ICTJ in the News

January 6, 2004

Can they convict Saddam?

Cape Argus

A human skull lies on a plastic bag after being pulled from a mass grave on one of Saddam Hussein's killing fields.

A damning exhibit when Saddam is put into the dock some time later this year?

Maybe.

But first the prosecution might have to link Saddam directly to this skull, which was among the remains of 3 000 villagers dug up in Mahaweel, 90km south of Baghdad.

It is suspected the victims were executed during the 1991 Shi'ite revolt against Saddam.

No doubt it was murder, but the linkage to Saddam could be a crucial part of the defence case of what is likely to be one of the most spectacular trials in history.

It may seem obvious to most of the world that Saddam is guilty of war crimes, crimes against humanity and perhaps genocide during his 24-year rule.

However, capable attorneys for the former Iraqi leader would have an array of options from which to choose a defence strategy.

Even if Saddam does not decide to defend himself, his lawyers can be expected to challenge the prosecution on numerous legal fronts, according to international law experts.

These will include contesting the legitimacy of the court that will likely try him and questioning evidence that seeks to link him personally to war crimes.

His lawyers might portray some of his alleged crimes as legitimate means to defend Iraq's sovereignty against domestic revolt.

The defence may also argue that most of the world, including the West, did not see his government's actions as crimes when they were allegedly being committed and may have actually aided and abetted him with intelligence and arms, including knowledge and material to make weapons of mass destruction.

"One thing he might try to do is question the whole legitimacy of the (Iraqi) court, given that the court has been established by an occupying authority and a temporary government that doesn't represent the Iraqi people in an elective way," said Hanny Megally, Middle East director of the International Centre for Transitional Justice.

The Bush administration is leaning towards allowing the new Iraqi Special Tribunal, established by the United States-appointed Iraqi Governing Council four days before Saddam's capture last month, to try the fallen dictator. John Negroponte, the US ambassador to the United Nations, last week presented the court's statutes to the Security Council.

Pierre Prosper, the US ambassador-at-large for War Crimes Issues, is to travel to New York next month to brief governments on the council about how the court would work, amid criticism that the Iraqi tribunal cannot give Saddam a fair trial.

Many human rights activists and international law experts believe the only way to deny Saddam this defence is to ensure a legitimate trial by a UN ad hoc tribunal, like that for Yugoslavia and Rwanda.

Though the statutes of the Iraq Special Tribunal would allow some foreign judges to form a tribunal similar to recent war crimes courts in Cambodia and Sierra Leone, that might still leave the tribunal open to charges of bias and inexperience, as Iraqi judges and prosecutors must be trained over the next six months.

A fair trial would require a high standard to prove the charges, especially of genocide, experts say.

"You have to establish that (Saddam) actually committed the acts in question ... with a special mental intent to destroy in whole or in part a national, ethnic, religious or ethnic group," said Mark Drumbl of the Washington and Lee School of Law. He was a defence lawyer in the Rwandan national war crimes court.

Genocide charges against Saddam will probably focus on attacks that allegedly tried to destroy at least part of the ethnic Kurds in the north and Shi'ites in the south of Iraq.

Saddam's defence team will probably rely on two principal arguments: that the prosecution cannot prove his mental intent to commit genocide and that an insufficient number of victims were killed to demonstrate an attempt to destroy the group, even in part.

"In Nazi Germany and Rwanda, unlike in Iraq, you had an explicit political ideology of ethnic or national superiority that for a long period of time deliberately targeted another population that was publicly debased as subhuman," Drumbl said.

"I don't know if you necessarily have that same political tinge to the ethnic or religious superiority in Iraq."

War crimes charges bear a lower burden of proof and are more likely to be successful against Saddam, but they usually carry a lighter sentence.

Intent does not need to be as well established and an entire group does not have to be threatened. War crimes charges are intended for victims of a political or social class.

Crimes against humanity, which can include murder, rape and torture, are acts against individuals in the context of politically motivated violence.

Saddam's lawyers will probably argue that the former leader cannot be personally tied to any of these crimes.

"The best way to prove the mental element is through direct evidence," said Drumbl. "The Nazis left their prosecutors with a fairly easy task because they compiled statistics and the political rhetoric was largely written down."

Saddam's lawyers can probably claim he was unaware of these crimes since he may have never signed any orders to commit them.

However Mary Ellen O'Connell, a professor of international law at Ohio State University, said: "You don't have to have documents personally signed by him.

"We have plenty of news footage, articles, statements that you can admit, and witnesses willing to testify.

"The problem with this case is going to be the volume of evidence and how to handle it."

The defence of being outside the chain of command has weakened since the Nuremberg trials because of precedent-setting rulings in the Yugoslavia and Rwanda tribunals.

"You don't now have to show that the commander subjectively knew what was taking place," said Drumbl.

"You can establish command responsibility on an objective standard, that he ought to have known and didn't prevent it."

Yet the prosecution must still meticulously connect the deaths of specific persons with Saddam.

"Even if you find mass graves, you still have to link up the individuals who have been killed to the killer," said Drumbl.

"You have to prove beyond a reasonable doubt that a leader was responsible for the murder of victim A or victim B."

If such a link is proven, Saddam's lawyers may try to fall back on the defence that his actions were a legitimate suppression of an internal revolt.

"You might be able to contour a possible defence that the methods used were necessary and proportional under the laws of war to maintain the sovereignty of the state," said Drumbl.

"Any evidence that indicates that folks Saddam killed in Iraq were killed in their capacity as internal insurgents in armed conflict is going to help him in defence of those charges."

Governments may use violence against insurgents if it is proportional, necessary and discriminate.

But the prosecution may well counter that Saddam's attacks against insurgents were so broad that they did not discriminate between insurgents and innocent civilians.

Saddam's defence team could well argue that his bloody repression of the 1991 revolt followed a televised call by then US president George Bush to the Kurds and Shi'ites to revolt.

"If you can establish that the reason why individuals rose up in insurrection was that they were incited to do so by an individual who called what they were doing an actual insurrection, it does create a context whereby Saddam can argue he was putting down an internal armed conflict, that he was not simply attacking civilians," said Drumbl.

Saddam's lawyers could also attempt to implicate the US and other Western governments for the help they provided him during the 1980s.

There is evidence that the Reagan administration provided him with battlefield intelligence to Saddam to help him invade revolutionary Iran in 1981.

A 1992 report by the US Senate Committee on Banking, Housing and Urban Affairs revealed that the Reagan and first Bush administrations exported chemical, biological, nuclear, and missile-system equipment to Iraq, including anthrax, VX nerve gas, West Nile fever germs and botulism.

Iraq's weapons dossier delivered to the UN Security Council in December 2002 named dozens of Western companies that had supplied Iraq dual-use items (items which can be used for civilian or military purposes).

Newly declassified documents show that US Defence Secretary Donald Rumsfeld, as President Ronald Reagan's Middle East envoy in 1984, told Iraqi Foreign Minister Tariq Aziz that Iraq's use of chemical weapons against the Kurds in Halabja would not deter US interest "to improve bilateral relations, at a pace of Iraq's choosing".

The US's direct involvement in the war against Iran in the 1980s was shown last month, when the International Court of Justice ruled that the US bombing of three offshore Iranian oil platforms was unjustified.

Ramsey Clark, the former US attorney-general, and Jacques Verges, a French lawyer who has represented Gestapo officer Klaus Barbie, Carlos the Jackal and has been hired to defend Aziz, have said they want to represent Saddam.

The statutes of the Iraqi national tribunal allow only an Iraqi to be a lead attorney, though foreigners can join the defence team.

Clark declined a written request for an interview.

But Verges told journalists that if he defended Saddam, he would indeed pursue the matter of Western backing of Saddam, and would call Western heads of state from 1980 until today to testify.

He told French radio station Europe 1: "If he is judged and treated like a pariah, clearly his defence counsel would have to say; 'But this pariah was the friend of all the Western heads of state. He was not only their friend but their ally'."

Though Saddam's Western connections are already well known, their repetition and likely authentication in a highly publicised trial during a presidential election year could be embarrassing for the Bush administration.

A US official at the UN, who spoke on condition of anonymity, told Independent Newspapers: "There is certainly the potential for embarrassment if some of that stuff comes out.

But this administration will argue that it was a former administration that was involved and that they should be not held responsible."

He said mistakes were made in the past but these were reversed by toppling Saddam.

Some experts say that blaming the West will not help Saddam much.

Only Iraqis can stand trial in the Iraqi Special Tribunal that will probably devise rules of evidence that exclude the involvement of foreign governments.

Ultimately, the prosecution will focus on linking Saddam to specific crimes and it will be there that Saddam's defence will succeed or fail, these experts said.

Revealing evidence about US involvement with Saddam's regime "can be embarrassing, but at the end of the day the United States did not pull the trigger and didn't order the bombs to be launched", said O'Connell.

"Those decisions were Saddam's," she concluded.

A case for the defence

* Challenging the legitimacy of the court.

* Arguing that Saddam used legitimate means against domestic revolt which was incited by President George Bush in 1991.

* Arguing most of the world did not see his actions as crimes when they were committed.

* Pointing out that many nations aided and abetted him at this time.

* Some, he could argue, gave him the material to make weapons of mass destruction.

* Challenging the prosecution to prove his mental intent to commit genocide.

* Arguing that he did not kill enough people to demonstrate an attempt to destroy an ethnic group.

* Demanding proof that ties Saddam to crimes against humanity, which include rape, murder and torture.