ICTJ in the News

November 6, 2006

Saddam's trial a challenge from the start

USA Today

By Jim Michaels

Iraq's ability to fairly judge Saddam Hussein was on trial as much as the former dictator over the past year.

The trial faced daunting challenges. The streets of Baghdad have grown more violent. Defense attorneys were targeted outside the courtroom, and judges struggled to maintain order inside. Iraqis had no modern tradition of an independent judiciary, but insisted on holding the trial within their borders.

Despite this, some legal experts say the tribunal managed to conduct a reasonably fair trial. Dozens of witnesses were heard, and more than 1,000 pages of evidence were entered into the record.

"I don't think it was a miscarriage of justice," said Michael Scharf, a professor at Case Western Reserve University law school in Cleveland who helped train the judges.

On Sunday, President Bush called the results of the trial of Saddam and his seven co-defendants on charges of crimes against humanity a triumph of the rule of law. "It's a major achievement for Iraq's young democracy and its constitutional government," he said.

Rarely has a former leader been tried by his countrymen. Historically, war crimes trials have been conducted by an international court, as in the case of Yugoslavia's Slobodan Milosevic, or victorious nations, such as the Nuremberg trials after World War II.

The Iraqi High Tribunal, set up with U.S. assistance, is a hybrid. Saddam was accused of crimes against humanity, a charge derived from international law. The court procedures, however, were based mostly on Iraqi tradition and law.

Saddam and his seven co-defendants were charged in connection with the government's response to a botched assassination attempt in 1982 when his convoy was attacked as it drove through the mostly Shiite village of Dujail.

The government responded by razing orchards around the village and rounding up 148 villagers, who were sentenced to death.

Iraqis were adamant about trying Saddam in Iraq, Scharf said. It gave the Iraqis a "sense of ownership" over bringing Saddam to justice, Scharf said.

Some legal experts saw that as an uphill fight. Iraq has no modern tradition of an independent judiciary. "There was really a lack of capacity and experience," said Nehal Bhuta, a Human Rights Watch attorney who observed portions of the trial in Baghdad.

Iraq's political instability and violence made holding a credible trial even more difficult. The trial had to be held in an extensively fortified courtroom in the high-security Green Zone. Three defense lawyers were killed. "If people thought they were going to have a trial in the middle of an all-out war they would have thought twice about it," Scharf said.

The court, which met from October 2005 to July 2006, was hardly a model of decorum. Iraqi courtroom procedures allow defendants to address the court and question witnesses. The first chief judge, Rizgar Mohammed Amin, quit in the middle of the trial. He had been criticized for allowing Saddam and his co-defendants to rant in court.

The sessions were marked by outbursts from the defendants, boycotts by Saddam and his defense attorneys and just plain bizarre behavior. Some defendants, including Saddam, were ejected from the courtroom. After boycotting two hearings in February, the former Iraqi dictator entered the courtroom, shouting, "Down with Bush. Long live Iraq." In another session, Saddam advocated attacks on U.S. forces.

Tariq Aziz, once a powerful member of Saddam's inner circle, testified in May in pajamas.

Supporters of the tribunal say Saddam and his attorneys were given many opportunities to mount a defense. They alternated between challenging the legitimacy of the court and undermining prosecution attempts to personally link Saddam to the retaliation.

"I am the president of Iraq by the will of Iraqis," Saddam thundered in May when asked to enter a plea.

Prosecutors needed to prove that Saddam personally approved the torture and executions without fair trials or knew about those actions and did nothing to stop them.

"There was no evidence of a direct order" from Saddam to retaliate against the village, said Marieke Wierda of the International Center for Transitional Justice, a New York-based group that helps countries heal by addressing human rights abuses. Nor did the prosecution establish in court that Iraq's system was so repressive that turning the villagers over to the Revolutionary Court was equivalent to a summary execution, she said.

Prosecutors did, however, introduce documents showing Saddam signed execution warrants drafted by the Revolutionary Court against the 148 villagers.

And in March, Saddam admitted he personally approved the razing of orchards. "I signed that decision," he said. "And nobody forced me to sign that decision."

Even though the comments hurt Saddam's case, he probably couldn't prevent himself from blurting it out, Scharf said, because he still sees himself as Iraq's leader. "He just couldn't control himself," Scharf said.