Saddam Hussein was convicted of crimes against humanity and sentenced to death by the Iraqi Special Tribunal on 5 November 2006, but the verdict continues to generate intense controversy. A damning Human Rights Watch report on the deficiencies in the conduct of the trial, released on 20 November, is the latest indicator of widespread unease.
The Iraqi court's handling of the trial itself was not without some achievements, but there remain several grounds for questioning the tribunal and the verdict. We still don't know how the verdict on the case - which focused on the killing of 148 people in the predominantly Shi'a village of Dujail in July 1982 - was reached. More than two weeks after the former dictator was told he would face execution by hanging, no written judgment has been produced.
Viewed from one angle, the absence of a detailed statement explaining the grounds for the court's decision makes it impossible for the global community of observers who have followed this much-heralded trial to pass judgment in turn on the tribunal. At the same time, the fact that a sentence of such gravity could be pronounced in such a significant case, while the legal justification behind it was not yet complete, only compounds the doubts that already surrounded the trial.
Anthony Dworkin is the executive director of the Crimes of War Project, a collaboration of journalists, lawyers and scholars dedicated to raising public awareness of the laws of war and their application to situations of conflict. His writing has been published in Prospect, the Times Literary Supplement, the New Statesman and the Boston Globe
Also by Anthony Dworkin in openDemocracy:
"The trial of Milosevic: global law or war?" (13 February 2002)
"The trials of global justice"
(15 June 2005)
"The Hague tribunal after Milosevic"
(14 March 2006)
A tribunal's politics
The verdict in Saddam Hussein's first trial (another, on much more serious charges relating to the Anfal campaign of slaughter against the Kurds in 1988, continues) has been greeted by much criticism of the tribunal, some justified and some less so. One area where the attacks on the court have seemed gratuitous is over Saddam's courtroom theatrics. The Iraqi tribunal can hardly be held responsible for Saddam's grandstanding when cases from Slobodan Milosevic's before the showcase international tribunal for the former Yugoslavia to Zacarias Moussaoui's within the American domestic court system have shown how difficult it can be to try an obstreperous defendant who denies the court's legitimacy.
On the whole, the Iraqi court's handling of the trial itself seems to have been at least adequate. The testimony of witnesses, above all, provided powerful and plausible accounts of the torture of townspeople from Dujail, site of the alleged crimes against humanity with which Saddam was charged. Some of the documentary evidence submitted, notably an execution order signed by Saddam himself, also helped establish a record of how the killings at the centre of the indictment took place.
However, human-rights organisations monitoring the trial charged that the prosecutor was allowed to admit some evidence without first disclosing it to the defence, and also said there was no sign that the investigative judge had tried to find exculpatory evidence, as he was required to do. The International Center for Transitional Justice (ICTJ), which has (along with Human Rights Watch) produced the most detailed and fair-minded report on the proceedings to appear so far, said that the Dujail trial "was a significant but flawed step in the search for Iraqi justice."
The center's report acknowledged that the court's judges "courageously attempted to deliver justice at a new and ambitious standard for Iraq", but found their efforts undermined by breaches of fair trial standards and some apparent gaps in the prosecution's efforts to prove that defendants were criminally liable for the acts they were charged with.
By far the most serious problems with the trial involved the persistent interference with the court by Iraq's political authorities. The first presiding judge in the Dujail trial resigned after senior politicians complained that he was not running the process with a firm enough hand. The minister of justice, Abdel Hussein Shandal, had said the court's judges were "incompetent" for failing to apply courtroom procedures. The man nominated as a replacement presiding judge was blocked by the country's de-Ba'athification committee, though he was allowed to remain as a judge at the tribunal in what was said to be a political deal. Not long ago, the presiding judge in the concurrent Anfal trial, Abdullah al-Amiri, was removed after his remark to Saddam Hussein that he had not been a dictator caused political and public uproar.
This background of overt political pressure on the business of the court represents, in the words of Sonya Sceats of the international-law programme at Chatham House in London, only "the tip of the iceberg in terms of the political interference that has been going on" behind the scenes. It makes it easy to believe that the verdict was announced before the final decision had been written because a further delay would have been harshly criticised by Iraq's Shi'a politicians. There were even rumours - though apparently without evidence to substantiate them - that the court was under pressure to deliver the verdict before America's mid-term elections, which took place on 7 November.
Also in openDemocracy on justice after genocide:
Geoffrey Bindman, Juan Garces & Isabel Hilton, "Justice in the world's light" (15 June 2001)
Victor Peskin, "After Zoran Djindjic: the future of international criminal justice"
(28 March 2003)
Hanny Megally & Veerle Opgenhaffen, "Saddam's trial: the needs of justice"
(19 October 2005)
Robert Cawston, "Nuremberg and the legacy of law"
(21 November 2005)
William Schabas, "The enigma of the International Criminal Court's success"
(17 February 2006)
John Sloboda, "Sparing Saddam: beyond victor's justice"
(14 November 2006)
A country's travails
The Iraqi tribunal has been undermined by the wider circumstances in which its trials are taking place. A country so fractured between its different segments that it is effectively engaged in civil war; an insecure prime minister whose hold on power is dependent on Shi'a political movements; a society where notions of judicial independence are not well rooted; a court case holding the hated former dictator who symbolised Sunni ascendancy to account for a crime against a village with a large Shi'a community: this is hardly the background against which any tribunal is likely to be able to adhere to an ideal of impartial justice.
The direct impact of these circumstances was felt inside the court, through the killing of three defence lawyers and one judge. In addition, the initial establishment of the tribunal under American occupation meant that it carried an inevitable taint of illegitimacy in the eyes of a sizeable number of Iraqis.
In retrospect it seems clear that this trial was held at the wrong time in the wrong place. Despite the genuine advantages of holding the trial in Baghdad, to bring it closer to the society from which Saddam Hussein's victims had come, it is now obvious that the pressures on the court were simply too great. But to consider the ideal forum for Saddam's trial in the abstract - to weigh impartially the pros and cons of different judicial approaches from the disembodied perspective of international justice - is to miss the actual context in which the decision was made.
The Iraqi political leaders involved in discussing the question of war-crimes trials with American and British representatives were adamant that the alleged "regime criminals" should be held to account in Iraq, with the death penalty as a possible sanction. The question then was not simply, "Would it be better for Saddam Hussein and his henchmen to be tried outside Iraq?" but more importantly, "Would it be right to override the Iraqis' own strongly-expressed desire to try their own former dictator, and impose an international solution by international fiat?"
The question is much less straightforward than many critics of the tribunal appreciate. It goes to the heart of unresolved questions about the legitimacy of what the Americans and their allies were doing in Iraq, and how far an occupying power should answer to the occupied country's sovereign people - who may of course have many conflicting interests - or to some abstract ideal like justice.
In the end, there is no getting away from the political questions surrounding the tribunal. It is hard to see how the Saddam trial could have succeeded, given that the political enterprise on which it was meant to set a kind of judicial endorsement had itself foundered so disastrously.