The International Center for Transitional Justice on Saddam Hussein Trial Verdict

Iraq Tribunal Issues Verdict in First Hussein Trial

Shortcomings Must Be Corrected in Appeals Process

BAGHDAD and NEW YORK, November 5, 2006—Today’s verdict issued by the Iraqi High Tribunal (IHT) was a significant but flawed step in Iraq’s search for justice, said the International Center for Transitional Justice (ICTJ). Because the trial fell short of fairness standards and in other crucial areas, a thorough appeals process is essential. The Tribunal should consider referring the Dujail case back for retrial to ensure that justice is realized.

The Dujail trial is an important precedent for Iraqis and the Middle East and North Africa region. It is rare for domestic tribunals to try leaders who perpetrated massive violations of human rights in the immediate aftermath of their rule. Yet the Tribunal has been dogged by repeated political interference, including the removal of several judges, gaps in the evidence, and breaches of fair trial standards. If the trials are to make a long-term contribution to rebuilding the rule of law in Iraq, it is vital that the Tribunal correct the flaws of the Dujail trial before proceeding with larger cases.

"The Dujail trial has been an ambitious but deeply troubled process,” said Miranda Sissons, head of the ICTJ’s Iraq program and one of its trial monitors. “We salute the courage and commitment of the trial’s participants, but the victims deserve a verdict that will stand the test of time. We’re concerned that flaws in the trial process will jeopardize much of the trial’s impact. It is vital that these shortcomings be addressed on appeal.”

Today’s verdicts were delivered in a 40-minute session that gave little indication of the judgment’s detail and reasoning. Former President Saddam Hussein and his former chief of intelligence, Barzan al-Tikriti, were found guilty of willful killing, forcible deportation, and torture. The two were sentenced to death and two terms of 10 years’ imprisonment each. Former President of the Revolutionary Court, Awwad Hamd al-Bandar, was found guilty of willful killing and sentenced to death. Former vice president and head of the army, Taha Yasin Ramadan, was found guilty of willful killing, deportation, torture, and other inhumane acts. He was sentenced to life imprisonment, as well as three other terms of imprisonment ranging from seven to ten years. Former Ba‘ath party officials, Abd Allah al-Ruwaid and Ali Dayih Ali, were both found guilty of willful killing and sentenced to 15 years’ imprisonment; former senior Ba‘ath party leader, Mizher al-Ruwaid, was sentenced to 15 years’ imprisonment for willful killing and seven years’ imprisonment for torture. All of these defendants were found guilty of these crimes as crimes against humanity. Charges against Muhammad Azzawi Ali, a former Ba‘ath party member from Dujail, were dismissed for lack of evidence.

Individuals sentenced to more than one penalty will serve only the most severe. No defendants were found guilty of the crime of enforced disappearances. The ICTJ will analyze the judgement in greater detail when it becomes available and will issue a more substantive analysis thereafter.
The November 5th judgment is not the final step in the Dujail trial. The case will go to cassation, a type of appeal. The appeal may be made on the grounds of errors of law, procedure, or fact. In cases where a sentence of death or life imprisonment is given, under the Iraqi Code of Criminal Procedure, the appeal process occurs automatically and the file is passed to the Cassation Chamber within 10 days of the judgment. Otherwise, individuals can lodge appeals within 30 days. The Cassation Chamber may reverse, revise, or affirm the original judgment of the Trial Chamber, and its judgment is final. Under the Tribunal Statute, sentences must be carried out within 30 days of the final judgment, subject to endorsement by the Iraqi President. The ICTJ opposes the application of the death penalty not just as a matter of principle, but also because it renders all mistakes made during the trial irreversible, as well as deprives victims of other crimes of access to justice.

Trials of large-scale human rights violations can do more than just punish past and deter future international crimes. In particular, tribunals should serve to acknowledge the centrality of law and the independence of the judiciary; uncover the full extent of system crimes; demonstrate and protect standards of fairness; restore victims’ dignity; and help build effective criminal justice institutions.

Regrettably, due to a variety of challenges, the Iraqi Tribunal has so far fallen short of fulfilling these goals:

First, the most serious external challenge faced by the Tribunal was that of political interference, both from the Higher National Commission for De-Ba‘athification and from Iraqi political leaders. The removal of judges and other Tribunal officials on political grounds cast doubt on the Tribunal’s independence, and put pressure on the judges’ ability to be impartial.

Second, the requirements of crimes against humanity were not adequately argued during the course of the trial, nor were the respective roles of the regime’s institutions in committing the crimes demonstrated clearly. Both of these shortcomings resulted in gaps in the evidence.

Third, the Tribunal failed to meet minimum fair trial guarantees, including: adequately specifying the charges; ensuring the right to confront witnesses; and providing equal opportunities for the prosecution and defense to gather and present their evidence.

If these objectives are met, the trials can still have enormous impact on building the rule of law in Iraq. The ICTJ believes that the Tribunal’s appeals process should take into account all of the substantive and procedural errors made during the investigative and trial phases, and that the Tribunal should consider the possibility of referring the case back for retrial, if appropriate. A retrial may be the most desirable remedy in this situation as it would allow the Chamber to seek to correct the procedural flaws as well as the evidentiary gaps—the trial’s two major deficiencies.
“A true measure of a fair and effective court is its ability to correct its own mistakes,” said Sissons. “If the Tribunal properly seizes the appeals process to ensure that earlier errors are corrected, it will strengthen its long-term credibility and the rule of law in Iraq. Iraqis have much to gain from fair trials, but also have much to lose should the Tribunal fail to improve.”

Background on the Dujail Trial

The alleged facts of the Dujail trial deal with a retributive attack against the population of al-Dujail, a small village north of Baghdad, where local residents allegedly mounted an assassination attempt on the motorcade of former President Saddam Hussein on July 8, 1982. In the days following, hundreds of residents were detained in inhumane conditions and tortured. Of the detainees, nearly 100 men were referred to the Revolutionary Court, given death sentences, and executed. Some 46 others who had also been sentenced had already died under torture. Hundreds of their relatives, including elderly men, women, and children, were banished to a camp in the desert. While in exile, their houses were confiscated, orchards razed, and property destroyed.

The Tribunal tried eight defendants in the Dujail trial, ranging in levels of seniority. The high-ranking defendants included former President Saddam Hussein; his half-brother and former chief of the intelligence service (the mukhabarat) Barzan al-Tikriti; former Deputy Prime Minister, and later Vice President and head of the army, Taha Yasin Ramadan; and President of the Revolutionary Court Awwad Hamd al-Bandar. On the other end of the spectrum were medium- to low-ranking local Ba'ath party members, including Abd Allah al-Ruwaid and Mizher al-Ruwaid, senior Ba'ath party officials in Dujail, and Ali Dayih Ali and Mohammed Azzawi Ali, both party officials in Dujail. The defendants were charged with crimes against humanity, including murder, deportation, imprisonment, torture, disappearances, and “other inhumane acts”.

Apart from proving these underlying offences, crimes against humanity also require proof of a widespread or systematic attack on a civilian population and that defendants must have known that they were acting in that context. Under Article 406 of Iraq’s penal code, the crime of murder is punishable by death.

Additional Resources
Publication: "And Now From the Green Zone…," Ethics & International Affairs, Winter 2006.
ICTJ briefing paper: "The Creation and First Trials before the Supreme Iraqi Criminal Tribunal," November 2005.
The Tribunal Statute of October 18, 2005 (English, ICTJ translation) (Arabic)
The Tribunal's Rules of Procedure and Evidence of October 18, 2005 (English, ICTJ translation) (Arabic)
For more information, go to the ICTJ's Iraq page

About the ICTJ
The International Center for Transitional Justice (ICTJ) assists countries pursuing accountability for past mass atrocity or human rights abuse. The Center works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved.

In order to promote justice, peace, and reconciliation, government officials and nongovernmental advocates are likely to consider a variety of transitional justice approaches including both judicial and non-judicial responses to human rights crimes. The ICTJ assists in the development of integrated, comprehensive, and localized approaches to transitional justice comprising five key elements: prosecuting perpetrators, documenting and acknowledging violations through non-judicial means such as truth commissions, reforming abusive institutions, providing reparations to victims, and facilitating reconciliation processes.

The Center is committed to building local capacity and generally strengthening the emerging field of transitional justice, and works closely with organizations and experts around the world to do so. By working in the field through local languages, the ICTJ provides comparative information, legal and policy analysis, documentation, and strategic research to justice and truth-seeking institutions, nongovernmental organizations, governments and others.