Coming in the midst of the vote count for Iraq’s constitutional referendum, Iraq faces another major step in building Iraqi rule of law as the Iraqi Special Tribunal (IST) on Oct. 19, 2005, begins the first trial of former Iraqi President Saddam Hussein Al-Majeed.

In this instance, Saddam stands accused of murder, torture, and forced expulsions in connection with the deaths of 148 Iraqis from the town of Dujail, 35 miles north of Baghdad, killed in reprisals following a 1982 assassination attempt by a handful of anti-Saddam militants. If proved guilty, Saddam and seven co-defendants could be hanged. The co-defendants include former Iraqi Vice President Taha Yassin Ramadan and Saddam’s half-brother and former security chief Barzan al-Takriti. All eight accused have pled not guilty.

The IST was established under The Statute of the Iraqi Special Tribunal to address war crimes, crimes against humanity, acts of genocide, and violations of certain other Iraqi laws committed between July 17, 1968, and May 1, 2003. (July 17, 1968, was the beginning of the second and most recent reign of the Ba’athists in Iraq, with Saddam becoming leader in 1979.) The IST is to focus on acts committed by Iraqi nationals or Iraqi residents, and committed within Iraq “or elsewhere,” explicitly including crimes committed in connection with Iraq’s wars against Iran and Kuwait.

The Statute of the Iraqi Special Tribunal became effective Dec. 10, 2003, during which time Iraq was ruled by the Coalition Provisional Authority. It predates Iraq’s March 8, 2004, interim constitution and the June 28, 2004, transfer of authority to the Iraqi Governing Council, which served as an interim government prior to the formation of the Iraqi National Assembly after elections in early 2005. The Iraqi Governing Council signed the Statute, which also references the Iraqi Governing Council, and any successor government, as the appointing authority for IST judges. The Statute predates Iraq’s March 8, 2004, interim constitution, the June 28, 2004, transfer of authority to the Iraqi Governing Council, or the election of the interim National Assembly January 30, 2005. Defense counsel apparently are raising, or plan to raise, questions over the IST’s having been created by an occupying power.

In Saddam’s first day of trial, Saddam jostled with his guards, declared himself to be the president of Iraq, refused to recognize the authority of the court, but nevertheless entered his plea of not guilty.

The chief judge on the five-judge panel hearing the case has adjourned the trial until Nov. 28, 2005. While defense counsel requested more time to prepare, the chief judge reportedly informed Reuters that adjournment was due to the fact that 30 to 40 witnesses, including relatives of victims, had been too frightened to show up to testify.

Because of security concerns, even the identity of IST judges has been kept secret, although the chief judge, a Kurdish jurist named Rizgar Mohammed Amin, has been named and had his face shown on televised proceedings of the trial. The court itself is located inside Baghdad’s heavily fortified Green Zone

In separate counts, Saddam also stands charged over the deaths of 5,000 Kurdish civilians in a 1988 chemical attack on Halabja, and the deaths of thousands of Kurdish and Shi’ite civilians following the first Gulf War. He also is under investigation for additional possible prosecutions, such as over the invasion of Kuwait. And on Oct. 18, 2005, just a day before the start of Saddam’s Dujail-related trial, Iran forwarded to the IST a list of crimes Iran is suggesting Saddam be charged with involving Iranian victims, such as the use of chemical weapons against Iranian targets.

However, prosecutors reportedly are pursuing the Dujail case first in the hope that the case will be easiest to prove. Saddam reputedly avoided setting up a strong evidentiary trail by giving vague orders and avoiding putting orders in writing.

Several important themes emerge from the start of the Saddam prosecutions:

• the need to build a strong sense of rule of law in a country previously ruled by totalitarianism, with this first trial coming at the same time as the constitutional referendum
• the importance of justice following the rule of law and not simply being vengeful or having the outcome of a procedure prejudged
• the need to see justice done over such crimes as are proven to have occurred and for which the various defendants can be proven to be culpable
• whether differences emerge over the suitable nature of punishment, such as differences over the use of the death penalty
• whether loyalty to Saddam has contributed to passions fueling the insurgency, and whether his trial and punishment will impact the insurgency
• whether there is a global impact of bringing perpetrators of crimes against humanity to justice
• the fact that humanitarian intervention, and the atrocious nature of the Saddam regime, were advanced as alternative political, if not legal bases, for the decision by the United States to invade

Of course, with respect to the last point, observers of Iraq will be quick to note that even the motive of purely humanitarian intervention could not simply have been measured by removing Saddam and bringing him to justice, but by the degree of success with which Iraq is assisted in establishing itself as a peaceful, secure, sustainable democracy with respect for human rights and rule of law.

Sources and further reading:

“Background Note: Iraq,” U.S. State Department, August 2005, http://www.state.gov/r/pa/ei/bgn/6804.htm

BBC, audio news updates and related programming, available through http://www.bbc.co.uk/worldservice/

Luke Baker and Andrew Quinn, “Defiant Saddam pleads not guilty, trial adjourned,” Reuters, Oct. 19, 2005, http://today.reuters.com/news/NewsArticle.aspx?type=topNews&storyID=
2005-10-19T172158Z_01_ROB845782_RTRUKOC_0_US-
IRAQ-SADDAM.xml

Luke Baker and Andrew Quinn, “Saddam lawyers to challenge trial,” Reuters, Oct. 18, 2005, http://abcnews.go.com/US/print?id=1226466

“Dujail victims await Saddam trial,” BBC, Oct. 17, 2005 http://news.bbc.co.uk/1/hi/world/middle_east/4350104.stm

“FACTBOX-Criminal cases Saddam Hussein could face,” Reuters, Oct. 18, 2005, http://today.reuters.com/news/NewsArticle.aspx?type=
topNews&storyID=2005-10-18T143416Z_01_
ROB852304_RTRUKOT_0_TEXT0.xml&related=true

“Iran sends charges against Saddam to Iraqi court,” Reuters, Oct. 18, 2005, http://today.reuters.com/news/NewsArticle.aspx?type
=topNews&storyID=2005-10-18T174700Z_01_
BAU863993_RTRUKOT_0_TEXT0.xml&related=true

“Iran sends Saddam charges to Iraq,” BBC, Oct. 18, 2005 http://news.bbc.co.uk/1/hi/world/middle_east/4353728.stm

Iraqi Special Tribunal home page (English): http://www.iraq-ist.org/en/home.htm

“Q&A: Putting Saddam on trial,” BBC, Oct. 14, 2005 http://news.bbc.co.uk/1/hi/world/middle_east/3850989.stm

“Sharing of Evidence and Notification of Trial Date,” Iraqi Special Tribunal news release, Oct. 3, 2005, http://www.iraq-ist.org/en/press/releases/0024e.htm

“The Statute of the Iraqi Special Tribunal,” text of Iraqi law, http://www.iraq-ist.org/en/about/statute.htm

Voice of America, audio news updates, available through http://www.voanews.com/english/.

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