To What Extent Was the Trial of Saddam Hussein a Show Trial - Essay Example

Following the world famous trial of Saddam Hussein Al Tikriti in Iraq in 2003, debate has been raging on the fairness or otherwise of such atrial. Saddam Hussein was the ruler of Iraq of many years but was ousted from power by a joint US and British army operation. This happened following the September 11 terrror attacks in the US which were acknowledged as having been undertaken by the notorious Al Qaeda Network led by Osama bin Laden and based in the depths of Afghanistan. Saddam was seen as having cooperated with Osama in facilitating the deadly attack while working on cohorts with the Afghanistani leader Mullah Omar. Saddam was also accused by the invading forces of having a secret nuclear weapon development program. The fear was that he was a vindictive and aggressive leader who could use such weapons for highly destructive purposes. So when the US attacked Afghanistan to flash out Osama, it also made a detour to Iraq to help deal with Saddam. The subsequent raid on Iraq succeeded in forcing him out of power but as it turned out not a shred of evidence was found to support the claims that Saddam was indeed manufacturing nuclear weapons. However, Saddam could still be tried under the rules of International Criminal Court in The Hague for crimes against humanity in his own country. A case in point was the use of poison gas to kill thousands of Kurds in Dujail during his reign. The Kurds were opposed to the excesses of his dictatorship and acted as an active opposition to his rule. The trial that was held following his capture in 2003 was therefore an indictment especially for his role in this mass execution exercise. The trial raised many issues with some viewing it as a mere show with a predetermined conclusion in which Saddam would inevitably be executed. Others viewed it as a fair trial which legally arrived at the conclusion that he was indeed guilty and could thus be executed. This paper delves into the pros and cons of this argument to determine if this was indeed a proper legal process or a mere show trial. Table of Contents Topic Page Introduction …………………………………………….. 4 Show Trials V Legal Trials ……………………………… 5 Defects in the Saddam Trial Proceedings ……………….. 6 Positive Aspects of the Saddam Trial …………………… 12 Defense Perspectives …………………………………….. 15 Lessons from the Saddam Trial …………………………. 18 Conclusion……………………………………………….. 22 Introduction Saddam Hussein was the former President of Iraq who was forcefully deposed from power through a United States (US) Army led Gulf War in 2003. Before his overthrow, he had been accused by the United States and British intelligence networks of operating a secret program to develop Nuclear Weapons of mass destruction for his country. He was also accused of cooperating with the Osama Bin Laden led Al Qaeda terrorist network which had already owned up to being responsible for the September 11 2002 attack on the U S among other terror activities.1 Saddam went into hiding immediately he lost political power but was later discovered literally hiding underground by US soldiers. He was captured and subsequently tried by an Iraqi court on charges of the mass killings of Iraqi citizens during his long rule. The court sentenced him to death and he was hanged in public.2 His subsequent trial was carried out by the Iraq High Tribunal that was convened by Iraqi judges within the country. However, most of the investigations into the case and were carried out by the US government through the forces and administration they had in Iraq. The trial was lengthy and several issues came out of it that made observers wonder if it was indeed a trial or just a show for public consumption. This paper sets out to analyze and discuss the extent to which his trial was a sound legal procedure and to what extent it was a show for consumption by an international audience. Show Trials V Legal Trials Show trials are primarily political proceedings with the purposes of swaying public opinion in a certain direction. They may be used to create the impression that there is a legitimate legal proceeding but inevitably lead to the conviction of the accused. This kind of procedure may be used to silence political critics and competitors or help keep an accurate historical record of past atrocities while acting as a catharsis for the victims. For instance, critics have pointed out that the Rwanda tribunal was constituted with the aim of merely atoning the indifference of the United Nations (UN) and the rest of the world who had turned their back on the country at the hour of direst need.3 A legal trial on the other hand is purely concerned with the determination of guilt and the assessment of the level of blame through the use of fair procedures. In such proceedings showmanship is irrelevant since the bottom-line is that the person on trial is either guilty as charged or not, public opinion is therefore irrelevant in this case. However, the difference between these two types of legal proceedings is not so clear-cut. In fact, in many cases there is no clear dividing line between a show proceeding and a legal one. One usually has aspects of the other. A judge or jury will always do their best to keep out influences emanating from public pressure and press trials in cases that attract substantial public interest.4 Defects in the Saddam Trial Proceedings The Iraq High Tribunal (IHT) merits being regarded as an international tribunal since it was modeled on the UN war crimes tribunals of Rwanda, Yugoslavia and Sierra Leone. Its statute provided for guidance by the proceedings of these previous tribunals and the assistance of international experts to its judges. So even if it was a domestic court, it was still an international proceeding, especially because of the international interest in the accused person before it: Saddam Hussein Al Tikriti. 5 Right from the onset on April 17, 2003 when Pierre-Richard Prosper the US Ambassador at large for War Trials announced that Saddam Hussein would be indicted for crimes against humanity; there was a hue a cry about the fairness of such proceedings. Most of the outcry came because the declaration indicated the he would be tried by the Iraqi Government for war crimes, crimes against humanity and genocide. Human rights groups had hoped and expected that such a trial would be carried out by an ad hoc or even hybrid international tribunal and not the government.6 The protest of course arose from the fact that the Newly formed Iraqi Government which had just replaced Saddam’s government was fundamentally consisting of his political opponents and was therefore not likely to give him a fair trial. Moreover, the government had been hoisted onto power with the help of the US Government of President George Bush, who had led the overthrow of Saddam in the first place.7 The skepticism surrounding the trial, it turned out was well founded. Before the trials even begun the President of Iraq declared that Saddam had confessed to his sins. This was a highly prejudicial statement to a trial that was supposed to be dealt with by normal court proceedings. This was not only a commission of sub judice by a top government official who should have been better informed on the matter than that, it also amounted to a gallery trial with a foregone conclusion. Under such circumstances in normal proceedings the defendant could have been entitled to straight away apply for a mistrial which would have been considered even under the First Amendment of the United States constitution. But since this was the Saddam trial which in itself was a premeditated international circus of momentous proportions, no such liberties would apply. In protest, one of the judges of the Iraqi High Tribunal (IHT) resigned from the case on the grounds of principle and conscience.8 Another major defect in the trial process was the act of adding new charges in the middle of the trial. This is not acceptable as it potentially undermines due process. Additional charges that were not before the court can only be added before the actual trial begins; otherwise another totally different case would need to be instituted against the defendant. This requirement was clearly ignored during the Saddam trial. In fact, the prosecution had a field day bringing up more charges preventing potential witnesses for the defense from testifying. Two who did testify were beaten into recanting their evidence and later charged with perjury. Defense motions were flatly denied, including potentially exculpatory evidence which would have sufficed to strengthen its case. Moreover, the defense was not given a conclusively authoritative version of the Iraqi High Tribunal statute; and evidence and procedure rules before the trial as required by law9. In fact, a trial; no matter how elaborately carried out; is only as fair as the substantive and procedural law that it applies. If these violate due process then the entire proceeding is unjust to the defendant.10 There are certain glaring defects in the substantive law under which Saddam was tried. One of these is that there was a n open violation of the rule of retroactive application of the law. Article 15 of the International Covenant on Civil and Political Rights states that; No one shall be held guilty of a criminal offence that did not constitute an offence at the time of commission. What this means is that stealing is only an offence if provided for by law before the act is committed. Outlawing stealing today and then charging someone who stole yesterday under the new law is therefore a null judicial process. Legislation outlawing crimes against humanity were only ratified in the 1990s yet Saddam was charged with offences dating back to 1968 under these legislation. Even if he was subsequently found guilty of having committed these crimes, the fact that they were illegal acts when they were carried out nullifies the substance of the particular charges based on such accusations against him.11 Another major weakness of the process was that certain laws, which lacked specificity, were applied leaving room for all types of interpretations that undermine due process. Under the mandate of the IHT is the enforcement of three laws. These are; intervention in the judiciary and attempting to influence its processes; wastage or squander of national resources; and, abuse of position leading to a threat of war and using Iraqi forces against an Arab country. These laws under the Iraqi Penal Code are so vague that they lead to no specification of the mens rea.12 The fact that these laws carry no specific definition of the crimes involved leaves room for several conflicting interpretations for both the defendant and the court. Such a situation only leads to confusion rather than guidance. One purpose of enacting laws is to help regulate behavior by acting as guidelines on what should and should not be done. What such vague laws succeed in doing is to confuse the defendant on whether he did or did not disobey the law. The rule outlawing ignorance as a valid defense is not applicable here since he flaw is inherent in the law itself and cannot be blamed on the defendant. In simple terms, it is not quite clear what the defendant is defending himself against.13 Another interesting set of events were the constant changes of presiding judges at the tribunal. First, Judge Rizar Amin resigned. His resignation he stated was due to public criticism of the manner in which he was handling the trial by to Iraqi Government Officials. He attributed this criticism to pressure emanating from a high level official in the Shi’a party. His successor Saeed al Hameesh was swiftly transferred from the case after he was accused of being a former member of Saddam’s Baath party. A new judge, Raouf Rasheed Abdel Rahman was appointed to the tribunal. The defense pointed out that he was not likely to be partial since he was born in Halabja, the Iraqi town that was attacked by government forces using poison gas in 1988. There were complaints by the defense that the judge was openly biased and expressed opinions openly prejudicial to the impending trial. He strongly believed that Saddam’s guilt was a forgone conclusion and that he should be hanged without a trial. 14 The rights of Saddam Hussein to a lawyer of his choice were also seriously violated. He was not allowed to meet his lawyers in private but always in the presence of United States officials. This seriously denied him the right of privacy with his lawyers and room to build up his defense. In fact all he said and did was strictly monitored thus giving credence to allegations that the trial was being orchestrated to strictly follow a preplanned course of events.15 Another major weakness of such trials is the total lack of room for appeal. Such tribunals always serve the purpose of the first and last stop for justice. They are the highest courts of recourse and nothing can be done to challenge their rulings once made. The dramatic and speedy way in which Saddam was executed following the trial attests to this fact. The impression created was that Saddam was always going to be hanged no matter what turn events took. Even individuals who commit cold blooded murder are entitled to an appeal against the ruling. There was no such provision in this particular case. There were just mysterious characters in the background breathing down the necks of the judges to see that “justice” was done. Justice in this case meant only one thing, the execution of Saddam. It therefore goes without saying that the ultimate outcome of this trial was as much premeditated as it was obvious.16 Interestingly, the rules of ICCPR which have been adopted by international tribunals and all such courts, provides for the presumption of innocence but does not provide for the right to challenge a ruling once made. Experience has shown that such an elongated process as appeal only serves to lengthen public protests, where the public presumes that the accused is guilty. Article 27 of the IHT mandate stipulates that the execution of the accused person must be carried out within 30 days of the date when the judgment becomes final and non-appealable. In reference to this article, the Iraqi deputy justice minister Bosho Ibrahim declared that it would be illegal to execute Saddam within thirty days of the Cassation panel upholding his innocence. He was overruled on this and just two days after the sentence, Saddam was executed. Ibrahim was right of course. The article assumed that the judgement on Saddam would be final and non-appealable. That assumption is incorrect. Paragraph 266 of the Iraqi Code of Criminal Procedure provides that a convicted person has the right to request the correction of a legal error in the Court of Cassation’s decision, provided the request is presented within 30 days, from the date the convicted, imprisoned or detained person is informed of the decision.17 The trial of Adolf Eichmann in the wake of the Jewish Holocaust is another case in point. The rights of the accused remained peripheral in the trial as he was elevated to a monster embodying the entire Holocaust. Justice was only seen in the form of his being executed as far as the Jewish community and their numerous sympathizers in the world were concerned.18 Positive Aspects of the Saddam Trial Despite all the criticism that the trial faced, there were several positive aspects to it as well. One such aspect was the fact that it was the first such trial in the Middle East to be held openly via television. People in the region who had never had the opportunity before to watch a trial unfolding had their chance. This not only served as a valuable lesson to for the locals on how such cases are provided but was quite enlightening to the local legal fraternity as well on the application of international law standards, or at least some of them.19 Another important aspect of the case was the manner in which the judges at the IHT bent over backwards to allow Saddam to cross examine his accusers and address the bench. He promptly took advantage of this opportunity a staggering 39 times. Moreover, the closing by the defense led to the acquittal of one of the alleged accomplices of Saddam and the light sentencing of three others. The purposes of such trials as that of Saddam Hussein are diverse and even controversial. But one of the main undeniable purposes is the need to create an atmosphere of reconciliation and peace. The bottom line is there are persons who feel that they were adversely affected by the excesses, real and perceived of the Saddam regime. The most natural recourse would be for such persons to seek revenge in order to make amends. Though natural this is not the correct or acceptable course of action mainly for the reasons that it is not legal and two wrongs do not make a right. Subsequently, another more legal and acceptable recourse had to be established to handle such a potentially explosive situation. The best way out would be to carry out such a trial as that of the IHT. In effect, the IHT therefore served the dual purposes of providing an orderly and legal method of dealing with the alleged atrocities while helping to reconcile society and create a peaceful atmosphere at the same time. The same purposes have been served by other similar legal tribunals such as the Nuremberg, Rwanda and Yugoslavia tribunals among others.20 It is hard to imagine an alternative method that would have been put to use to solve the situation in which the new Iraqi administration found itself. Here was Saddam Hussein accused by several citizens, especially the Kurdish populace of having grossly violated their rights during his long bloody rule. Meanwhile there was the international perspective of his unwarranted attack on Kuwait that caused several deaths of innocent persons. To do nothing would be tantamount to the new administration taking over the burden of the misdeeds the former government was accused of. To summarily execute Saddam would be viewed as unjust and unfair to the former ruler. When one understands this perspective of things, then he will inevitably come to the conclusion that the IHT, even with its inherent flaws was, just like the Nuremberg trials, the best way out. 21 The IHT also inadvertently served the purpose of clearing the air on certain accusations against Saddam that had absolutely no basis. Some individuals in the British and US administrations were desperately trying to make the world believe that Saddam had or was developing weapons of mass destruction. It became totally impractical to bring up such charges against him at the trial for two main reasons. The first is that there is no clear-cut law against manufacturing such weapons when in fact his main accusers, the US, have them. Secondly, not a shred of evidence was found to support this claim. So the trial provided a means of clearing the miasma surrounding Saddam, which included pretty wild claims like the one mentioned above, and leaving him to take responsibility only for what he could be proved to have done.22 The trial also had two significant achievements. First, it listened to Saddam’s defense that as head of state he had a responsibility to protect the people of Iraq against a Kurdish militant Town of Dujail that had openly cooperated with Iran during its war against Iraq. Saddam also complained that the citizens in the town had colluded with militants who tried to assassinate him. So his responses to the townspeople was actually a crackdown on terrorists. This was however later overruled since his reaction had been deemed to be harsh and disproportionate to the alleged threats. It was more of genocide that targeted the guilty and innocent alike in a fell swoop. Another defense of the accused that was rejected was that the courts had found some of the people in Dujail guilty before they were executed. The said trials were dismissed as a sham which did not adhere to due process. Ironically, this is the same charge that critics levied against the IHT. However, by convicting Awad al-Bandar who was the presiding judge of Saddam’s Revolutionary Court which conducted the trials condemned by the IHT. Al-Bandar had been accused of carrying out illusionary trials which condemned 148 villagers to death by ordering their execution. The tribunal sent a strong message to all present and future judges that they too would be judged in future if they presided of such sham trials. This was in essence also a strong message to critics of the IHT that the latter would not tolerate undermining of due process, thus emphasizing their respect for such fully legal proceedings.23 Defense Perspectives The defense in such trials as that of the IHT and others can give insights into the extent to which they considered it legal and fair for their clients. This perhaps is the closest one can come to getting the views of the accused on a diverse array of issues concerning the trial not voiced by the accused person himself. Defense attorneys are an important way of determining whether such a trial is primarily adjudicative or political in nature, and whether or not it even comes close to achieving its purpose of dispensing justice. 24 The aim of any defense attorney is to pursue an acquittal for the client. Where the attorney feels that there is no realistic chance of achieving that, then trial can be said to be fundamentally flawed or an open and shut case. But then any accused person has to be presumed innocent until proved guilty of a given crime under all circumstances. The trial should therefore presume this innocence, unless there is a total flaw. It is with this in mind that defense attorneys’ views come in handy in assessing a case. 25 At the trial of Saddam Hussein, the defense was greatly disadvantaged. Rule 40 of the IHT made it impossible for the defense to get access to the prosecution’s evidence more than 45 days before the trial. It provides for the prosecution to be obliged to disclose witness statements and exculpatory evidence only that close to the actual trial. The downside of this provision was that if the defense was unable to build their case properly within that time, they would be badly disadvantaged. This was really the case considering that the case had eight defendants facing ten charges with thirty six prosecution witnesses and tens of exhibits against them. All of these had to be sorted out by defense attorneys within only 45 days and still build a credible case. This rule seriously crippled the defense case. The only possible course of action was to ask for a continuance which the Tribunal is under no obligation to provide. 26 Three defense counsels were assassinated after refusing to accept the protection they were being offered by the state.27 Though the reason for their refusal was not clearcut, they obviously distrusted protection from the very state that was heavily involved in the prosecution of the Saddam case. The reasons for their mistrust are also just a subject of conjecture, but they clearly feared spying by their so called protectors since the state was highly interested in controlling proceedings throughout the trial. They also expressed fears that their would-be protectors could also be in a position to cause them harm.28 Moreover, if the disclosure is deemed to be prejudicial to on-going investigations, a danger to national security or against public interest, then the prosecution is under no obligation to disclose at all. It is no wonder that that Vanderbilt Law School professor Michael Newton described it as an ambitious undertaking that was bound to stretch the resources and capacity of any legal body to the limit. 29 Rule 40, say attorneys who have appeared in other international trials such as the International Criminal Tribunal for Yugoslavia , flies in the face of the International Covenant on Civil and Political Rights (ICCPR) provisions. Fairness remains quite academic in such trials when the basic requirements set down by ICCPR are glossed over or ignored altogether. Limiting the defendant’s right to speak, manipulating the laws of evidence and prosecution control of proceedings have been identified as some of the common characteristics of show trials. 30 Rule 40 clearly helped the prosecution to manipulate evidence and control proceedings during the Saddam trial thus making the whole process lean towards pageant rather than process. Lessons from the Saddam Trial In October 2006, an international conference and experts meeting was held at the Fredrick Cox Center at Case Western Reserve University School of Law. The conference was titled “Lessons from the Saddam Trial.” It brought together several renowned scholars assorted from different diverse institutions. The aim of the conference was to point out important lessons that had been learned from the trial and that would inform the conduct of similar trials in future.31 The first main lesson that was identified is that it is not prudent to carry out domestic war crimes trials in countries with an environment of an on going conflict. Though domestic trials are the most preferable for the Hague based International Criminal Court, the environment in the domestic setting should be not only peaceful and stable. The conflicts in Iraq spilled into the trial with the killing of defense attorneys. Such and explosive environment is always going to interfere in the proceedings of the case and possibly compromise the outcome. The best option in an Iraq like situation, it was pointed out, is to look for a neutral venue, perhaps in a country within the same region whenever possible. This is to help avoid a situation where the ongoing conflicts may continue to have direct ramifications on the accused with some parties siding with him while others oppose him. The proceedings that obtained in Iraq was termed by some as rash and reckless under the unstable circumstances in which it was conducted. The second lesson from the trial was that post-conflict countries that chose to undertake war crimes trials should get unbiased assistance from a wide spectrum of the international community. Though the trial of Saddam was conducted by a domestic Iraqi tribunal, the hand of the United States during the whole process was more than visible. The US arrested Saddam, gathered evidence against him, drafted the statutes of the tribunal, provided security and financed the process. Meanwhile, the US was still at war in Iraq where they were tackling pro Saddam sympathizers among other groups. It would have obviously lent the tribunal more credence had it been supported by other countries apart from the United States. This lack of cooperation from the US international allies was grounded in the skepticism by some of them such as France and Russia. They were of the opinion that the entire exercise was illegal since the reasons given for deposing Saddam in the first place were based fabrications that did not turn out any evidence when checked out. They therefore held the view that the US and its British ally were facing a serious credibility crisis in the entire Saddam affair. They were therefore openly hostile the entire process and so had no intention whatsoever to lend it credence by participating cooperatively. This absence of international support gave the US a free hand in ensuring that the trial went according to their premeditated script, since there was no one else to countermand their position. For instance, the use of the death penalty as a form of punishment has been outlawed by several countries. Their presence would have compelled the US to consider other forms of punishment for Saddam rather than just taking advantage of the presence of such a law in the Iraqi penal code. The third lesson learned was that steps should be taken to further internationalize the IHT. Though there are provisions in its statute for the appointment of foreign judges to the bench, none was ever appointed. The presence of respected judges from other regions even in the Arab speaking world would have given the IHT more credence and created a perception of fairness and higher credibility. Respected institutions such as the International Bar Association would further strengthen the tribunal by appointing advisers to it. In this way it would cease to be seen as a remote controlled US affair. The fourth lesson is that more effort should be made to ensure the independence of the IHT as a court. The court was undermined on several occasions through interference and undue comments by the Iraqi government. One of the basic fundamentals of the judiciary is its independence to carry out its mandate without interference from the executive. Only then can it remain fair and impartial especially to the intricacies of political intrigues and manipulation.32 The fifth is that domestic war crimes trials should be kept short and focused. One way of doing this is to deal with motions raised by the defense the moment they arise. Elaborate and unnecessarily elongated trials only portray the accused as the victim as time goes by. Waiting until the final judgment in order toe respond to motions raised earlier in the trial was one fundamental flaw in the Dujail trial process of Saddam. Sixth, maintaining control in the courtroom of a case with international ramifications is a pretty tricky affair. The judges must maintain control without unduly harassing defense counsel before the full glare of an international TV audience. One way of doing this is to have standby counsel who will take over the case when the real defense counsel opt to grandstand and play to the international gallery thus disrupting proceedings. However, such counsel must be introduced from the onset and their roles made clear. They should also be advised properly by international advisors on how best to play their role when called upon to do so. Springing out such counsel from nowhere in the middle of the trial can also be construed as a travesty of justice. Conclusion The IHT Dujail trial of Saddam Hussein al Tikriti was a necessary and important proceeding. It had a lot of flaws as have been pointed out and it tended mostly towards a show trial than a sound legal proceeding. It brought out different emotions in different people as it progressed. On accession it even threatened to break down completely especially when assassinations and protests got into the mix. But all in all, it had a lot of sound legal processes and gave the defendant the opportunity to defend himself. So it was not just a show trial but an important sound legal proceeding. References AH Al-Ani, The Trial of Saddam Hussein (Oxford University Press 2007) DJ Sylvester, “Lessons from the Nuremberg and the Trial of Saddam Hussein” in Evil, Law and the State Perspectives on State Power and Violence (College of Law Arizona State University 2006) JF Burns, “For Saddam: “Tribunal Finds Itself on Trial” (The International Herald Tribune Paris 2005 October 10) JI Turner, “Defense Perspectives on Law and Politics in International Criminal Trials” (Virginia Journal of International Law Vol 48:3 2007) J Peterson, “Unpacking Show Trials: Situating the Trial of Saddam Hussein,” (Havard International Law Journal Vol 4) KJ Heller, A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal (HeinOnline 2006) 262.T E Ricks Fiasco, The American Military Adventure In Iraq. (Penguin 2006) KJ Heller2, “Why the Execution of Saddam Hussein was Illegal” (Case Western University Law School 2007) MP Scharf, Foreword: Lessons From the Saddam Trial (39 Case, W Res. J. Intl. HeinOnline 2006-2008) Working Group on Arbitrary Detention, Opinion no. 31/2006, “Concerning: Saddam Hussein Al-Takriti” (Commission on Human Rights 2005) Read More