Near Term Retrospective on the Al-Dujail Trial & the Death of Saddam Hussein

Author:Michael A. Newton
Position:Professor of the Practice of Law, Vanderbilt University Law School.

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The hour of liberation is at hand, God willing. But remember that your near-term goal is confined to freeing your country from the forces of occupation and their followers, and not to be preoccupied in settling scores . . . . You must show genuine forgiveness and put aside revenge over the spilled blood of your sons and brothers, including the sons of Saddam Hussein.

-Purported letter written by Saddam Hussein, signed as "President and commander in chief of the holy warrior armed forces."1

And now the former dictator of Iraq will face the justice he denied to millions. The capture of this man was crucial to the rise of a free Iraq. It marks the end of the road for him, and for all who bullied and killed in his name . . . . There will be no return to the corrupt power and privilege they once held. For the vast majority of Iraqi citizens who wish to live as free men and women, this event brings further assurance that the torture chambers and the secret police are gone forever. And this afternoon, I have a message for the Iraqi people: You will not have to fear the rule of Saddam Hussein ever again. All Iraqis who take the side of freedom have taken the winning side. The goals of our coalition are the same as your goals- Page 32 sovereignty for your country, dignity for your great culture, and for every Iraqi citizen, the opportunity for a better life.

-President George W. Bush, Address to the Nation, Dec. 14, 20032

I Introduction

Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail.4 Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge's opinion.5 When Saddam interrupted the reading of the verdict, Judge Ra'ouf Rasheed Abdel Rahman turned down the volume of his microphone and spoke over him. Speaking on behalf of the five judge panel, Judge Ra'ouf sentenced Saddam to "death by hanging" for the crime of willfully murdering Iraqi citizens from the town of al-Dujail. Saddam railed, "God curse the enemies of the occupation." He demanded that the Arab people "stand up" and proclaimed "death to the enemies of the nation."6 An automatic appeal of the verdict was initiated and heard by the nine-judge Cassation Panel, which issued its opinion on December 26, 2006.7 Saddam's Page 33 execution was carried out on the first day of the Sunni religious holiday 'Eid al-Adha'8 despite a provision of Iraqi law that a death sentence "cannot be carried out on official holidays and special festivals connected with the religion of the condemned person."9 The executioner's rope tightened around his neck and interrupted him as he prayed the most sacred Islamic prayer: "[t]here is no god but Allah . . . ." The sectarian overtones of the poorly implemented execution were preserved on a grainy video apparently taken from an illicit cell phone.10 Despite the plea for dignity from a voice on the video that is heard to say "[p]lease no . . . this man is about to die," some of those attending the execution taunted Hussein and gleefully celebrated his demise.11 The jarring images flashed around the world, lending an eerie air of dignity to the end of one of the cruelest tyrants of the twentieth century.

Following the trial, Saddam died as a convicted criminal whose crimes were documented in a 283 page judgment.12 The opinion is a thorough and organized catalogue of the factual record of evidence from the trial and the investigative file. The Trial Judgment carefully assesses the elements of each charged offense, along with the relevant mens rea demonstrated by the available evidence, and it applies the relevant domestic and international law to each and every charge against each of the eight defendants in detail. Although Saddam's execution does undercut the "expressive value" of the Page 34 subsequent and important trials that remain,13 its legal foundations, factual findings, and judicial inferences are preserved in the extensive opinion for the world, and particularly Iraqis, to read and analyze. The grossly sectarian overtones of the botched execution do not negate the entirety of the publicly accessible trial sessions, in which the defense presented more than sixty witnesses and the prosecution introduced more than twenty witnesses (termed complainants in Iraqi law). The flawed execution is an incomplete snapshot of the legal process that brought down Saddam. Saddam's execution rekindles memories of the confrontational cross-examination of Herman Goering, whose theatrical performance appeared to make him overshadow the Chief Prosecutor, Robert H. Jackson, who served as U.S. Solicitor General and Supreme Court Justice. Just as Goering's short term triumph is not today remembered as a metaphor for the entire International Military Tribunal at Nuremberg the botched execution of Saddam does not encapsulate all that is memorable or important about the first complete trial held by the Iraqi High Criminal Court.14

The larger legacy of the al-Dujail Trial will develop against the backdrop of the referral file that is referenced repeatedly in the opinion of Trial Chamber I. The al-Dujail referral file prepared by the Investigative Judge is more than eleven hundred pages long but has never been publicly released in whole, although it was provided in its entirety to the defense team more than forty-five days prior to trial as required by Iraqi law.15 The al-Dujail trial represents a significant window into the current practice of states' implementation of humanitarian norms, and its lessons have larger reverberations within the corpus of humanitarian law. Because the Iraqi domestic system is built on a civil law model, the Tribunal also represents the most modern effort to meld common and civil law principles into a consolidated domestic system. This melding, in turn, has yielded a number of important lessons for future trial processes. By extension, the al-Dujail trial contains important lessons for the broader field of international humanitarian law. The balance of this piece will consider some of the most significant implications of the al-Dujail trial. In particular, this piece will assess the Tribunal's actions in light of the normative implications after the establishment of the Tribunal during the post-war occupation of Iraq, the arguments related to the immunity of Saddam and other leading members of the Ba'athist party, and the implications for the doctrine of command responsibility as a basis for individual criminal responsibility. Page 35

II Controversial Dimensions Of The High Criminal Court

The precise legacy of the al-Dujail trial remains unknown at the time of this writing, partly because few outside the region followed the daily Arabic broadcasts, and partly because its larger aspirations remain unattainable due to the turmoil inside Iraq and in the larger region. What is clear is that the public perception of the judicial process as an extension of the politics outside the courtroom was reinforced dramatically.16 In the short term, this has meant that the al-Dujail trial has divided Iraqis instead of providing a rallying point for national reconciliation. The record of the al-Dujail trial is one of missteps, mistakes, and misstatements. Its processes and political dimensions were filled with controversy both within and outside of Iraq. There was very little predictability in this first trial of the Iraqi High Criminal Court, yet its very audacity was inspiring. Iraqi lawyers and politicians succeeded in integrating modern substantive norms into the domestic criminal code of Iraq.17 They privately took pride in emulating those states that have ratified the Rome Statute of the International Criminal Court by expanding the crimes punishable in domestic courts.18 To demonstrate tangible progress toward a modern Iraqi state standing alongside the community of nations, the Statute of the Iraqi High Criminal Court (commonly termed the Iraqi High Tribunal across the rest of the world)19 embodied a synergy between domestic procedural law and the modern tenets of war crimes, crimes against humanity, and genocide that Page 36 were to be implemented insofar as possible using the underlying foundation of the Iraqi procedural code. The judges also studied the best practices from the ad hoc tribunals and strove to follow those examples (such as having a Defense Office internal to the Tribunal with counsel available on stand-by if needed).20 The Tribunal Elements of Crimes21 were closely modeled on the International Criminal Court Elements, and the judges repeatedly used the Arabic version of the official International Criminal Court Elements22 as the basis for their probing questions to international advisors regarding the fit between Iraqi domestic crimes and those recognized under international law. The statute expressly permitted the Iraqi judges to "resort to the decisions of international criminal tribunals" when needed to interpret and apply the provisions punishing genocide, war crimes, and crimes against humanity as incorporated into Iraqi law.23 However, the precise linkage between the international character of the crimes and their domestic counterparts was not fully explored in the Dujail opinions and remains for development in subsequent cases.

Iraqi jurists conducted a trial that had moments of chaos interspersed amongst days of testimony, documentary evidence, and often arcane legal arguments. They used a transparent...

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