Saddam's trial was flawed but reasonably fair, experts say

Posted in Iraq | 06-Nov-06 | Author: Julia Preston| Source: International Herald Tribune

Iraqis in Baghdad celebrate the death sentence verdict for Saddam Hussein.

The yearlong trial that ended Sunday with a sentence of death by hanging for Saddam Hussein had serious legal flaws that left doubts about whether he was allowed to present a full defense, international legal experts said.

Lawyers and human rights advocates broadly agreed that the Iraqi tribunal's proceedings frequently fell short of international standards for war crimes cases. But even critics of the trial said the five Iraqi judges who heard the case had made a reasonable effort to conduct a fair trial in the face of sustained pressure from Iraqi political leaders for a swift death sentence. American lawyers pointed to substantial evidence offered by the prosecution implicating Saddam in the crimes against humanity with which he had been charged.

"Did this meet the standards of international justice?" asked Jonathan Drimmer, who teaches war crimes law at Georgetown University Law Center in Washington. "The answer is no. But to look at the ultimate verdict, it certainly is consistent with the evidence presented."

Miranda Sissons, a senior associate at the International Center for Transitional Justice, a group that has been severely critical of some of the trial proceedings, said, "This was not a sham trial," and added, "The judges are doing their best to try this case to an entirely new standard for Iraq."

In a trial that opened on Oct. 19, 2005, Saddam was accused along with seven co-defendants in the executions of 148 men and boys in Dujail, 35 miles north of Baghdad, in 1982. The mass killings came after what was said to be an assassination attempt against the Iraqi leader.

Whether the trial is seen to have been fair is a vital issue for the United States-backed Iraqi government. When the tribunal was created in December 2003, American and Iraqi officials hoped that it would be a leap forward for the justice system in Iraq, left moribund under Saddam's dictatorial rule, and would help bring some reconciliation between the country's majority Shiites and minority Sunnis.

Since then the country has descended into daily bloody factional strife. The trial was fair enough to justify the elation Sunday among Iraqis who suffered under Saddam's rule but also had enough defects that Saddam's Sunni supporters, who dominated his government, could still contend that it had been victor's justice, as Saddam's defense lawyers, led by Khalil al-Dulaimi, said Sunday.

The trial was troubled by extreme security issues. Three defense lawyers were assassinated while it was unfolding.

Critics cited frequent efforts by Iraqi officials to speed up the trial and influence its outcome. The first chief judge, Rizgar Muhammad Amin, an Iraqi Kurd, resigned in January, saying he was tired of criticism from top Iraqi officials of his handling of the case. A second judge who was in line to succeed him was barred from becoming chief judge because he was said to have had ties to Saddam's Baath Party, said human rights advocates who have been following the trial.

"The message by politicians and the executive has been quite unambiguously that if the judges do not do what public expectation demands, they will be in trouble," Ms. Sissons said. "Iraqi officials have sent the message, 'We can reach into this court.' "

Raouf Rasheed Abdel-Rahman, who took over as chief judge and presided to the end of the trial, was much less tolerant than his predecessor of outbursts in the courtroom by Saddam and other defendants, who challenged the legitimacy of the court and boycotted many trial sessions. The chief judge frequently allowed the prosecutor, Jaafar al-Mousawi, to summon evidence and witnesses without first showing them to defense lawyers, violating a basic tenet of trial fair play.

"There was a certain amount of trial by ambush," said Richard Dicker, who has been monitoring the trial for Human Rights Watch, a New York-based group.

On June 13, seemingly in a fit of impatience, Judge Abdel-Rahman abruptly cut off the defense case, barring defense lawyers from calling additional witnesses. "There was a lack of impartiality and judicial temperament" from Judge Abdel-Rahman, Dicker charged.

However, several American criminal lawyers said the prosecution marshaled surprisingly convincing documents to support the case, including documents showing Saddam's signature on orders of execution for many of the victims.

"Saddam was convicted on the strength of his own documents," said Michael Scharf, a professor at Case Western Reserve University School of Law who advised the Iraqi tribunal during the trial.

But many trial observers were withholding final opinions Sunday because the Iraqi judges had not issued their written judgment. The judgment, which should be a voluminous document in which the judges explain their legal reasoning for each of the verdicts, is expected to be issued this week.

American lawyers in Iraq dismissed suspicions that the verdict had been delayed to give the Bush administration a political victory in Iraq close to Tuesday's elections. They said the verdict was postponed from its original Oct. 16 date because the judges were still writing it.

The tribunal also issued death sentences for two co-defendants, Barzan al-Tikriti, Saddam's half-brother, the former chief of Iraqi domestic intelligence; and Awad al-Bandar, president of Saddam's revolutionary court. One defendant was sentenced to life in prison, three defendants will serve 15 years in jail, and one was acquitted.

Saddam acknowledged that he had ordered the crackdown in Dujail, but argued that it was justified because the men who apparently tried to kill him were Shiite militants backed by Iran, at a time when Iraq was at war with Iran.

Accusations by Saddam's supporters that the trial was manipulated by United States officials were not borne out, American lawyers who followed the case said. An office organized by the United States Embassy helped the tribunal with the investigation and provided legal and logistical assistance. But the Iraqi judges frequently ignored their advice and generally insisted on sticking with familiar procedures from the Iraqi justice system.

"The U.S. government was not the puppet master of this tribunal," Scharf said.

Drimmer said that "the trial conduct was a step back from the kind of international justice we had hoped for," and added, "But ultimately having Saddam Hussein prosecuted in a transparent proceeding is a major step for Iraq."