FAIR TRIAL OR SHOW TRIAL? EXAMINING THE TRIAL OF SADDAM HUSSEIN
The Dujail trial was the first case to be heard in front of the Iraqi Special Tribunal and proved to be an extremely contentious trial both nationally and internationally. Various academics have debated at length whether or not the Dujail trial was fair however few if any have in-fact assessed whether this trial was a show trial, as was feared prior to its commencement. Many academics aimed to answer the question ‘Was the trial of Saddam Hussein a fair trial?’ With the majority agreeing it was not however, this debate lacks a substantive question. Perhaps the right question to ask is ‘Was the trial of Saddam Hussein a show trial?’ If the answer is ‘yes’ then there is no need to ask whether it was a fair trial, as show trials inherently curtail the rights of procedural fairness of the accused. The significance of this thesis is that it aims to bring this substantive question into the contentious debate surrounding the Dujail trial. It will analyse the characteristics that are commonly used to identify show trials. To do so it will compare the Nuremberg trials, widely criticised as ‘show trials’ with the Moscow trial of Slobodan Milošević, commonly described as a ‘fair trial’. It will then examine the similarities between those trials and the Dujail trial to assess whether show trial characteristics are present in the Dujail trial. Finally, the conclusion of this thesis considers the purpose of a show trial in a transitional justice society like Iraq.
TABLE OF CONTENTS
- CHARACTERISTICS OF A SHOW TRIAL
- SHOW TRIAL VS. FAIR TRIAL
- WAS THE DUJAIL TRIAL A SHOW TRIAL?
- WHAT IS THE PURPOSE OF A SHOW TRIAL?
- THE DUJAIL TRIAL: THE FIRST AND LAST STEP IN IRAQ’S TRANSITIONAL JUSTICE PROCESS
On 5 November 2006, Saddam Hussein and his seven co-defendants stood in front of the judges of the former Iraqi Special Tribunal (IST) to hear the verdict of the Dujail trial.
This was the first case to be heard in front of the IST and signified the first step towards national reconciliation in Iraq.
Thus it attracted widespread attention and debate both nationally and internationally.
The alleged facts of this case involve an attack against the people of Dujail, a small village north of Baghdad.
In 1982, residents of Dujail attempted to assassinate the then-President Saddam Hussein during his visit to Dujail.
In retaliation for this, several hundreds of residents were killed; other hundreds were detained and tortured or sentenced to death by the Revolutionary Court; and elderly men, women, and children were exiled to a camp in a remote part of Southern Iraq.
In addition, agricultural land and homes were confiscated by the government or destroyed.
The IST charged the seven defendants with crimes against humanity, including premeditated murder, forcible expulsion of the population, false imprisonment, torture, disappearances and destruction and confiscation of land.
The principle defendants included Saddam Hussein, Barazan Ibrahim Hassan Al-Takriti, half-brother of the former president Saddam Hussein and Director of Iraqi Intelligence; Taha Yassin Ramadan, deputy Prime-Minister; Awad al-Bandar al-Saadoun, the chief judge of the revolutionary court; and Abdullah Kazem Roueid and his son Muzheir Roueid who were both influential members of the Ba’ath party.
After a trial that lasted more than a year, the seven defendants were sentenced to death by hanging.
This verdict attracted widespread criticism from organisations such as Amnesty International, Human Rights Watch and the International Transitional Justice Centre (ITJC) who condemned the trial as one that failed to uphold international standards of procedural fairness.
Prior to the commencement of the Dujail trial, commentators and academics around the world acknowledged the significance this trial would have on Iraqi’s future as it would finally bring justice to the people of Iraqi who suffered greatly under Hussein’s dictatorial regime.
They also however warned that Hussein’s trial should not be turned into a ‘show trial’.
They emphasised that it is crucial that this trial is seen as fair and legitimate in the eyes of the Iraqi people and the world and to achieve this, it must be viewed as a fair trial and not a show trial.
According to Jeremy Peterson, ‘A trial that is considered legitimate—a trial generally viewed as fair—is more likely to succeed in teaching lessons. Thus, legitimacy can have an impact on the effectiveness of a show trial’.
A Human Rights Watch official expressed concern that the Dujail trial would turn into a ‘political show trial’ because of the US’s dominant role in the prosecution of Hussein. Salem Chalabi
, the former head of the IST, shared the same concern. Prior to the trial he stated that, ‘Show trials followed by speedy executions may help the interim government politically in the short term but will be counterproductive for the development of democracy and the rule of law in Iraq in the long term’.
Commentators such as The Economist
shared the same sentiment and wrote that ‘with the eyes of the world on it’ this trial will be an ‘exemplary trial, and in that sense a show trial’.
But what is a ‘show trial’? And how does it differ from a ‘fair trial’?
Various academics have debated at length whether or not the Dujail trial was fair however few if any have in-fact assessed whether this trial was a show trial, as was feared prior its commencement. Many academics aimed to answer the question ‘Was the trial of Saddam Hussein a fair trial?’ With the majority agreeing it was not however, this debate lacks a substantive question. Perhaps the right question to ask is ‘Was the trial of Saddam Hussein a show trial?’ If the answer is ‘yes’ then there is no need to ask whether it was a fair trial, as show trials inherently curtail the rights of procedural fairness of the accused.
Academics such as Bhuta, Simpson, Sissons and Bassin, as well as non-governmental organisations such as Amnesty International, Human Rights Watch and the International Centre for Transitional Justice, agree that the Dujail trial was not a fair trial. These academics and non-governmental organisations have condemned the way in which the accused were denied basic fair trial guarantees such as the right to examine and cross examine witnesses, the right to the presumption of innocence, the right to an independent and impartial tribunal, the right to be adequately informed of the charge laid against the accused, the right to be equal before the courts and the right to an adequate appeal.
Moreover, academics such as Gersh, Bassiouni, and Scharf have also criticised various flaws in the establishment of the Iraqi Special Tribunal, such as the establishment of the Tribunal under the US’s illegitimate authority as an occupying power in Iraq, which greatly undermined the legitimacy and credibility of Hussein’s trial.
Few academics along with the media have labelled the Dujail trial a show trial, arguing that because of the pre-determined verdict of guilt and the political interferences with the trial, it was a show trial.
While this is so, only one academic has assessed whether the Dujail trial was a show trial and this is Jeremy Peterson.
However, there are various gaps in this study. Peterson did not analyse the most criticised characteristics of the Dujail trial, which includes the accused’s right to challenge the prosecution’s case and the accused’s right to be properly informed of the charge laid against him/her in order to adequately prepare their defence. Although Peterson came to the conclusion that Dujail trial was a show trial, his analysis neglected to examine fundamental issues of the trial.
The significance of this thesis is that it aims to bring the substantive question, ‘Was the Dujail Trial a Show trial?’ into the contentious debate surrounding the Dujail trial by analysing the principal characteristics that are commonly used to identify show trials. To do this, it will compare the Nuremberg trials, widely criticised as ‘show trials’ with the Moscow trial of Slobodan Milošević, commonly described as a ‘fair trial’. It will then examine the similarities between those trials and the Dujail trial to assess whether show trial characteristics are present in the Dujail trial. Finally, the conclusion of this thesis considers the purpose of a show trial in a transitional justice society like Iraq.
- CHARACTERISTICS OF A SHOW TRIAL
Before venturing further, we must first answer the questions, what is a show trial? And how does it differ from a fair trial? A fair trial is a fair and public hearing where both parties in a dispute have an equal opportunity to present their case to an independent tribunal, in order to reach an unbiased verdict.
The concepts of ‘equality’ and ‘fairness’ can be traced back to the Magna Carta
, which significantly contributed to the common law origins of procedural fairness and due process rights.
The right to a fair trial was first introduced internationally in Article 10 of the Universal Declaration of Human Rights
In 1966, Article 14 of the International Covenant on Civil and Political Rights
introduced minimum fair trial guarantees which provided a more stringent safeguard to due process rights.
These fair trial guarantees include the right to a fair hearing by an independent and impartial tribunal, the right to the presumption of innocence, the right to appeal a judicial decision, the right to call and examine witnesses and the right to be equal before the courts.
These guarantees ‘are not primarily concerned with the outcome of judicial proceedings, but rather the process by which the outcome is achieved’.
The right to a fair trial is internationally recognised as a fundamental right that is not only enshrined in treaty law but also international customary law, thus is binding on all states.
For the purposes of this thesis, these fair trial guarantees will be the measuring stick for what is a ‘fair trial’.
In contrast to the internationally recognised definition of a fair trial, in the legal literature, there is no coherent or precise meaning or definition of the term ‘show trial’.
However academics agree that the two underlying characteristics of a show trial include, the notion of ‘victor’s justice’ where the trial is orchestrated to serve a political agenda in favour of the ‘victor’ who is bringing the accused to trial,
and the second is where characteristics of a fair trial are abandoned in order to secure a conviction against the accused.
According to Bill Wringe, the concept of victor’s justice is a complex one which gives rise to the argument that ‘perpetrators are not just being punished for the atrocities they have committed. They are also being punished for the “crime” of being on the losing side’ of a conflict.’
Gerry Simpson further explains this notion by using the term ‘victor’s justice’ to refer to circumstances where a show trial is held as a response to political or military success and is an attempt to seek ‘victor’s vengeance’ or revenge upon the enemy.
Thus the purpose of the show trial is to destroy or eliminate the enemy or opposition.
Simpson argues for show trials to achieve victor’s justice, established rule of law norms and due process rights must be abandoned to ensure the accused is convicted.
For this reason, ‘Show trials represent the most fantastic deformation of legal procedure’.
Its purpose is not the pursuit of justice, but rather juridical defeat in order to demonstrate political power or superiority.
Such trials are no more than a farce, which ‘dress the visceral impulse for revenge in the forms of legal procedure’.
Similarly, Hannah Arendt suggests that the point of the ‘show trial is the performance of a spectacle with pre-arranged results’.
This spectacle is arranged for a political purpose where the state has already determined the outcome of the trial and steps are taken to secure a conviction thus the presumption of innocence of the accused is lost and is replaced with a presumption of guilt.
In agreement, Elise Groulx Diggs claims ‘[A]ll trials must contain an element of risk—namely the risk that the accused may be freed. If this aspect is missing, what we have is a show trial’.
Awol K. Allo, argues that ‘Any procedural or substantive deviance or misapplication of due process rights might make a trial a show trial’.
This is because the legality and legitimacy of the trial are significantly undermined in the absence of due process rights.
Allo suggests that a misapplication of due process rights does not necessarily amount to a show trial but a mistrial, unless there is ‘an agenda to perform with consequences that go far beyond the courtroom’.
This agenda is a political one where ‘the courtroom is an irresistible strategic tool in the struggle for power’ and ‘the state prosecution is the party that usually gets to maneuver the devices of justice to suit its political or didactic goals’.
Thus even if a trial curtails the rights of the accused, it is not a show trial unless the notion of ‘victor’s justice’ is present.
- SHOW TRIAL VS. FAIR TRIAL
A The Nuremberg Trials
The Nuremberg trials tend to be criticised as ‘victors’ justice’ and ‘show trials’.
This is because of two strands of reasoning. The first is that the defendants of the trial were prosecuted and punished for crimes defined in the Nuremberg Charter, which was drafted by the victors at the conclusion of the war and the second is because the Nuremberg Tribunal functioned on the basis of limited procedural rules which violated the defendants’ right to a fair trial.
Although many academics have criticised the grave procedural flaws of this trial, the impact this trial has had on the development of international criminal law does not go unacknowledged.
1 Victor’s Justice
The concept of victor’s justice is one commonly associated with the Nuremberg trials.
This is because the nation victors of World War II, established the International Military Tribunal (IMT), appointed the judges for the IMT and drafted the Nuremberg Charter for the purpose of prosecuting the Nazi defendants.
Furthermore the law makers, prosecutors, and judges were all from the Allied nations. There were no judges or legal personnel from neutral states involved in the trial. Most shockingly, Major General Nikitchenko and Robert Falko, who were directly involved in the drafting of the Nuremberg Charter also sat as judges on the IMT.
Justice Jackson who was also in drafting the Charter also helped select the Nazi defendants to be prosecuted and later became the Chief United States prosecutor during the trial. These overlaps substantially compromise the judicial independence and impartiality of the IMT.
The Nuremberg trials have also been criticised as victor’s justice because no member of the allies faced criminal responsibility for the crimes they committed during the conflict.
In fact, defence was prohibited from presenting evidence that implicated the Allies in any war crimes, crimes against humanity or crimes against the peace. Thus, the same laws that applied to the ‘opposition’ or ‘enemy’ did not apply to the Allies, indicating that the victors were not interested in achieving ‘real justice’ but rather ‘victor’s justice’.
2 The obstruction of the right to a fair trial
Article 16 of the IMT charter provides a broad definition of the right to a fair trial to include the right to legal representation, the right to examine and cross examine witnesses, the right to present evidence in support of his or her defence and the right to be informed in detail of the relevant charges laid against an accused. Despite this safeguard in article 16, the IMT failed to adhere to these fair trial rules.
All the defendants were legally represented by counsel however they were denied the opportunity to adequately prepare their defence. The inability of the defence to access the necessary evidence to support and prepare for their defence is arguably one of the gravest breaches of the right to a fair trial in this case. Most concerning, the prosecution had access to the IMT's evidentiary archives, which was denied to the defence.
In addition, defence was not given or notified of evidence in the possession of the prosecution nor was the defence made aware of the existence of crucial documentation. When defence did request copies of documents from the prosecution, they had often ‘disappeared’, or were made available in insufficient quantities, incomplete, not translated, and days too late.
Furthermore, article 19 of the Charter provided that the Tribunal was not bound by strict rules of evidence. As a result, the tribunal allowed the prosecution to base most of its case on hearsay evidence.
The prosecution was also allowed introduce ex parte affidavits of persons who were available to testify at trial.
This meant that crucial evidence was presented in the defences’ absence without their ability to cross-examine this evidence. The IMT also allowed the prosecution the right to object to witnesses before questioning, however, the defence was denied the opportunity to do so.
As a result of these evidentiary leniencies, the defence at a significant disadvantage as the prosecution was afforded opportunities that were denied to the defence.
One of the most important fair trial guarantees is the right to appeal and review a decision to a higher appellant court or tribunal. The defendants of the Nuremberg were deprived of this right. In fact, article 26 of the Nuremberg Charter expressly stipulated that ‘neither the Court, nor its members, could be challenged by the prosecution or the defendants’.
Denying the defendants the right to challenge the trial errors that constituted a miscarriage of justice, has been considered one of the most ‘procedurally dubious’ elements of this trial.
B The Moscow trial of Slobodan Milošević
In 2002, Slobodan Milošević the former Serb leader became the first head of state ever to face trial before an international criminal tribunal known as the International Criminal Tribunal for the former Yugoslavia (ICTY).
This trial has been commonly referred to as a ‘fair trial’ because Milošević was prosecuted in front of an independent and impartial tribunal, which functioned on procedural rules that maintained the defendant’s right to a fair trial.
1 Victor’s Justice
In contrast to the Nuremberg Tribunal, the Yugoslavia Tribunal was not created by the parties involved in the conflict.
It was created by the United Nations (UN) Security Council, which is an independent party to the conflict. Furthermore, an impartial and neutral party, the General Assembly, also elected the judges of the Yugoslavia Tribunal.
Despite this, Milošević still challenged the legitimacy of the establishment of the Tribunal, arguing that the Security Counsel of the UN did not have the power to establish it.
The Tribunal ruled that the establishment was valid and legitimate under the Security Council's powers to take action to ‘restore international peace and security’.
2 The obstruction of the right to a fair trial
In addition to an impartial bench, Milošević was afforded his rights to a fair trial, rights in which the defendants of the Nuremberg trial did not receive.
Milošević was given the right to be properly and adequately legally represented however he refused this right and chose to represent himself.
Despite this, Milosevic was given an equal opportunity to call and cross-examine witnesses and he did so at length.
In fact, Milosevic's cross-examinations of prosecution witnesses were ‘twice the length of the prosecution's examinations’.
In 2004, the court ruled that it would impose a defence lawyer on Milošević after tests showed Milosevic was not fit to represent himself. The tribunal did so to ensure Milošević ill health did not hinder his right to adequately defend and represent himself.
Furthermore, where the defence at Nuremberg was precluded from having access to the Nuremberg Tribunal's evidentiary archives, Milošević was entitled to any exculpatory evidence in the possession of the prosecutor, and both the prosecution and the defense were bound to disclose all documents and witnesses prior to trial.
Most distinctively, unlike the Nuremberg Charter, The Statute of the Yugoslavia Tribunal allowed the defence and prosecution to appeal any decision made by the tribunal. This right is of the utmost importance as it ensures the right to judicial review of unfair decisions and rulings particularly where they violate the rights of the accused. The Yugoslavia Tribunal ensured it adhered to international standards of procedural fairness as it afforded Milošević the minimum guarantees of a fair trial.
- WAS THE DUJAIL TRIAL A SHOW TRIAL?
For a show trial to exist characteristics suggesting a heightened probability of conviction must be present, and the political context of the trial must be examined in order to establish whether the trial is being used to serve ‘victor’s justice rather than real justice’.
With regards to these indicia, this thesis aims to answer the question, ‘Was the Dujail trial a show trial?’
Like the Nuremberg trials where the occupying power or the victors of the conflict dominated the prosecution of the defendants, The Dujail trial was also dominated by the US’s prominent role in the prosecution of Hussein. In 2003, U.S. President George W. Bush and UK Prime Minister Tony Blair announced they would invade Iraqi ‘to disarm Iraq of weapons of mass destruction, to end Saddam Hussein's support for terrorism, and to free the Iraqi people.
The UN Security Council refused to endorse the US-UK invasion and occupation of Iraq arguing that there was no evidence suggesting Iraq had weapons of mass destruction.
Despite this, on March 20th
, the American-led invasion began, and in December 2003 Saddam Hussein was captured and categorised as a prisoner of war, thus making him eligible to stand trial for war crimes.
November 2006, Saddam was convicted of charges of crimes against humanity, war crimes and genocide by the Iraqi Special Tribunal (IST). The IST was set up by the Statute of the Iraqi Special Tribunal
, which was a statute issued by the Coalition Provisional Authority (CPA) and was then adopted by the Interim Iraqi Governing Council. The CPA was a US transitional government established in Iraq following its invasion. The Interim Iraqi Governing Council was a provisional Iraqi governing council which was established and served under the CPA. Like the Nuremberg trial, the IST statute was drafted and funded by the CPA who were the victors of the war or invasion of Iraq, for the sole purpose of prosecuting Hussein and the leaders of his regime. As a result of this characteristic, the Nuremberg trial was known as a trial of victor’s justice, and as the Dujail trial possesses this same characteristic, it too should receive this title.
Furthermore, the IST statute expressly stipulated that the Iraqi judges selected to sit on the IST where to be selected by the Interim Iraqi Governing Council. This is extremely problematic for the following reasons. The Interim Iraqi Governing Council had limited powers and derived its authority from the CPA whom appointed its members. The Council lacked considerable decision-making power because its legislative and administrative proposals were subject to CPA veto. Furthermore, the Statute of the Iraqi Special Tribunal
stipulated that the Council were to appoint the judges for the IST, again this was subject to veto from the CPA. In addition, the establishment of the IST was funded by the CPA and the Iraqi judges were assisted by U.S. advisors thus feeding the perception that the judges were ‘tainted, biased or the instruments of the US advisors to the Tribunal’.
With due consideration to the US’s dominant role in the prosecution of Hussein including the drafting of the Statute of the Iraqi Special Tribunal under the authority of the CPA, its funding which was also provided by the CPA, the appointment of the IST judges by the Interim Iraqi Governing Council, whose authority was derived from the occupying power essentially compromises the judicial independence and impartiality of the tribunal. Just like other dictators such as Milošević, who breached international law and were prosecuted by an international body, Hussein should have been afforded the same opportunity to be judged by an independent and impartial tribunal. David M. Gersh argues that ‘Saddam must sit before international as well as Iraqi judges. A trial conducted solely by Iraqis will never escape the allegation that it was a mere kangaroo court whose outcome was determined by Americans before Saddam was even arrested’. For these reasons, the IST can be viewed as nothing more than ‘victor’s justice at the hands of a puppet court of the occupying power’.
B The obstruction of the right to a fair trial
The most highly criticised aspect of the Dujail trial by academics and non-governmental organisations was IST’s failure to uphold international standards of procedural fairness. This is because it did not adhere to the minimum fair trial guarantees enshrined in article 14 of the International Covenant on Civil and Political Rights (1966), which Iraq is a signatory to. Many of the minimum fair trial guarantees found in article 14 were enshrined in article 20 of Statute of the Iraqi Special Tribunal
This includes the right to be equal before the tribunal, the presumption of innocence, the right to legal representation, the right to a public hearing, the right to adequate time and facilities for the preparation of a defence, the right to be informed promptly and in detail of the charges against the accused and the right to examine and cross examine witnesses. However, the IST rarely adhered to these provisions.
1The right to a fair hearing by an independent and impartial tribunal
The right to a fair hearing by an independent and impartial tribunal as per article 14 (1) of the ICCPR contains two components. The first is that the tribunal must be independent of the executive and the parties to a dispute. The second is that the judges must act without any personal bias towards either party.
As previously discussed, the US’s dominant role in the establishment of the IST and the Statute of the Iraqi Special Tribunal
significantly undermined the impartiality and judicial independence of the tribunal. Furthermore, before judges were appointed by the Interim Iraqi Governing Council, Iraq’s executive and judiciary underwent a de-ba’athification process where members and officials of the Ba'ath Party were removed from public office. For this reason, selecting qualified and impartial Iraqi judges to sit on the five-judge tribunal was a challenging task. Furthermore, the Iraqi judges appointed to the sit on the IST bench had no experience prosecuting cases subject to international criminal and humanitarian law. In fact, the Statute of the Iraqi Special Tribunal
was the first Iraqi law to criminalise war crimes, genocide and crimes against humanity. This lack of experience and qualification meant the Iraqi judges would greatly rely on the US advisors for direction and guidance thus tainting the judicial independence and impartiality of the IST.
Furthermore, Article 5 (f)(3) of the Tribunal Statute states that “The decision to disqualify the President shall be taken by the Governing Council or the Successor Government.” The possibility of misuse of this provision is of particular concern with regard to the President because he or she can be removed by a political body.
During the course of the trial, there were at least four changes of personnel in the five-judge tribunal. In January 2006, Chief Judge Rizgar Amir was forced to resign following an outcry of public criticism of his ‘lenient courtroom demeanour’. On the day of his resignation, he told reporters that, ‘[h]e had complaints from the government that he was being too soft in dealing with Saddam. They want things to go faster’. Then, in September 2006, Chief Judge Abdullah al-Amiri was officially removed after he declared that Mr. Hussein was ‘not a dictator’. Members of Parliament demanded that he be removed, arguing this comment proved he was weak, lenient and biased towards the defendants. In November 2006 Judge Saeed al-Hammashi was accused of being a former member of the Ba'th Party. He denied this charge and the case against him was dropped however he was still removed from the bench. The executive’s constant intervention not only shows a lack of judicial independence and impartiality but the constant change of judges greatly tainted the public’s perception of the judges and thus their perception of the legitimacy of the trial.
2 The Right to be Equal Before the Courts
The right to be equal before the courts is also outlined article 14 (1) of the ICCPR. This is commonly referred to as the equality of arms principle which ‘is a fundamental element of the right to fair trial principle and a scale through which the requisite procedural fairness in any criminal proceeding can be measured’. This includes the right to have adequate time for the preparation of the defence as per article 14 (3) (b) and the right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, as per article 14 (3) (e). These safeguards ensure the accused has a ‘reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent’. This principle was gravely violated in the Dujail trial.
The defence in the Dujail trial was placed at a significant disadvantage to the prosecution in various circumstances. The first is the lack of equal opportunity to question and cross examine witnesses. Throughout the Dujail trial, 28 complainants appeared in court, however, another 28 were deemed ‘unavailable’ and therefore their statements were read in court, thus preventing the defence from cross-examining those witnesses. This also meant the defence was unable to observe the witnesses’ demeanour and assess the credibility. Moreover, the identity of many of the complainants were only disclosed an hour in advance of their being called to the witness stand thus making it extremely difficult for the defence to adequately prepare for cross-examination. More concerning, these witnesses were never called for re-examination. Furthermore, the right to question witnesses is often exercised at the investigative phase in civil law systems where witnesses are deposed prior to the trial. However, the defence lawyers in the Dujail trial were not invited to attend the deposition sessions and thus had not had the opportunity to question those witnesses. Hence, the witnesses whose statements were read into the record were never, at any stage of the proceedings, questioned by the defence. The defence counsel repeatedly complained about these issues including requesting to re-call witnesses however these motions were essentially ignored. These troubling features meant the defendants were ultimately denied the full opportunity to contest evidence presented against them.
More troubling, the prosecution implemented the tactic of ‘trial by ambush’ as the prosecution failed to properly disclose incriminating documents later adduced as evidence in court. Often these documents were not disclosed to the defence until the day that the document was used in court by the prosecution and in some cases well after the close of the prosecution case. In most instances, disclosure was ineffective as one-third of the dossiers given to defence counsel prior to trial were illegible. Most concerning, the prosecution failed in their obligation to disclose exculpatory evidence that was in their custody as prescribed in the IST rules. On May 29, 2006, while questioning a defence witness, the prosecution showed in court documents issued by a Compensation Committee formed to compensate Dujail residents whose lands had been seized by the government. When giving his testimony in court witness Muhammad Zamam Abdul Razzak al-Saadoun, a former member of the Regional Command of the Ba’th Party claimed, ‘The compensations given by the government to the orchards’ owners, adding that this was not the result of personal vendetta directed against citizens for the attempt to assassinate the President; it was but rather an institutional operation organised in accordance with law and based on specific plans.’ In court defendant Taha Yassin indicated that the razing of Dujail’s orchards, was normal for the state to do, this is because ‘it is the state’s right to do such a thing as long as it is in the public interest or it is necessary to confiscate farms, a facility or a land with appropriate compensation’. Despite these testimonials, the documents issued by the Compensation Committee which were in the prosecution’s possession and which supported the defence case were never disclosed to the defendants.
3 The presumption of innocence
According to article 14 (2) of the ICCPR, everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to the law. The presumption of innocence is a safeguard of the criminal system that ensures the accused’s right to a fair hearing is maintained, and guilt of the accused is proven to a particular standard before he or she is convicted. The Human Rights Committee has stated that this principle constitutes a rule of jus cogens meaning it is a ‘peremptory norm of general international law…accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted’.
This intransgressible right was one that was deserted at the outset of the Dujail trial as senior Iraqi government officials and political leaders made public remarks assuming the guilt of the accused prior to the commencement of the trial and throughout the trial. These remarks gave the impression that a guilty verdict, sentencing, and execution were foregone conclusions. In January 2006 Adel Abdul Mahdi, the prominent leader of the Supreme Council for the Islamic Revolution in Iraq reportedly said that Saddam ‘deserves to be put to death without trial’. Similarly, Shi'a cleric Muqtada al-Sadr said ‘Saddam needs no trial and he must be treated as he treated the Iraqi people I demand his execution immediately’. On July 5, Prime Minister Nouri al-Maliki stated that ‘[Saddam Hussein’s] execution for the crimes he committed will come soon, just after the court ruling’. These comments undermined the presumption of innocence and shifted it to a presumption of guilt. Human Rights Watch argued that ‘While the trial of someone as notorious as Saddam Hussein will inevitably be accompanied by strong opinions and public discussion as to his guilt or otherwise, public authorities and in particular leading political figures are not relieved of their obligation to refrain from prejudging the outcome of the trial’. These remarks not only influenced the public, but also the judges who may have felt pressured to be ‘seen as dealing severely with the accused’ thus undermining the impartiality of the tribunal and the right to the presumption of innocence.
6Standard of proof
The ICCPR does not explicitly state that guilt must be proven beyond a reasonable doubt, however the U.N. Human Rights Committee has stated in its General Comment to Article 14(7) of the ICCPR that ‘No guilt can be presumed until the charge has been proved beyond reasonable doubt.’ Establishing a particular standard of proof is imperative to protect the accused from an unjust conviction. This is one of the IST’s greatest flaws. The IST rules do not specify a particular standard of proof. In the absence of a new standard of proof, the 1969 Iraqi Criminal Code standard of proof applies. This standard requires mere ‘satisfaction’ of the judges. This gives judges complete discretion to decide on the weight given to evidence. Furthermore, the mere ‘satisfaction’ of evidence is not a sufficient enough evidentiary standard when prosecuting war crimes, crimes against humanity and genocide. According to Jeremy Peterson, ‘The standard of proof can be indicative of a show trial. By tinkering with these elements of the trial…the prosecution may be able to exercise control over the outcome of the trial’. For this reason, it can be concluded that ‘the lack of a robust standard of proof may have substantially increased the likelihood of Mr. Hussein’s conviction’.
4 Right to be informed of the charge
Article 14(3)(a) of the ICCPR provides that the defendant has the right to be informed ‘promptly and in detail of the nature and cause of the charge against him’ in order to begin to adequately prepare his or her defence. Without this right, the defendant is unable to adequately defend the charge against him. The charging dossiers given to all seven of the defendants were identical. This is problematic because the roles in the commission of the crimes and modes of liability differed for each defendant as they differed in rank. This blanket charging process violated the defendants’ rights to be properly informed in detail of the charges against them.
Most astonishingly, a formal charging document was not presented to the defendants until the end of the prosecution’s case. More charges were added to the formal charging document including details concerning the particular role of the commission of the crimes by each of the defendant. However, because of this unexplained delay, the defendants did not have adequate notice of the charges against them during the presentation of the prosecution’s case. In addition to murder, forcible displacement, arbitrary detention, and torture, the charges of enforced disappearance and ‘other inhumane acts’ were added against Saddam Hussein. The defendants had no notice during the prosecution case that these charges would be added, and thus could not effectively address prosecution evidence that may have been relevant to disproving these allegations. The court required the defendants to open their defence case on the same day that the charging document was read out in court, effectively denying them any opportunity to revise or amend their defence in accordance with the newly added charges. Again, directly denying the defence the time to adequately prepare for its defence.
5 The right to adequately defend oneself with legal representation
As per article 14 (3) (c) Hussein’s right to adequately defend himself through the legal representation of his choosing was also impeded. Only one of Hussein’s two non-Iraqi lawyers, US Attorney Ramsey Clark had international criminal trial experience however the IST did not provide legal quality translation for the non-Arabic speaking lawyers and were reluctant to allow him to speak in court. In many instanced, the court declined to hear him because he did not speak Arabic. This along with the poor quality of translation meant that lawyers with the requisite experience were precluded from properly representing and defending the accused.
7 The Right to Appeal
The right to appeal or review a tribunal decision as prescribed under article 14(5) of the ICCPR is aimed at ‘correcting miscarriages of justice’. Part 3, Article 4 The Statute of the Iraqi Special Tribunal provides for the right to appeal any decision made by the IST 30 days after the decision is delivered. However, the IST made it extremely difficult for the defendants to appeal the IST’s decision as no written transcript was available during the trial on which to base an appeal. The trial chamber announced the verdicts and sentences in the Dujail case on 5 November 2006, but only released their reasoning for the decision on 22 November more than halfway through the 30-day appeal period. This gave the defence only 11 days to study the judgment before submitting their appeals. Once the defendants submitted their appeal to the Appeals Chamber, the chamber announced its final judgment just nine days later. The Appeals Chamber upheld the IST’s judgment yet the Appeals Chamber failed to provide reasoning any reasons for its verdict.
8 Nullum crimen sine lege and nulla poena sine lege
The two main principles of international criminal law include nullum crimen sine lege and nulla poena sine lege. Nullum crimen sine lege requires that one cannot be punished for doing something that is not prohibited by law. Nulla poena sine lege requires that there must be defined penalties attached to criminal prohibitions. These two principles go hand in hand and are codified in article 15 of the ICCPR. As previously mentioned, the Statute of the Iraqi Special Tribunal
was the first Iraqi law to criminalise war crimes, genocide and crimes against humanity thus prima facie breaching these two fundamental principles. However, after the Nuremberg trial, it has been internationally recognised that war crimes, genocide, and crimes against humanity are jus cogens crimes under international customary law. This means these crimes are ‘peremptory norms of general international law’ which are not derogable and are binding on all states. Thus, even though these crimes were not criminalised under Iraqi domestic law at the time they were committed, they were still criminalised under international customary law and therefore prosecuting Hussein for these crimes under the Statute of the Iraqi Special Tribunal
does not breach article 15 of the ICCPR.
This thesis proposed that it is possible to determine if the Dujail trial was a show trial by assessing whether it contained characteristics suggesting the pursuit of ‘victor’s justice’ as well as the heightened probability of conviction by the desertion of the rights of the accused to a fair trial. The trial had many such characteristics including the US’s dominant role in the prosecution of Hussein and the IST’s failure to uphold the minimum fair trial guarantees as prescribed by international law. The conglomeration of these characteristics suggests that the Dujail trial was, in fact, a show trial as was feared and warned against prior to the commencement of the trial.
- WHAT IS THE PURPOSE OF A SHOW TRIAL?
When a trial is characterised as a show trial, and where the perpetrator has undoubtedly been involved in the commission of gross violations of human rights and international humanitarian laws, the guilt of the accused is usually a foregone conclusion, therefore what is the purpose of the show trial? Is the trial being held primarily for the purpose of satisfying a public desire for retribution, rather than a need to evaluate a legal situation and reach an unbiased verdict? Is it just a political show by successor regimes? Does it serve as a warning to other transgressors? Is it being held for the sole purpose of adhering to a long-standing judicial procedure? Or is it being held for the purpose of vengeance instead of justice?
Academics have acknowledged that show trials may serve diverse purposes within different historical and political contexts.
Simpson argues that ‘Show trials are juridical enactments of particular political realignments or historical transformations’.
Thus, to ascertain the purpose of a show trial, we must first identify the historical and political context of that show trial. Traditionally the term ‘show trial’ was only used in a pejorative sense to reflect the trials held under the Stalin and Nazi regime where show trials were used to eliminate oppositions of the regime.
They were often considered illegitimate as they lacked legal standing.
The show trial’s sole purpose was to demonstrate political power and act as a warning to those who opposed the regime.
For this reason, show trials are often viewed as serving negative and illegitimate purposes that are unrelated to the pursuit of justice. In fact, many academics warn that if a trial is seen as a show trial, it automatically lacks legitimacy. However recently, the positive implication show trials serve in the pursuit of justice particularly in transitional justice societies, has increasingly been recognised in legal literature.
Transitional justice theorists and practitioners argue that trials held during the transitional justice movement must stick to the dictates of procedural fairness, also known as natural justice. The doctrine of natural justice ‘is of ancient origin, often associated with the jurisprudential tradition of natural law’. Natural law is based on the idea that equality, fairness, and reason are measures which all man-made laws must conform to. Traditionally, the terms procedural fairness and natural justice are terms that were and often are still used interchangeably. Just as procedural fairness is concerned with ‘a fair hearing, not a fair outcome’, natural justice also requires the administration of the law to be ‘just’, and if it resorts to ‘other purposes, it is vacuous’. This point is echoed by transitional justice theorists who argue that if a trial deviates from the principles of procedural fairness and natural justice and is seen a show trial. It is argued that this essentially delegitimises efforts to bring the perpetrators to account thus vitiating the transitional justice process. More increasingly, this argument has been refuted. Scholars such as Allo suggests that despite being labeled a ‘show trial’, holding perpetrators accountable for the offences they have committed helps to promote national reconciliation, the restoration of the rule of law and fosters a culture, which respects human rights.
He argues that, ‘What counts is not that a trial is labeled a “show trial” but rather, the end that the “show” serves’.
Similarly, Mark Osiel suggests that although ‘show trials are orchestrated or staged for what may seem to be an illegitimate purpose that violated rights of procedural fairness’, there is nothing ‘inherently misguided or morally indefensible’ about ‘staging trials’ which transforms a ‘society’s collective memory’.
In the same vein, Jeremy Peterson suggests that show trials may serve more than one positive purpose, including acting as a warning or lesson about the wrongness of conduct to deter transgressors from committing similar atrocities.
- THE DUJAIL TRIAL: THE FIRST AND LAST STEP IN IRAQ’S TRANSITIONAL JUSTICE PROCESS
Whether labelled as a ‘show trial’ or a ‘fair trial’ it is undeniable that the Dujail trial was the first step to achieving justice in post-conflict Iraqi by promoting accountability, the rule of law and by allowing the people of Iraq to see justice prevail.
However, holding Hussein and his officials accountable for the atrocities they committed is only one of the many mechanisms which contribute to the transitional justice process. Thus, the IST’s verdict to execute Hussein and his co-defendants prevented the implementation of another significant step in the transitional justice process, namely the process of ‘truth telling’.
Transitional justice refers to various measures employed by states and international institutions to address the legacy of human rights abuse during a society’s transition away from authoritarian rule.
The goals of transitional justice include both retributive and restorative justice.
Retributive justice focuses on holding perpetrators accountable for the human rights violations they committed while restorative justice focuses on the healing of wounds, rebuilding of relationships and promoting national reconciliation.
Although these are two different forms of justice, both are essential for the healing of transitional justice societies.
One of the main aims of restorative justice is the bringing closure and healing the wounds of individuals and society through ‘truth telling’ via the establishment of Truth Commissions. Truth commissions are temporary investigative bodies, which have been established to clarify the ‘truth’ about atrocities and events that took place during an earlier period of repression or conflict.
Mendeloff Anderlini suggests that truth telling promotes social and psychological healing for its victims and allows for a comprehensive representation of reality and history which helps consolidate peace. In the same vein, Naiteh Wu claims that ‘truth-telling can bring forgiveness and reconciliation to heal the wounds dividing a society and to cure the trauma that agonises the victims’.
Thus it is imperative that transitional justice societies aim to achieve restorative justice alongside retributive justice.
According to Naraghi et al., Transitional justice societies, which primarily focused on retributive justice often suffer from three major shortcomings.
The first is that because prosecutions focus primarily on the perpetrator and do not give victims the attention or healing they need. The second is that perpetrators have no incentive to confess, tell the whole truth about the atrocities they committed or make the record public. Lastly, due to the nature of examination in court and the necessity for clear-cut answers, this may limit information sharing, making it difficult to obtain the whole truth. In contrast, some academics have argued that the courts may act as a mechanism of truth telling by uncovering evidence of mass atrocities and scrutinising this evidence in a public way thus helping to record history. However, as Judge Roling points out we must be critical of this, as ‘there is a difference between the “real truth” and the “trial truth”’. 
The concern with the courts being a mechanism of truth telling is that the trial may then ‘resolve into a political debate about the validity of the different historical accounts being told’. A criminal court has no place being the ‘arbitrator between historical accounts’ however a truth commission is in a better position to take on that role.
Malcolm Smart, Director of Amnesty International's Middle East and North Africa Program emphasised the importance of establishing a truth commission in post-conflict Iraq and the consequences of executing Hussein before the details of the truth about Iraq’s violent past were uncovered. In a press release Smart stated, ‘Hussein is dead, the truth of what happened under his rule is also dead, thus leading to another lost opportunity for Iraqis come to terms with the crimes of the past’. Salem Chalabi
, the former head of the IST echoed this opinion as he believes the trial and execution of Hussein may seem productive in the short term, however ‘it will be counterproductive to the transitional justice process in the long term’. It is essential that the perpetrators of human rights violations participate in the Commission's process, ‘otherwise the goal of confronting the past, and achieving individual and collective healing, will be hampered’.
In the same vein, Jeremy Sarkin argues that Failure to establish the process of truth telling ‘disregards the rights and views of victims, denies the need for a healing process, prevents recovery of the past, and falsely imagines that forgiveness can take place without full knowledge of whom and what to forgive’.
Thus, while holding Hussein and his officials accountable for the atrocities they committed was a pivotal first step towards healing and national reconciliation in Iraq, this should not have been followed by a hasty execution. Establishing a truth commission while Hussein and his officials were alive should have been the next step towards transitional justice in Iraq. Moreover, executing Hussein and his officials after the first trial denied his other victims access to justice. Hussein was executed while other serious charges against him were still pending this included the crime of genocide and war crimes. Thus, the evidence in relation to those charges will never be heard, and Hussein and his officials will never be held accountable for the various other atrocities they committed. To echo Human Rights Watch, the execution sentence in the Dujail trial ‘is likely to deprive victims, witnesses, and the Iraqi people as a whole of the opportunity to conclusively establish which individuals were legally responsible for some of the worst human rights violations in Iraq's history’.
This thesis proposed that it is possible to determine if the Dujail trial was a show trial by assessing whether it contained characteristics suggesting the pursuit of ‘victor’s justice’ as well as the heightened probability of conviction by the desertion of the rights of the accused to a fair trial. The trial had many such characteristics including the US’s dominant role in the prosecution of Hussein and the IST’s failure to uphold the minimum fair trial guarantees as prescribed by international law. The conglomeration of these characteristics suggests that the Dujail trial was in fact a show trial as was feared and warned against prior to the commencement of the trial.
Although the Dujail trial was a show trial, this did not necessarily mean it failed to bring justice to the Iraqi people who suffered gravely under Hussein’s regime. Show trials serve diverse purposes within different historical and political contexts, particularly in transitional justice contexts where show trials promote accountability of perpetrators and national reconciliation. Despite this, however, retributive justice alone is not sufficient enough to heal the deep wounds of Iraqi’s tragic and violent past. The importance of both retributive and restorative justice in the transitional justice process cannot be undermined, particularly the role of truth telling. Saddam Hussein and the leaders of his regime should have faced trial for the genocide and war crimes charges against them and a Truth Telling Commission should have been established to uncover the truth about the atrocities committed under Hussein’s regime. In the absence of this, it can be argued that transitional justice in Iraq is incomplete, fragmented and incoherent. Thus, although prosecuting Hussein and his officials for the atrocious crimes they committed is a crucial first step towards healing and national reconciliation in Iraq, the hasty execution of Saddam Hussein signified the lost opportunity to uncover the truth about Iraqi’s violent past and ultimately hinders the overall pursuit of transitional justice in Iraq.
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