The Trial of Saddam Hussein

THE TRIALS OF SADDAM HUSSEIN

Naama Haviv, Clark University

The first trial of former Iraqi leader Saddam Hussein for crimes committed in the town of Dujail led to a sentence of death by hanging (Nov. 5) which will be automatically appealed and delayed. Hussein stood accused of ordering the deaths of 148 Shi��a Muslims in the town of Dujail after an assassination attempt on his life there in 1982. Though this case heard testimony portraying killings, torture, and collective punishment, it has been widely considered to be one of Hussein��s more ��minor�� crimes. International human rights organizations and many Iraqis criticized the procedures and legitimacy of the court as well as the death sentence.

Prosecutors are now preparing charges of higher crimes against Hussein and his accomplices for their roles in the Anfal (��spoils of war��) campaign against Kurds in 1988. Since August 2006, Hussein and his cousin, Ali Hassan al-Majid, known as ��Chemical Ali�� for his part in the gas attacks against the Kurdish population of northern Iraq, have added an even more severe charge to their rosters: genocide. Hussein, al-Majid, and five other co-defendants also stand accused of crimes against humanity and war crimes for their actions during the Anfal campaign.

Human rights organizations (Amnesty International and Human Rights Watch) estimate that the eight-stage Anfal campaign cost the lives of 50,000-100,000 civilians in the almost entirely rural region of Kurdistan between late February and early September 1988. The campaign, headed by al-Majid, used a combination of ground offensives, aerial bombing, mass deportation and chemical warfare against Kurdish civilians who remained on traditional lands zoned as ��prohibited�� by Baghdad. Hussein��s defense team is expected to argue that the Anfal campaign was a part of a legitimate counter-insurgency campaign against Kurdish militia, known as pershmerga, who were accused of assisting Iran during the Iran-Iraq war. Scholars have argued, however, that the Anfal campaign targeted civilians for an Arabization campaign in oil-rich, geographically strategic areas �� thousands of villages were destroyed, tens of thousands of civilians were killed, and hundreds of thousands were forcibly displaced.

The controversies plaguing the Anfal case parallel those that riddled the Dujail case. Hussein himself has generated a good deal of uproar, as he has appeared to use both his trials as pulpits from which to address the Iraqi people, and has been accused of being generally disruptive during the proceedings. During the Dujail trial, Chief Justice Rauf Rashid Abd al-Rahman responded to a speech made by Hussein �� which had little to do with the charges levied against him �� by closing the proceedings to video and audio coverage and thus to the public eye. Current Chief Justice for the Anfal trial, Mohammad al-Khalifa, has followed this harder line against Hussein, ordering him out of the courtroom three times in just one week of proceedings.

Others have been concerned about the lack of security for the defense team. Three defense attorneys in the Dujail case were assassinated, and another fled Iraq after being injured in an attack. Attacks during the Dujail case and insecurity in Iraq have severely limited the defense team��s ability to convince witnesses to testify or even investigate evidence mounted by the prosecution. Significantly, however, the defense team for the Dujail case may find itself under more political attack during the Anfal trial �� Chief Justice Abdullah al-Amiri, accused of being biased towards Hussein by the Iraqi government, was replaced under much controversy by Mohammad al-Khalifa in late September 2006. Hussein was ordered out of court after refusing to recognize him as Chief Justice, and his lawyers boycotted the proceedings in protest. Since replacing Chief Justice al-Amiri, the IST has come under even more fire from international organizations for allowing the Iraqi government to interfere with its proceedings.

The chief concern in both cases has been the legality of the tribunal; critics have argued that as the IST was established before sovereignty was handed back to Iraq by the US, it was essentially established by an occupying force. Hussein��s defense counsels opened the Anfal trial by claiming the tribunal��s illegality. The petition by chief defense lawyer Khalil al-Dulaimi that the trial was illegal, however, was dismissed by the panel of five judges. Particularly after the replacement of Chief Judge al-Amiri, human rights organizations worldwide have questioned the tribunal��s ability to initiate fair proceedings. Significantly, under the IST statutes Hussein��s guilt �� or that of any other defendant �� would not have to be proven ��beyond a reasonable doubt,�� as has been expected in other international trials. Instead, the tribunal only has to find that it is ��satisfied�� of guilt �� a vague notion at best.

In accusing Hussein of genocide, the prosecution must now argue an extremely nuanced case in order to convict Hussein of individual criminal responsibility.

Significantly, the prosecution will have to show that Kurds in the northern region of Iraq were targeted specifically because they were Kurds �� a selection based on ethnicity, not on politics. As yet, the prosecution has focused its case on displaying a parade of witnesses who enter evidence of gassings, forced displacement, and murder. To prove genocide, however, the prosecution will need to show more than vast numbers of victims; there is indeed no quantitative threshold for genocide. Prosecutors will need to prove that the Anfal campaign was the culmination of a long-standing mission by the Iraqi government to Arabize traditional Kurdish lands and that the Iraqi government had long considered the Kurdish minority a threat on land so strategically placed along the Iranian border. They will need to show that Kurdish women, children, and elderly were indiscriminately attacked in ��prohibited zones�� whose borders matched traditional Kurdish regions �� regardless of their political affiliation.

Based on its visible shortcomings during the Dujail case, international observers have raised significant doubts about the IST��s ability to try a case of genocide fairly. Certainly the standards of guilt necessary for conviction have left many legal scholars reeling. Noting that this may be the first opportunity the world has seen to render a verdict against a Head of State in a case of genocide, then, the international community must question: will Saddam Hussein��s trial move us forward? Will it help us, or hurt us, in our attempts to define a system of international criminal justice? As we wait for the prosecution��s case to unfold, and speculate over the defense, it may be painful to admit: time will tell.