security (the IHHC is based in Baghdad’s heavily guarded Green Zone), Newton, who recently returned from Iraq, disputes notions the Americans are calling the shots behind the scenes. "They advise and assist and that’s it," he says. "It’s an Iraqi court." Others charge that the Iraqis in charge of the court lack the legal wherewithal to effectively prosecute the case. "None of the Iraqi judges and lawyers [have] shown an understanding of international criminal law," claims Human Rights Watch.

What might be the results of the tribunal?

Given the near-certain chance Saddam will be found guilty of Dujail, there is a possibility he may be executed before the current cases before him conclude (under the tribunal’s statute, he is allowed to appeal the verdict). Some legal experts suggest postponing sentencing until after the entire trial (the charges against Saddam, in addition to Anfal and Dujail, include killing or deporting more than 10,000 members of the Kurdish Barzani tribe, putting down the Shiite uprising after 1991, and invading Kuwait in 1990). Another fear is that killing Saddam may only burnish his posthumous reputation among Iraqis, particularly given the current unpopularity of the U.S.-led occupation. "People will be more focused on the death of a martyr who stood up to the Americans," Crane says. There is also some concern the documentation revealed about the genocidal Anfal campaign may spur efforts by Kurds in northern Iraq to push for greater, if not outright, independence from Baghdad.

How has Iraq’s security situation affected the trial process?

"It’s a huge issue," Dickinson says. The Saddam trial has become almost a sideshow given the country’s recent slide into sectarian violence. Others say the security situation has imperiled the judges’ ability to deliberate and deliver impartial sentences. "We don’t have a careful consideration of the facts and figures because everyone is hoping to live till the end of the day," Crane says. "Their families are incredibly frightened." At least three defense lawyers have been killed by insurgents since preparations for the trial began last year. Dickinson and other experts favor temporarily moving the tribunal out of Baghdad’s Green Zone to a more secure location in the Middle East like Dubai. Newton, however, says moving the trial would be "subordinating civilized society to the forces of anarchy and lawlessness."