Was the Dujail trial fair?

Journal of International Criminal Justice

Volumn 5, Issue 2, 2007, Pages 272-286

  Sissons, Miranda ^a   Bassin, Ari S ^a  

^a Middle East for the International Center for Transitional Justice

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EID: 34447643279     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm014     Document Type: Article

References (85)

1. Based on discussions with select Dujail witnesses and an official witness liaison.
2. Art. 14(3) International Covenant on Civil and Political Rights, 16 December 1966, S. EXEC. DOC. E, 95-2 (1978), 999 U.N.T.S. 171 (1978) (hereinafter: ICHPR), available at: http://www.ohchr.org/english/law/pdf/ ccpr.pdf (visited 22 February 2007). Iraq ratified the ICCPR on 23 March 1976.
3. This article includes the accused's presumed innocence (19(2)), entitlement to a public hearing (19(3)) and such minimum guarantees of a fair impartial trial (19(4)) as: Being promptly informed of the content, nature and cause of the charge against him (4a); having adequate time and facilities to prepare his defence and to communicate freely with counsel of his own choosing (4b) as well as being tried in his own presence (4d). Law of the Supreme Iraqi Criminal Tribunal (Law No. 10 of 2005) Official Gazette of the Republic of Iraq (18 October 2005) (hereinafter: IHT Statute). An English translation of the statute is available online at: Http://www.ictj.org/static/MENA/Iraq/ iraq.statute.engtrans.pdf. The Tribunal's name was changed from the Iraq Special Tribunal to the Supreme Iraqi Criminal Tribunal in October 2005; the Tribunal uses the English name 'Iraqi High Tribunal' (IHT).
4. Violations of international human rights and international humanitarian law (IHL) were extensively documented by a number of groups, including in particular the United Nations Special Rapporteur on the Human Rights Situation in Iraq, Amnesty International and Human Rights Watch. Examples include: UN Commission on Human Rights Res. E/CN.4/RES/1991/67, 'Situation of human rights in Kuwait under Iraqi occupation'; Middle East Watch, Human Rights in Iraq (New Haven: Yale University Press, 1990);
5. Human Rights Watch, Endless Torment: The 1991 Uprising in Iraq And Its Aftermath (New York: Human Rights Watch, 1992);
6. UN GA Res. A/49/651, 'Human Rights Questions: Human Rights Situations and Reports of Special Rapporteurs and Representative: Situation of Human Rights in Iraq', 8 November 1994 (and subsequent years);
7. Amnesty International, Iraq: Victims of Systematic Repression, MDE 14/010/99, 24 November 1999.
8. See e.g. President George W. Bush, Remarks at the United Nation's General Assembly (12 September 2002) available at http://www.whitehouse.gov/news/releases/2002/09/20020912-1.html.
9. President George W. Bush, State of the Union (28 January 2003) available at http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html (visited 22 February 2007).
10. See US Department of Defense Briefing, 'Geneva Convention, EPW's and War Crimes', 7 April 2003, available at www.defenselink.mil/transcripts/2003/ t04072003.t407genv.html (visited 22 February 2007).
11. Pre-war planning included a possible Tribunal for high-level perpetrators of international legal crimes, with the assumption that lower-level perpetrators would be tried in ordinary Iraqi courts. Report of the Working Group on Transitional Justice in Iraq and the Iraqi Jurists' Association, Transitional Justice in Post-Saddam Iraq: The Road to Re-Establishing Rule of Law and Restoring Civil Society, A Blueprint, March 2003, copy on file at the ICTJ.
12. CPA Order 48, Delegation of Authority Regarding an Iraqi Special Tribunal, available at www.iraqcoalition.org/regulations/
13. International Center for Transitional Justice, Iraqi Voices: Attitudes towards Transitional Justice and Social Reconstruction, May 2004, available at www.ictj.org/mena/iraq.asp (English) or www.ictj.org/ arabic/report.html (Arabic) (visited 22 February 2007).
14. See IHT Statute, supra note 3, Arts 11-13. Iraq ratified the Geneva Conventions on 14 February 1956, and acceded to the Convention on the Prevention and Punishment of the Crime of Genocide on 20 January 1959.
15. Crimes include attempts to manipulate the judiciary, pursuit of policies leading to war against another Arab country, and others drawn from Law 7 of 1958. The Special Supreme Military Court, chaired by Col. Fadil al-Mahdawi, was created immediately after the Iraq revolution of 1958 to try officials of the former regime. The Commander in Chief of the Armed Forces referred cases for investigation and trial. The court was an essential legitimator and mouthpiece for the new regime. B. Shwadran, The Power Struggle in Iraq (New York: Council in Middle Eastern Affairs Press, 1960), 60-74.
16. See IHT Statute, supra note 3.
17. On trial were Saddam Hussein and three high-level cohorts who had allegedly participated in the attack, including the former head of the intelligence services (Barzan Ibrahim al-Hassan al-Tikriti), the former chief judge of the Revolutionary Court (Awwad Hamd al-Bandar) and the former vice-president and head of the popular army (Taha Yassin Ramadan). The four lower-level defendants (Abd Allah al-Ruwaid, Ali Dayih Ali, Mizher al-Ruwaid, and Muhammad Azzawi Ali) were residents of al-Dujail.
18. Other cases investigated include: The Anfal campaign (currently at trial); the 1991 uprising in southern Iraq (the Tribunal has announced the investigation is complete); the persecution of religious political parties; the persecution of secular political parties; the invasion and occupation of Kuwait; the execution of merchants in 1992; the Arab marshes and others.
19. For a more detailed discussion of case selection see ICTJ Briefing Paper, The Creation and First Trials of the Supreme Iraqi Criminal Tribunal, October/November 2005, at 18-19.
20. Prime Minister Ibrahim al-Ja'afari held office at the trial's opening in October 2005, and Prime Minister Nuri al-Maliki held office for the rest of the proceedings.
21. All IHT functions with the exception of trial chamber and cassation judges rely heavily on the Regime Crimes Liaison Office (RCLO). The RCLO is based at the US embassy and is formally mandated to provide the Tribunal with analytical, logistical and investigative support. It is comprised mostly of US personnel. The UK has played a production role in the Tribunal's development within the limits required by its opposition to the death penalty. There were also a small number of independent international advisers to the trial chamber and the defence. The US has contributed some $128 million in funding, which dwarfs the Tribunal's own budget. It also facilitates extensive security arrangements for Tribunal and associated personnel. See J.B. Bellinger, III, Press Release, US Department of State, 'Supporting Justice and Accountability in Iraq', speech delivered at Chatham House, London on 9 February 2006, available at http://www.state.gov/s/l/rls/61110.htm;
22. see also US Department of State, Section 2207 Report on Iraq Relief and Reconstruction, Spending Plan Table (Status of Funds), October 2006, available at http://www.state.gov/documents/organization/77367.pdf (stating funds used for Investigations of Crimes Against Humanity total $128 million).
23. The IHT's legal framework, though faulty, is heavily based on international legal norms; those norms were eroded in parliamentary revisions to the statute in 2005. The language of Art. 14 of the International Covenant on Civil and Political Rights was substantially but not completely incorporated into Art. 19 of the IHT Statute. See supra notes 2 and 3.
24. United States Institute For Peace (R.M. Perito), Establishing The Rule Of Law In Iraq, Special Report 103, April 2003;
25. Judge Medhat al-Mahmud, The Court System in Iraq: A Descriptive Study of Legislation Regulating the Court System in Iraq (Baghdad, 2004), presented at 'Judicial System in Iraq: Reality & Prospects', Amman, 2-4 October, 2004;
26. International Commission of Jurists, Iraq and the Rule of Law, February 1994.
27. Even trials conducted under UN auspices have not always met international standards of fairness. See C. Reiger and M. Wierda, The Serious Crimes Process In East Timor: In Retrospect (New York: ICTJ, 2006), at 2-3, 40-41.
28. See also D. Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (Honolulu: East-West Center, 2006).
29. Art. 14(1) ICCPR, supra note 2.
30. IHT Statute, supra note 3. Effective on publication.
31. See e.g. M.A. Newton, 'Legal Authority for the Creation of the Iraqi High Tribunal', in M.P. Scharf and G.S. McNeal (eds), Saddam on Trial: Understanding and Debating the Iraqi High Tribunal (Durham, NC: Carolina Academic Press, 2006) 15-23;
32. M. Cherif Bassiouni, 'Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal', 38 Cornell International Law Journal (2005) 327.
33. See also Coalition Provisional Authority (CPA) Order 48, 'Delegation of Authority Regarding an Iraqi Special Tribunal', issued 10 December 2003. Iraqi criminal law did not include the offences of genocide, war crimes, and crimes against humanity; by including them, the Iraqi Special Tribunal (IST) Statute effectively amended existing Iraqi criminal law. According to IHL, an occupying power is limited in the changes it can make to the penal laws of the country it occupies.
34. For a discussion of the tribunal's creation, see ICTJ Briefing Paper, Creation and First Trials of the Supreme Iraqi Criminal Tribunal, October 2005; available at www.ictj.org/images/content/1/2/123.pdf (visited 22 February 2007).
35. One study that examined four domestic prosecutions of international crimes concluded that fair and effective trials rested on four fundamental conditions: A workable legal framework; a trained cadre of judges, prosecutors, defenders and investigators; an adequate infrastructure (including courtroom and detention facilities) and most important, a culture of respect for the fairness and impartiality of the process and the rights of the accused. See S.R. Ratner and J.S. Abrams, Accounting for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2001), 182-183.
36. IHT Statute, supra note 3, Art. 33 (varying from the standard terminology used in other deba'athification-related instruments by saying, 'No person belonging to the Ba'ath Party may be appointed as a Judge, Investigative Judge, Prosecutor, employee or any of the Tribunal's staff.').
37. De-ba'athification procedures established by the Coalition Provision Authority and then the Interim Governing Council focus on the dismissal from public service of individuals who held one of the top four ranks of party membership, all of which are higher than the rank of 'member'. Given party membership was widespread amongst the legal and judicial professions, the standard of Art. 33 is so high as to be almost unimplementable. In reality de-ba'athification is a politicized process which has ignored the high threshold required by international standards before judges can be removed from ongoing cases. In this regard, the ICTJ notified then Iraqi Prime Minister Ibrahim al-Jafaari of the UN Basic Principles on the Independence of the Judiciary in a letter of 14 February 2006. For an explanation of de-ba'athification's legal and political framework see E. Stover, H. Megally and H. Mufti, 'Bremer's Gordian Knot: Transitional Justice and the U.S. Occupation of Iraq', 27 Human Rights Quarterly (2005) 830.
38. The situation differs according to judges' place of residence: Judges ordinarily living in Kurdistan face fewer barriers in this regard. Judges and staff living in Baghdad are most vulnerable.
39. The information in this paragraph is based on extensive interviews with Tribunal and De-Ba'athification Commission staff in 2006 and 2007, including several individuals affected by de-ba'athification procedures.
40. The incident provoked strong US intervention, including the threat to relocate the Tribunal.
41. An example being the decision of the first Chief Investigative Judge not to stand for re-election in the Tribunal judicial elections of 2006.
42. The Minister of Justice, Abd al-Hussein Shandal, directly attacked Judge Rizgar in December 2005; his attacks were subsequently directed at the newly-appointed presiding judge, Rauf Abd al-Rahman. Al-Hayat, 5 February 2006. In the same month, the ICTJ was told that members of the executive reportedly threatened to cut judicial allowances, following unfavourable media coverage of the IHT.
43. See P. Beaumont, 'Judge in Saddam Trial Axed in Neutrality Row', The Guardian, 20 September 2006. The prosecutor had requested Judge al-Amiri recuse himself in a preceding session on grounds that he was biased in favour of the defence; this comment was the final (and nationally televised) straw. All information available in Baghdad points to direct intervention of the Prime Minister's office to secure Judge al-Amiri's swift reassignment.
44. Many Tribunal judges are over retirement age, and all face extreme stress. There have also been numerous reassignments on the basis of illness and several deaths, including that of the Tribunal President in July 2006.
45. One judge recused himself; one resigned, two were de-ba'athified, one switched panels and another died in a car accident. Much of this turnover was hidden from public view. For security reasons, the Tribunal does not release most judges' identities. Although proceedings were televised, of the judges, only the presiding judge was shown.
46. IHT session, 5 June 2006 (a mocking reference to al-Bandar's role in sentencing 148 Dujailis to death as the head of the Revolutionary Court.).
47. The motion was immediately dismissed verbally without reasoning by Judge Abd al-Rahman himself in the session of 17 February and with slightly more detail on 28 February. The Trial Chamber addressed this issue in the judgment, but under rules 7 and 8 of the Tribunal's Rules of Procedure and Evidence this matter should have been addressed by the cassation chamber. See Posting of Kevin Jon Heller to Grotian Moment: The Saddam Hussein Trial Blog, 'Comparing the Trial to International Standards of Due Process', http://www.law.case.edu/saddamtrial/ entry.asp?entry_id=142 (28 June 2006) (visited 22 February 2007).
48. In one of the rare cases where the court addressed defence witness testimony, the court only did so in an attempt to logically debunk the witness' testimony regarding the existence of weapons caches in the orchards. See Iraqi High Tribunal, Trial Chamber, Case No. 1/C 1/2005, Dujail Case, 5 November 2006 (released 22 November 2006), translated by Human Right Watch and the International Center for Transitional Justice, at 85, 90, 94-95 available at: Http://www.ictj.org/static/MENA/Iraq/ DujailVerdict.eng.pdf (hereinafter Dujail Trial Judgment). Unfortunately, the 'logical' conclusion that the court arrived at, that there could not have been weapons caches in the orchards, was not a logical necessity, and as a result only provided a further indication of the court's inclination Against the defendants.
49. See infra Part 3(C).
50. See IHT, Cassation Chamber, Case No. 29/c/2006, Dujail Case, 26 December 2006, translated by Mizna Management LLC, at 20 (hereinafter Dujail Cassation Judgment). The trial chamber found Taha Yassin Ramadan guilty of crimes against humanity, murder, forced displacement, imprisonment, torture and other inhumane acts. Evidence and reasoning on the wilful killing charge was weak. The cassation chamber, without reasoning or rationale, ordered the case returned to the trial chamber to increase Ramadan's sentence for wilful killing from life imprisonment to death. The trial chamber confirmed the death sentence in the worst session of the Dujail trial on 12 February 2007.
51. L. Arbour, In the matter of Sentencing of Taha Yassin Ramadan: Application for Leave to Intervene as Amicus Curiae and Application in Intervention as Amicus Curiae of United Nations High Commissioner for Human Rights, §23, 8 February 2007 (quoting M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn., Kehl am Rhein: N.P. Engel, 2005), at 321.
52. At root was the Tribunal's inability to accept the concept of the defence as an essential partner in the trial process. This is the legacy of a strong historical tendency to view the defence as an unnecessary challenge to the power of the court. Unprofessional behaviour by defence counsel did not help. The Tribunal believed strongly that it had met all fairness requirements in allowing defence counsel, providing counsel for indigent defendants, and permitting them to examine and present witnesses and evidence: This was a significantly greater defence role than in previous decades.
53. The inclusion of four minor Ba'ath Party officials alongside four high-level accused seriously hampered the quality of their defence. They were accorded less time and fewer resources than their high-profile counterparts.
54. The judges in the cassation chamber did not seem as concerned about fairness to the accused. In a 20-page document, the appeal ruling addressed all the defendants' fairness concerns in a short, unreasoned and unsupported paragraph stating: 'As for the other defences, the defendants were given enough guarantees to have fair trials. Each suspect was informed of the kind of accusations filed against him. He was given ample chance to defend himself and to choose his legal advisors and attorneys in person with the assistance of legal counsellors. He was given the chance to interview the defence witnesses. He used his rights to fully defend himself. He was not forced to say what he did not want to say. Then the defence he is using in this regard is rejected too.' Dujail Cassation Judgment. supra note 38. at 14.
55. ICTY Judgment, Kodić and Čerkez (IT-95-14/2), Appeals Chamber, 17 December 2004, § 128-129 (clarifying that the indictment must contain a precise statement of facts and crimes with which the accused is charged and unambiguously state the nature of the alleged responsibility).
56. See also Art. 14(3)(a) ICCPR, supra note 2 (noting an accused has a right to be informed promptly and in detail of the charges against him);
57. IHT Statute, supra note, 3, Art. 19(4)(a) (same);
58. Human Rights Committee Communications No. 1128/2002, Marques de Marais v. Angola, §5.4 and 253/1987,
59. Kelly v. Jamaica, §5.8 (noting that the prompt notice requirement in Art. 14(3)(a) of the ICCPR means that this information must be conveyed as soon as the person is charged with the criminal offence).
60. After investigation has finished cases are referred to the trial chamber on the basis of a referral decision, which contains the factual allegations against each defendant and the legal articles they are alleged to have violated. After hearing of complainants, witnesses and examining prosecution evidence the trial chamber then draws up a detailed accusation decision containing final charges. The accusation decision is the formal charging instrument. See Iraqi Law on Criminal Proceedings (No. 23 of 1971) §213(A) Arts 131 and 181. The presentation of the accusation decision after the prosecution evidence was heard implies there should be reasonable time for the defence to prepare.
61. See e.g. Charging instrument against Abd Allah al-Ruwaid, 15 May 2006, generally charging 'commission' under Art. 15(A) for all crimes including wilful killing, and torture, when the prosecution never presented or alluded to evidence that he 'committed' these crimes.
62. See supra note 43.
63. After the killing of Sadun al-Janabi in October 2005, defence counsel demanded that they be given a choice of protective personnel (rather than have guards provided by the Ministry of interior); that they be issued weapons and appropriate licences, and that an impartial investigation be conducted into the killing of al-Janabi. In March 2006, there were delays in paying the guards assigned to them by the Ministry of the Interior, and there was reportedly still no offer to relocate outside of Iraq. A third defence counsel was murdered in June of 2006.
64. Rules of Procedure and Gathering of Evidence with Regard to the Supreme Iraq Criminal Tribunal (2005), Rule 23(2) (hereinafter IHT Rules).
65. IHT Rules, supra note 48, Rule 42(2).
66. An author specifically discussed this question with investigative judges before and during the trial phase.
67. See IHT session, 6 April 2006. The trial chamber stated it disclosed this evidence in a timely manner to the accused on 19 June 2006. See Dujail Trial Judgment, supra note 36, at 60-61. Yet this was session 35 of the 41-session trial.
68. See Human Rights Watch, Judging Dujail: The First Trial Before the Iraqi High Tribunal, Vol. 18, No. 9(E), November 2006, at 53.
69. See IHT Rules, supra note 48, Rule 40.
70. We have researched this point extensively, including in discussion with the Chief Investigative Judge and defence lawyers. Defence counsel were present during the questioning of their own accused, but do not appear to have participated in any other parts of the investigation.
71. Confidentiality measures may be valuable and in Iraq there may be good reasons for their Application. Yet the measures appeared to have been applied in a blanket manner, rather than on a case-by-case basis.
72. Dujail Cassation Judgment, supra note 38, at 20. To many observers (unaware of last-minute changes to the composition of the trial chamber) the cassation chamber judgment marked an important but unwelcome boundary: Between a tribunal struggling in good faith but limited capacity to deliver a judicial verdict, and the slide into a purely political process.
73. See e.g. Dujail Trial Judgment, supra note 36, at 66-67 (unconvincing attempt to impute Bandar's knowledge);
74. ibid. at 108-109 (asserting that Saddam Hussein knew that the probable result of his order would be killing without any evidence);
75. ibid. at 218, 222-223, 225-227 (trying to assert requisite knowledge of Taha Yassin Ramadan without evidence);
76. ibid. at 250 (stating that although everyone is entitled to the presumption of innocence, based on the evidence in the case, especially Abd Allah al-Ruwaid's report, the court 'cannot presume good intent');
77. ibid. at 248 (attempting to assert, without evidence, Abd Allah al-Ruwaid's knowledge that torture and killing were the probable result of his actions);
78. ibid. at 262 (same for Ali Dayih Ali);
79. ibid. at 275 (same for Mizher al-Ruwaid).
80. See e.g. Dujail Trial Judgment, supra note 36, at 105, and 111-112. There is evidence in the dossier to indicate that Hussein may not have known of these criminal acts when they were committed. The fact that a subsequent report was submitted to him outlining what had taken place in Dujail suggests that there was a need for such a report because before that time Hussein had been unaware of those activities. There is also evidence in the dossier that once Hussein became aware of the detention and exile of many of the Dujailis, he released them.
81. System crimes require a detailed exploration of the system itself, and not merely its results. The results are manifested in the underlying offences that constitute what is called the 'crime base' (e.g. murder, torture, rape, deportation, etc.). The testimony of the complainants and the documentary evidence of the Dujail case succeeded in establishing the crime base, but often not the responsibility of the accused for the crime through evidence of his role in the overall system.
82. Dujail Trial Judgement, supra note 36, at 248.
83. According to the IHT statute all accused are presumed innocent until proven guilty. IHT Statute, supra note 3, Art. 19(2).
84. English-language commentators have been confused over the burden of proof the Tribunal would be relying upon to support its findings. This confusion stems from an error in a widely-circulated English version of the Iraqi Criminal Procedural Code, in which 'conviction' (iqtin'a is mistranslated as 'satisfaction'. See Iraqi Law on Criminal Proceedings (No. 23 of 1971), Art. 213(A). Tribunal judges stated at the opening of the Dujail case that they would be using the standard civil law burden of proof of intime conviction du juge. However, to make the matter more confusing, in the Arabic written judgment the trial chamber has in fact used the language of 'beyond reasonable doubt'.
85. For examples of the court's use of reasonable doubt language see, Dujail Trial Judgment. supra note 36, at 53, 65, 99, 104, 188, 215, 230, 246, 261 and 277.