Background Briefing

I. Introduction

On December 30, 2006, the government of Iraq put former President Saddam Hussein to death by hanging, in an execution widely condemned for its sectarian overtones and disorderly implementation.1

The crimes for which the government executed Hussein relate to the aftermath of an attempt on his life during his visit to the town of Dujail on July 8, 1982. The prosecution claimed that, soon after the assassination attempt and in retaliation for it, Dujail was the object of a “widespread and systematic attack” in which security forces detained over 600 men, women, and children, and tortured an unspecified number. After a year of detention in Baghdad, the authorities transferred approximately 400 detainees to internal exile in a remote part of southern Iraq and referred 148 men and boys to trial before the Revolutionary Court. The court convicted and sentenced them to death in 1984, after a summary trial. Of these 148, as many as 46 died in detention between 1982 and 1984. The government executed most of those who survived detention in 1985. The authorities seized large swathes of agricultural property in Dujail and bulldozed homes.

Saddam Hussein was executed pursuant to a death sentence imposed by the First Trial Chamber of the Iraqi High Tribunal (IHT) on November 5, 2006, after it found him guilty of crimes against humanity against the population of Dujail.2 The IHT’s Appeals Chamber upheld the conviction and sentence on December 26, 2006.3

Also convicted and sentenced to death in the same case were Saddam Hussein’s half brother Barzan al-Tikriti and former Chief Judge of the Revolutionary Court ‘Awwad al-Bandar.4 Their convictions and sentences were similarly upheld by the Appeals Chamber. Former Vice-President Taha Yassin Ramadan was initially sentenced to life imprisonment, but was later sentenced to death after the Appeals Chamber remitted his sentence to the trial chamber for more severe punishment; the trial chamber complied and imposed the death sentence, without giving further reasons.5 Al-Tikriti and al-Bandar were executed on January 15, 2007, in a procedure that was marred by the apparently inadvertent decapitation of al-Tikriti, and Ramadan was executed on March 19. Three lower-level defendants6 were convicted of aiding and abetting crimes against humanity and sentenced to 15 years’ imprisonment each. One defendant, Muhammad ‘Azzawi, was acquitted at the request of the prosecution.

The executions, and the controversy surrounding them, marked the conclusion of a criminal proceeding that failed to ensure the essential fair trial guarantees provided for in international human rights law. In a lengthy report issued in November 2006,7 Human Rights Watch documented deep institutional dysfunction at the IHT and fundamental procedural flaws in the Dujail trial, including:

  • government actions that undermined the independence and perceived impartiality of the court;
  • a failure to ensure adequately detailed notice of the charges against the defendants;
  • numerous shortcomings in the timely disclosure of incriminating evidence, exculpatory evidence, and important court documents;
  • violations of the defendants’ basic fair trial right to confront witnesses against them; and
  • lapses of judicial demeanor that undermined the apparent impartiality of the presiding judge.

In addition, Human Rights Watch concluded that the substantive case presented by the prosecution and investigative judges suffered from gaps that indicated an inadequate understanding of the elements of proof required to establish individual criminal responsibility under international criminal law.

Human Rights Watch’s interest in the fairness of the proceedings stems from its commitment to justice for the victims of grave human rights violations under the former Ba’thist government. Human Rights Watch has long demanded the prosecution of senior figures in the former government, including Saddam Hussein, and has documented some of the worst atrocities committed under the former government.8 The first trial was an unprecedented opportunity to begin the process of creating a historical record concerning some of the worst cases of human rights violations, and to initiate a methodical accounting of the policies and decisions that gave rise to these crimes. But in order for this record to be credible, and to be able to refute the arguments of those who in the future might deny the crimes or individual responsibility of former officials, the IHT had to ensure the fairness and impartiality of its proceedings and judgments. Trials that meet international human rights standards of fairness will be more likely to ventilate and verify the historical facts at issue, contribute to public recognition of the experiences of victims of different religious groups and ethnicities, and set a more stable foundation for democratic accountability after periods of conflict or repression. The necessity of fairness and credibility in the proceedings and judgment was made all the more pressing by the intensifying polarization and sectarianism of Iraqi politics, after the beginning of the trial in October 2005.

Regrettably, the proceedings in the Dujail case failed to meet this legal and historical test. The serious procedural flaws that Human Rights Watch documented in the Dujail trial cast doubt on the soundness on the trial chamber’s verdict. Moreover, the implementation of death sentences after such an unfair trial is indefensible, as well as a violation of the right to life guaranteed by article 6 of the International Covenant on Civil and Political Rights.9 The hope that the trial might have served as a model of impartial justice for a “new Iraq,” by upholding international human rights law and enforcing international criminal law, remains unfulfilled.

This briefing paper completes Human Rights Watch’s scrutiny of the Dujail proceedings. The paper reviews the written judgments of both the First Trial Chamber and the Appeals Chamber, with a view to evaluating the application of and compliance with the international criminal legal standards it was mandated to enforce. While the IHT is constituted as an Iraqi court, its statute mandates it to interpret offenses defined in contemporary international criminal law—such as crimes against humanity, war crimes, and genocide.10 The defendants in the Dujail case were uniformly charged with crimes against humanity rather than offenses drawn from domestic Iraqi law. Thus, whether the international criminal legal principles were appropriately understood and applied, and whether the requisite evidentiary standard required under international law was met, are crucial to the soundness of the court’s verdict. On this depends the ultimate determination of whether the court can be a vehicle for a true testament to the appalling crimes that occurred, or rather, in the long run will fail to do the victims justice.

Based on its review of the decision,11 and deep familiarity with the dossier of evidence and the conduct of the case, Human Rights Watch concludes that the trial judgment made substantial factual and legal errors that open the basis of the convictions to serious question in all but one case.12 Moreover, in the judgment the evidentiary basis of certain key factual findings is so weak that the decision cannot be regarded as a credible historical record of either individual criminal responsibility or the bureaucracy of repression of the Ba’th government. The cursory and inadequate review conducted by the Appeals Chamber failed to correct these errors and, in fact, compounded them by misstating several essential legal principles.

This briefing paper, in considering key substantive and procedural findings by the trial chamber and Appeals Chamber, does not address every legal and factual issue, but rather focuses on the most serious errors—those that serve to undercut the soundness of the judgment. These errors arise from a misunderstanding and misapplication of international criminal law principles governing the knowledge and intent of the defendants, and also in respect of findings of fact concerning their knowledge and intent. The paper sets forth some discussion of relevant legal principles to put the evidentiary shortcomings into the proper context. As discussed below, these errors appear closely connected to the failure of the investigative judge and prosecution to present evidence that was essential to establish knowledge and intent in the manner required by international criminal law.

The judgments in the Dujail case represent a lamentable landmark in a process where the warning signals of problems were there from the beginning, but largely ignored. The Iraqi government and its United States backers have squandered a unique chance to deal fairly and credibly with the most senior leadership of the former Iraqi government, and have put in jeopardy the likelihood that the process or the outcome will stand the test of time. In an often-quoted speech, Nuremberg Chief Prosecutor Robert Jackson warned, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”13 Sadly, both the government of Iraq and the IHT seem to have proved unable or unwilling to heed this warning.

1 The ratification of the death sentence was also attended by legal irregularities. Article 72(h) of the constitution of Iraq requires that the president ratify death sentences before they are implemented. The government of Iraq proceeded with the execution of Saddam Hussein without obtaining the ratification of the president. Instead, the death warrants were signed by Prime Minister Nouri al-Maliki, who has no constitutional authority to do so.

2 For an overview of the structure and jurisdiction of the Iraqi High Tribunal, and background on its creation, see Human Rights Watch, The Former Iraqi Government on Trial: A Human Rights Watch Briefing Paper, October 16, 2005,, pp. 2-6.

3 When the First Trial Chamber announced its verdict on November 5, 2006, the written reasons for judgment were not made available to the defendants or the public. The written reasons would not be made available until November 22, 17 days after the verdict was announced and thus only 13 days before the expiry of the 30-day time limit for the lodging of appeals under Iraqi law (Iraqi Code of Criminal Procedure, Law No. 23 of 1971, art. 252). The court never explained the over two-week delay in the provision of the judgment, but it appears to have been due to the fact that the written judgment was not completed at the time the verdict was announced.

                        When the judgment was released on November 22, 2006, it ran to approximately 300 pages in Arabic. The Appeals Chamber decision released on December 26, 2006, was 17 pages in length.

4 The defendants in the Dujail case were: Saddam Hussein, former president of Iraq; Barzan al-Tikriti, head of the General Intelligence Directorate (Mudiriyyat al-Mukhabarat al’Amma) between 1979 and 1983; Taha Yassin Ramadan, former vice-president of Iraq; ‘Awwad al-Bandar, chief judge of the Revolutionary Court between 1983 and 1990; ‘Abdullah Kadhim Ruwayid Fandi al-Mashaikh, a farmer from Dujail and former Ba’th Party member; Mizher ‘Abdullah Kadhim Ruwayid Fandi al-Mashaikh, a postal worker from Dujail and former Ba’th Party member (and son of ‘Abdullah Kadhim); Muhammad ‘Azzawi ‘Ali al-Marsumi, a mechanic from Dujail and former Ba’th Party member; and ‘Ali Dayeh ‘Ali al-Zubaidi, a teacher and former Ba’th Party member from Dujail.

5 The Appeals Chamber’s decision to demand the death penalty against Taha Yassin Ramadan was not justified by reasons of any kind, and the reconstituted trial chamber that subsequently imposed the death penalty against Ramadan similarly did not provide reasons. The reconstituted trial chamber imposed the death penalty after a brief hearing on February 12, 2007, and addressed neither submissions made by the defense nor an amicus curiae submission against the death penalty filed by the United Nations High Commissioner for Human Rights.

6 ‘Abdullah Kadhim Ruwayid, Mizher ‘Abdullah Kadhim Ruwayid and ‘Ali Dayeh ‘Ali al-Zubaidi.

7 Human Rights Watch, Judging Dujail: The First Trial Before the Iraqi High Tribunal, vol. 18, no.9 (E), November 2006, The report was based on extensive observation of trial proceedings by two Human Rights Watch researchers and two researchers from the International Center for Transitional Justice (ICTJ). Human Rights Watch researchers also conducted over three dozen interviews with key actors in the tribunal, including prosecutors, judges, defense lawyers, and administrators. Human Rights Watch researchers reviewed the dossier of evidence submitted by the investigative judge to the trial chamber, and examined the statements given by the defendants to the investigative judge.

8 See, for example, Middle East Watch (now Human Rights Watch/Middle East), Genocide in Iraq: The Anfal Campaign Against the Kurds (New York: Human Rights Watch, 1993); Middle East Watch, Endless Torment: The 1991 Uprising in Iraq and its Aftermath (New York: Human Rights Watch, 1992); Human Rights Watch/Middle East, Iraq’s Crime of Genocide: The Anfal Campaign Against the Kurds (New Haven: Yale University Press, 1994).

9 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 6. Iraq ratified the ICCPR on January 25, 1971. See also UN Human Rights Committee, Reid v. Jamaica, CCPR/C/39/D/250/1987, July 20, 1990, (accessed May 22, 2007), para. 11.5.

10 Law of the Iraqi High Tribunal (IHT Statute), Official Gazette of the Republic of Iraq, No. 4006, October 18, 2005, English translation by the International Center for Transitional Justice,, arts. 1(2), 11-13. The IHT Statute adopts the definitions of these crimes from the Rome Statute of the International Criminal Court. See Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 6-8.

11 Due to the poor quality of the publicly available translation of the trial judgment, Human Rights Watch commissioned its own translation by an expert in Arabic-English legal translation. This is referred to in the course of this briefing paper as “HRW Translation of Trial Chamber Decision.”

12 Muhammad ‘Azzawi was acquitted at the request of the prosecution. See HRW Translation of Trial Chamber Decision, pp. 269-70.  

13 Robert H. Jackson, “Opening Address for the United States,” November 21, 1945, reproduced in part in Michael R. Marrus, The Nuremberg War Crimes Trial 1945-6: A Documentary History (Boston: Bedford Books, 1997), p. 81.