Anfal Decision Expected Soon
June 22, 2007
On reading the judgment it’s clear it’s based more on assumptions than on facts introduced into evidence. We looked to see if the quality of the judgment was an improvement over the conduct of the trial. It wasn’t.
Richard Dicker, director of Human Rights Watch’s International Justice Program.

The judgment in the Dujail trial of Saddam Hussein reflects serious factual and legal errors made by the Iraqi High Tribunal’s Trial Chamber, Human Rights Watch said in a briefing paper released today. Human Rights Watch commissioned its own translation of the 300-page judgment and an analysis of it is now available. The tribunal’s second judgment, for the Anfal case, is expected soon.

The Dujail trial, which concluded on July 27, 2006, concerned crimes that occurred in the aftermath of an assassination attempt against then-President Saddam Hussein in Dujail in July 1982. Saddam Hussein and three others were found guilty of crimes against humanity and executed after the trial chamber’s judgment was affirmed on appeal in December 2006. The 34-page briefing paper, “The Poisoned Chalice,” documents factual and legal errors in the judgment.

“On reading the judgment it’s clear it’s based more on assumptions than on facts introduced into evidence,” said Richard Dicker, director of Human Rights Watch’s International Justice Program. “We looked to see if the quality of the judgment was an improvement over the conduct of the trial. It wasn’t.”

Human Rights Watch documented fundamental procedural flaws in the trial itself, including the tribunal’s lack of independence from political influence and shortcomings in disclosing prosecution evidence to the defense, which rendered the trial unfair. Human Rights Watch’s analysis of the judgment issued on November 22, 2006, concludes that the trial’s shortcomings extend to the legal reasoning in the judgment.

Key factual and legal errors in the Dujail judgment identified by Human Rights Watch include:

• Relying solely on the defendants’ government positions to establish that they had knowledge and intent to commit the crimes;
• Failing to show the actual lines of command and control needed to establish the responsibility of leaders for the acts of their subordinates;
• For lower-level defendants, relying on their status as Ba`th party members to show that they had the intent to commit the crimes without pointing to evidence of the nature of the Ba`th regime and instead relying on “common knowledge” to determine the defendant’s individual criminal intent; and,
• Failure to address numerous instances of same-day or late disclosure of prosecution evidence to the defense that was used at trial.

The 17-page Appeals Chamber decision, issued on December 26, 2006 compounded the errors of the trial chamber by making faulty legal conclusions and asserting factual propositions that went beyond the evidence found by the Trial Chamber.

“The analysis in the Appeals and Trial Chamber judgments shows serious flaws in the application of basic international criminal law principles,” said Dicker. “This raises concerns such errors will be repeated in the Anfal judgment and it therefore won’t withstand scrutiny or the test of time.”

In the Anfal case, six high-ranking officials from the former Iraqi regime face charges of genocide, crimes against humanity and war crimes for their roles in the Anfal campaign to exterminate the Kurdish population in northern Iraq. Human Rights Watch conducted extensive research in northern Iraq in 1992 and determined that at least 50,000 and possibly as many as 100,000 Kurds were deliberately and systematically murdered over a six-month period in 1988 in what amounted to genocide.

The Anfal trial was marred by procedural flaws including political interference such as removal of the presiding judge on September 19, 2006 by the Iraqi Prime Minister and Cabinet after the judge made remarks perceived as favorable to the defense. Human Rights Watch has also raised concerns about vague charges which made it difficult for the defendants to prepare their case and the inability of the defense to call witnesses who feared for their security. Proceedings in the Anfal trial closed on May 10, 2007 and a verdict will be issued soon. The prosecutor has called for the death penalty to be imposed on five of the six defendants.

“The court undercut the accused’s right to present a vigorous defense by allowing the prosecution to rely on vague charges and refusing requests to accommodate defense witnesses,” said Dicker. “This includes refusing to hear testimony from defense witnesses abroad via videolink.”