II. Judgment of the Trial ChamberSubstantive IssuesEvidentiary gaps have had serious consequences for the accuracy of many of the trial judgment’s factual findings, in particular concerning the knowledge and intent of the defendants. The trial chamber reached critical factual conclusions either in the absence of evidence, or by going far beyond the evidence that was before the court. As a result, many aspects of the judgment are unsustainable as a matter of fact and law. (The absence of any credible review during the appeal process ensured that these errors went uncorrected. Indeed, the Appeals Chamber’s cursory review of the case compounded the errors—see below.) In the result, the IHT imposed death sentences on the basis of convictions that were substantively unsound. Another three men remain imprisoned despite the absence of appropriate evidence to support their convictions. While the notoriety of those executed may mean that there is little public sympathy for their fate, execution after an unfair trial and unsound judgment recalls the practices of the former government. Moreover, the judgment itself fails utterly to provide an adequate record of the functioning of the former government, and thus constitutes a poor resource for future generations who seek to understand the bureaucracy of repression in Ba’thist Iraq. In its review of the evidence presented in court and in the trial dossier, Human Rights Watch found that the investigative judge and the prosecution did not produce the full range of evidence necessary to prove intent, knowledge, and criminal responsibility on the part of the defendants. International criminal law sets out specific requirements that must be met to establish the individual criminal responsibility of each defendant in a case such as this. In the Dujail case there were notable gaps in the evidence,14 including the striking absence of evidence establishing:
Senior Defendants—Saddam Hussein, ‘Awwad al-Bandar, Barzan al-Tikriti and Taha Yassin RamadanSaddam Hussein, Barzan al-Tikriti, and Taha Yassin Ramadan were each charged with committing murder, torture, forced displacement, unlawful imprisonment, enforced disappearance, and “other inhumane acts” as crimes against humanity under article 12 of the IHT Statute.16 ‘Awwad al-Bandar was charged with committing murder as a crime against humanity. The IHT Statute defines a crime against humanity as “any of the following acts [in this case, murder, torture, forced displacement, and unlawful imprisonment] when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” A person has the necessary intention to commit a crime against humanity when he or she intends to commit the underlying act (for example, murder), knowing that there is an attack on the civilian population and that his or her acts form part of that attack.17 The notice of charges left it unclear what basis of liability was alleged against each of the defendants.18 Based on the prosecution’s in-court statements, it appeared that the four senior defendants—Saddam Hussein, Barzan al-Tikriti, Taha Yassin Ramadan, and ‘Awwad al-Bandar—were accused of having committed crimes against humanity by participating in a “joint criminal enterprise,” and of having command responsibility for the same crimes. The trial chamber judgment appears to have convicted Saddam Hussein, Barzan al-Tikriti and Taha Yassin Ramadan on the basis of both joint criminal enterprise and command responsibility, for the same acts. ‘Awwad al-Bandar appears to have been convicted on the basis of participation in a joint criminal enterprise. Relevant Legal Principles—Joint Criminal EnterpriseA “joint criminal enterprise” is a form of individual criminal responsibility recognized in the IHT Statute and in customary international law.19 It is a “theory of liability” whereby several individual perpetrators act pursuant to a common criminal purpose. To prove guilt as a member of a joint criminal enterprise, it must be established that: a plurality of persons was involved; there was a common design or purpose involving the commission of a prosecutable crime; and the accused actually participated in this common design or purpose.20 In addition, each member of the joint criminal enterprise must possess the knowledge and intent necessary to further the common criminal plan or purpose. The “common design or purpose” to commit the crime (in this case, a crime against humanity) need not be express, but can be an unspoken understanding inferred from the fact that a plurality of persons acted in unison to effect the criminal purpose.21 However, an unspoken understanding among the members of the joint criminal enterprise should only be inferred if it is the only reasonable inference from the evidence.22 “Participation” in the common plan or purpose does not require physical perpetration of any of the underlying acts of the crime (such as murder or torture), but may take the form of assistance or contribution.23 There are three kinds of joint criminal enterprise in international criminal law: “basic,” “systemic,” and “extended.”24In convicting Saddam Hussein, Barzan al-Tikriti, and Taha Yassin Ramadan of murder, torture, forced displacement, and “other inhumane acts” as crimes against humanity, and in convicting ‘Awwad al-Bandar of murder as a crime against humanity, the trial chamber concluded first that they had all been participants in a joint criminal enterprise. 25 It also concluded that they had the requisite knowledge and intention based on the standards for a “systemic” joint criminal enterprise, rather than a “basic” or “extended” joint criminal enterprise.26 A systemic joint criminal enterprise is applied to “an organized system of ill-treatment. An example is extermination or concentration camps, in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise [of running the camp].”27International courts have noted that the category of a systemic joint criminal enterprise is not limited to concentration camps, but to any organized system set in place to achieve a common criminal purpose. However, in practice, it has only ever applied to circumstances akin to organized detention camps.28 The application of systemic joint criminal enterprise by the IHT to a context far removed from a “detention camp” scenario—crimes that began in Dujail in 1982, but which were completed over a span of several years and in several different locations across Iraq—is very questionable. Such an application required the IHT to ensure that there was evidence before it to establish that “an organized system of ill-treatment” existed that underpinned all the crimes during the requisite period. The evidentiary base establishing the “organized system of ill-treatment” is all the more essential as systemic joint criminal enterprise requires a less stringent test for knowledge and intent. Inferring knowledge and intent, based on the accused’s position, is peculiar to the category of systemic joint criminal enterprise; the other forms of joint criminal enterprise do not permit an inference of intent based solely or principally on the accused’s position of authority. It is considered permissible in the category of systemic joint criminal enterprise because of the “systemic” means in which the crimes are perpetrated, as best exemplified by concentration or detention camps. Thus, in the setting of a detention camp, the accused’s physical presence in the camp, and his or her spatial proximity to the ill-treatment occurring there, makes an inference of knowledge and intent permissible.29 Therefore, in Dujail evidence establishing the existence of a system on the basis of which intent could lawfully be inferred should have been crucial. Relevant Legal Principles—Command ResponsibilityCommand responsibility is a form of liability by which military or other superiors can be held criminally responsible for the crimes of their subordinates.30 It is an established principle of customary international law and is provided for in the IHT Statute.31 A superior is responsible for the crimes of his or her subordinates where the prosecution proves that:
A superior-subordinate relationship is generally established by showing the de facto or de jure power of the superior to prevent or punish the acts of the subordinates who committed the crimes.33 A position of command does not create a presumption of knowledge. The superior must either have actual knowledge of the criminal acts, or have information actually available to him or her that would put him or her on notice of the facts. 34 The superior is under no duty to acquire such knowledge, and neglect to do so is not a basis for liability,35 although a superior cannot willfully ignore information available to him or her.36 The duty to prevent or punish arises as soon as the superior acquires the knowledge that his or her subordinates are about to commit crimes, or have committed crimes. Erroneous Holdings in the Trial Chamber Decision—Knowledge and IntentThe trial chamber failed to cite evidence demonstrating that Saddam Hussein, Barzan al-Tikriti, Taha Yassin Ramadan, and ‘Awwad al-Bandar possessed the knowledge and intent necessary to support a finding that they were co-participants in a joint criminal enterprise. Instead, the chamber relied on the defendants’ positions of authority to infer that they each knew of the joint criminal enterprise, without pointing to evidence that would show actual knowledge, or alternatively, that such a finding was the only reasonable inference from the evidence. In its conclusions concerning ‘Awwad al-Bandar, the IHT trial chamber stated al-Bandar had knowledge of the joint criminal enterprise to commit murder as a crime against humanity against the people of Dujail, simply because he was chief judge in the Revolutionary Court and a senior member of the Ba’th Party. According to the trial chamber, he was “cognizant of the nature of that regime and intended to support it as a member of the disbanded Ba’th Party.”37 Similarly, with respect to defendant Saddam Hussein, the IHT found knowledge of and intent to participate in the joint criminal enterprise because, “He was the head of that regime, and of the ruling establishment and party, [and therefore] he is the first one to know about the intent of the regime, the ruling establishment and party to commit a deliberate murder as a crime against humanity.”38 Knowledge and intent is inferred wholly on the basis of the defendant’s status as the head of the government. Of course, if the functioning of the regime, party, and “ruling establishment” had been established by evidence, then this conclusion might have been warranted: for example, if the habitual or consistent practice of the security agencies, Revolutionary Court, and Ba’th Party institutions had been reconstructed through expert or other evidence, the leadership position of defendant Saddam Hussein may well have been a persuasive indicator of knowledge concerning the crimes committed against the people of Dujail. 39 In the absence of this evidence—which was not in the case file or presented in court—the imputation of knowledge and intent based on the defendant’s official position is erroneous. In relation to former Vice-President Taha Yassin Ramadan, the IHT also established his knowledge of the joint criminal enterprise on the basis of his official position. The IHT trial chamber asserted that Ramadan knew and intended agents of the state to be committing murder, torture, forced displacement, and “other inhumane acts” against the people of Dujail because
Once again, if there had been some evidence about the functioning of these various institutions, and about the ways in which knowledge and information flowed through them to individuals at the top, then this conclusion might have been legally correct. But as it stands, the inference of knowledge was far from the “only logical and reasonable one.” The evidence against Barzan al-Tikriti clearly indicated that he had some personal knowledge of the mass arrests and forced displacement in the aftermath of the failed assassination attempt, and three witnesses claimed that al-Tikriti personally participated in their torture at the headquarters of the Mukhabarat (General Intelligence Directorate).42 The documentary evidence indicated that the Mukhabarat played the central role in the mass arrests, interrogation, and subsequent transfer of detainees to internal exile. Documents from 1987 also stated that perhaps as many as 46 detainees had died during interrogation by the Mukhabarat. 43 Thus, despite the absence of any evidence that set out the internal functioning and organization of the Mukhabarat, it could be established that al-Tikriti knew of or could reasonably have foreseen widespread torture of detainees and possible deaths under interrogation, because of evidence of personal involvement. He also knew of widespread arbitrary detention of hundreds of people from Dujail. However, the IHT trial chamber goes further than this in its conclusions. It holds al-Tikriti responsible not only for torture, some murders, and forced displacement as a crime against humanity, but for all crimes against the people of Dujail, including the execution of over 100 individuals in 1985, almost two years after al-Tikriti had ceased to have a position in the national government and had been posted to Geneva as Iraq’s representative to the United Nations Commission on Human Rights. The trial chamber reached this conclusion on the basis of its finding that al-Tikriti knew of and intended to contribute to a joint criminal enterprise that included, or had as a reasonably foreseeable outcome, the execution of the persons convicted by the Revolutionary Court. The absence of any evidence about al-Tikriti’s state of knowledge concerning the functioning of the Revolutionary Court or the likely fate of those referred to the court raises questions about how the trial chamber reached this finding concerning al-Tikriti’s mens rea. Because the investigative judge and prosecution did not gather any evidence about how the former government habitually or customarily dealt with suspects of this nature, inferences that al-Tikriti knew that detainees who survived interrogation would be executed are hard to sustain on the basis of the record before the court. The trial chamber concludes that he did know this because he was “one of the leading figures of that regime and the head of one of its most important bodies, and from the fact that he was very close to the main decision-making person in that regime, whether in terms of family or position.”44 The IHT trial chamber committed the same category of error in its application of the principles of command responsibility. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) stipulated that, in order to convict a commander for the crimes of his or her subordinates, the evidence must prove that the commander had actual knowledge that these crimes were about to be or had been committed, or at least that specific information that would have provided notice of the crimes was made available to the commander.45 A position of command does not give rise to a presumption of knowledge, though it may be one indicator of the defendant’s knowledge when combined with other factors. The IHT trial chamber did not apply this standard, but instead asserted that the senior defendants had the requisite knowledge due to their position in the government or because of their kinship with one another.46 For example, the IHT trial chamber asserts that Saddam Hussein knew of the crimes committed by his subordinate Barzan al-Tikriti because al-Tikriti was his “maternal brother” and thus al-Tikriti’s knowledge could be considered “the supreme leader’s cognizance, or at least akin to a cause for cognizance.” But the means by which al-Tikriti’s commission of crimes such as torture might have become Saddam Hussein’s knowledge was never the subject of evidence, and indeed the trial chamber cited no evidence. Rather, it imputes knowledge to Saddam Hussein based on al-Tikriti’s position as someone who was “very close and has direct access to” Hussein as his brother.47 Similarly, the IHT trial chamber found that Taha Yassin Ramadan had de jure command authority over the Popular Army, based on a law of which the court appears to have taken judicial notice.48 It then contended that as de jure commander of the Popular Army, and because of his senior position in the government, Ramadan “must have known the names and the number of those implicated in these crimes, with the most prominent one being Ahmad Ibrahim al-Samarra’i, the leader of the party apparatus in Dujail.”49 Yet there was no evidence about how information concerning the activities of the local commander of the Popular Army—who was widely reported by witnesses as leading the Popular Army’s raids in Dujail—would have been known by Taha Yassin Ramadan. While the IHT trial chamber established the de jure powers of Ramadan (relevant to command and control), there was no evidence before it that could have established the lines of operational control and reporting (relevant to knowledge). The IHT trial chamber’s findings may have been further affected by one other matter: the reliability of most of the witness evidence given at trial was complicated by the fact that almost all witnesses were effectively anonymous. Their names were disclosed to the defense only on the morning they were to testify, and most were shielded from the sight of the defense lawyers. These two practices—very late disclosure of witness identities and protective measures that prevented confrontation between defense counsel and the witness—made it difficult to test the witness evidence. The trial chamber’s judgment does not provide any indication that the court considered these difficulties when determining the credibility of witnesses. Factual HoldingsThe IHT trial chamber’s failure to cite evidence supporting its findings of knowledge and intent was compounded by numerous factual findings that either went far beyond the evidence before it, or were made in the absence of evidence. These highly questionable factual findings reflect once again the failure of the prosecution to present to the court the evidence necessary to satisfy what international criminal law requires to be proved to hold someone individually responsible for a crime against humanity. In the trial chamber’s finding of the existence of “joint criminal enterprise” to commit murder, torture, displacement and other inhumane acts as a crime against humanity, against the people of Dujail, it found that there was an unspoken criminal plan formed between the defendants to commit all the crimes charged (except enforced disappearance).50 In the absence of any evidence of an express agreement, an “unspoken” joint criminal plan may be inferred where a plurality of persons acts in unison to put into effect the plan that is alleged.51 However, an unspoken understanding among the members of the joint criminal enterprise should only be inferred if it is the only reasonable inference from the evidence.52 The trial chamber concluded that an unspoken joint criminal plan came into existence to commit the crimes charged against the people of Dujail, but never established when or how this plan materialized. It simply asserted the existence of the plan as self-evident. In fact, the evidence indicated that the senior defendants did not “act in unison”: defendant Barzan al-Tikriti immediately traveled to Dujail to supervise the investigation, but defendant ‘Awwad al-Bandar did not act in relation to Dujail until two years after the incident.53 Evidence relied upon by the IHT trial chamber indicated defendant Taha Yassin Ramadan did not appear to take any relevant decisions until a month after the assassination attempt. Defendant Saddam Hussein’s actions of ordering the confiscation of farm land, referring the suspects to the Revolutionary Court, and ratifying the subsequent death sentences, were committed between three months and two years after the events in Dujail. It is difficult to understand how the existence of an unspoken joint criminal plan can be the only reasonable inference from this set of facts. Indeed, the facts seemed to point to considerable lack of coordination in the government’s response. It would not be impossible to prove that there was a common criminal plan or purpose that came into existence between the senior defendants, but the evidence before the trial chamber fell far short of establishing this, leaving the trial chamber to make findings of fact that are without sufficient evidentiary foundation. Rather than relying on the strained concept of an “unspoken agreement,” evidence of the functioning of the “criminal system” of state action under the Ba’thist government should have been required to support the charges. It is here that expert or “insider witness” evidence concerning the structure, internal organization, and past practice of the Ba’thist government security and political apparatuses could have been used to fill in the gaps and show the links between the “crime base” and the leadership. One means of providing “linkage” evidence is through experts in the politics, history, or military affairs of the country concerned, who can provide detailed contextual information to ground inferences concerning the decision making processes and chain of responsibility of senior officials. No evidence of this kind was ever presented. The judgment of the trial chamber is replete with other questionable findings. At one point in the judgment, the trial chamber concludes that defendant Saddam Hussein’s knowledge of and intention to participate in a joint criminal enterprise to commit the crimes listed in the charging sheet are “obvious because defendant Saddam Hussein has issued the orders to arrest, detain, torture and then execute people.”54 One page later, the trial chamber concedes that there was no evidence presented by the prosecution that Saddam Hussein directly ordered torture and killings.55 In a similar vein, the trial chamber found that, by ordering an investigation and by referring accused persons to the Revolutionary Court, Saddam Hussein knew that suspects would be executed because “this was a very predictable outcome under a totalitarian and extremely harsh regime whose nature was known in the first place to Saddam. This very probable outcome, which is practically natural according to causal and logical inferences and deductions, entails the killing of those detainees or at least the killing of many of them.”56 Yet because of the absence of evidence about the systematic use of torture by security agencies, and how that might have become known to higher officials, as well as about the relationship between the Revolutionary Court and the Office of the Presidency and the nature of the Revolutionary Court as an institution, the conclusion that these deaths were a predictable outcome constituted an assertion not based on evidence presented at trial. One piece of evidence clearly supported a conclusion that, in 1987, a report informed Saddam Hussein that as many as 46 persons detained in connection with the 1982 assassination attempt died under interrogation, and that the remaining suspects were condemned to death after a cursory trial.57 However, this does not support the conclusion that in 1982-83, Saddam Hussein had the necessary knowledge and was thus liable as a commander for failure to prevent the crimes. Rather, it is evidence that Saddam Hussein failed to punish crimes that he became aware of in 1987. The trial chamber’s reliance on the 1987 document to conclude that Saddam Hussein failed to prevent the crimes in Dujail is thus without foundation.58 Conviction of Senior Defendants for “Other Inhumane Acts”The evidence before the IHT established that several weeks after the assassination attempt the Iraqi government expropriated and razed a large amount of agricultural land in Dujail under the auspices of a redevelopment program. The evidence did not establish the exact amount of land, its financial value, or the impact on victims’ income. The Iraqi government sealed an unspecified number of houses and removed their contents. The expropriation was undertaken in such a way as to include land owned by persons arrested in connection with the assassination attempts, and Ba’th Party members (including two of the lower-level defendants). The IHT trial chamber concluded that this property destruction took place as part of the widespread and systematic attack on the population of Dujail. There was evidence that the property destruction was personally supervised by Taha Yassin Ramadan. Saddam Hussein, as Chairman of the Revolutionary Command Council, had signed an order authorizing the expropriations, subject to compensation being paid to those who were not found to have committed any crimes connected with the assassination attempt. There was evidence that compensation was in fact paid, but it was not established to whom or how much. There was also evidence indicating that the Mukhabarat participated in the process of designating land for expropriation. Wanton destruction of property is not recognized in the IHT Statute as one of the underlying crimes of a crime against humanity, only as a war crime. International tribunals have dealt with wanton or punitive property destruction under the rubric of “persecution.”59 However, persecution was not charged against any of the defendants in the Dujail case. Instead, Saddam Hussein, Taha Yassin Ramadan, and Barzan al-Tikriti were charged with committing “other inhumane acts of a similar character [to the other crimes listed in article 12] intentionally causing great suffering, or serious injury to the body or to mental or physical health.”60 The IHT’s Elements of Crimes sets out that an inhumane act should also be “of a similar character in terms of the nature and gravity of the act to the other offences in Article 12(a)”.61 The IHT trial chamber concluded that the razing of agricultural lands owned by the people of Dujail amounted to an “other inhumane act,” on the grounds that the razing of the land would have caused great suffering to its owners by depriving them of a principal source of income.62 In the course of categorizing the razing of the lands as an “other inhumane act,” the IHT trial chamber did not consider the international decisions that have interpreted and applied this crime. The ICTY Appeals Chamber has noted that while the category of “other inhumane acts” cannot be exhaustively enumerated,63 it must be interpreted cautiously because it is so broad that it could violate the principle that no crime can be committed without previously being proscribed by law (nullum crimen sine lege).64 That is, it could be applied to acts that were not, in fact, violations of international criminal law at the time they were committed. Significantly, the ICTY Appeals Chamber only applied the category of “other inhumane acts” to situations where the victim suffered “serious bodily or mental harm.”65 In no case was the category applied to property damage such as the confiscation of land and possessions. The IHT trial chamber disregarded international tribunal decisions concerning this category of crime, and did not provide an international legal basis to justify its extending the concept of “other inhumane acts” to property destruction. While it is not inconceivable that the notion of “other inhumane acts” could be applied to the razing of agricultural lands—for example, where it was calculated to induce and does induce famine and starvation—there was little or no evidence showing that the property destruction resulted in “serious bodily or mental harm.” In the absence of either a reasoned international legal analysis or compelling evidence, it appears that the IHT may have violated the principle of nullum crimen by convicting some defendants of “other inhumane acts” for the razing of lands in Dujail. Lower-level defendants—‘Abdullah Kadhim Ruwayid, Mizher ‘Abdullah Kadhim Ruwayid and ‘Ali Dayeh ‘Ali al-Zubaidi‘Abdullah Kadhim Ruwayid, his son Mizher, and ‘Ali Dayeh ‘Ali al-Zubaidi, were each convicted of aiding and abetting the senior defendants’ joint criminal enterprise to commit murder, torture, forced displacement, and unlawful imprisonment as crimes against humanity. The evidence against ‘Abdullah Ruwayid and ‘Ali Dayeh ‘Ali was that they participated in the arrest of several individuals from Dujail in the aftermath of the assassination attempt, and wrote an informant letter to then-Minister of Interior Sa’doun Shaker identifying certain individuals as sympathizers with the Da’wa Party.66 Authorities later arrested some of these individuals, and they were tried by the Revolutionary Court and executed. The evidence against Mizher Kadhim Ruwayid was that he participated in the arrest of some individuals after the assassination attempt, although much of the evidence that the trial chamber relied upon in his case consisted of witness statements before the investigative judge, which were never cross-examined either during the investigation or at trial.67 This evidence establishes that the defendants contributed to arrests. However, in order to convict them of aiding and abetting not just arrests but murder, torture, forced displacement, and unlawful imprisonment, it is necessary to prove that they knew that the acts they were committing would assist in the commission of the specific crime by the principals;68 that they were aware of the essential elements of each of the crimes, including the principals’ intention to commit the crimes;69 and that they were aware that one of a number of crimes would probably be committed, and one of those crimes was in fact committed.70 Thus, the prosecution had to show that lower-level defendants in the Dujail case knew that their acts would assist in the commission of murder, torture, forced displacement, and unlawful imprisonment, were aware of the principals’ intention to commit these crimes, and were aware that one of the crimes would probably be committed. With the exception of one hearsay statement attributed to one defendant, no evidence was presented that would have established the knowledge of the lower-level defendants concerning the intention of the principals, or what the lower-level defendants would have known concerning the likely consequences of their assistance with the arrests. 71 In the absence of this evidence, the IHT trial chamber imputed knowledge to the lower-level defendants on two bases. First, the chamber held that because they were all Ba’th Party members in varying degrees, they were “familiar with the nature of [the Ba’th] Party, especially as regards matters concerning its survival and rule under its leader, defendant Saddam Hussein.”72 Second, the chamber held that “no Iraqi had any doubt” that arrests would lead to unlawful imprisonment, torture, execution and displacement.73 The IHT trial chamber thus relied on the defendants’ status as Ba’th Party members as the principal indicator of knowledge, along with a finding of “common knowledge” concerning the nature of the regime. While some aspects of the nature of the regime might be the subject of judicial notice, the IHT trial chamber did not in fact set out the evidence that led it to this finding, never notified the parties that it intended to take judicial notice of facts, and gave them no opportunity to comment on material that was to be the subject of judicial notice. The IHT’s findings cannot therefore be regarded as falling within the concept of judicial notice. Instead, they are properly described as findings of fact based on information that was not before the court, and which appeared to derive from the judges’ personal knowledge. This cannot be the basis of a criminal conviction because the defendant cannot confront or challenge evidence of which he or she has not been given notice. “Common knowledge” or “what every Iraqi knew” might form the basis for findings concerning background facts, but cannot form the sole basis of determining a defendant’s individual criminal intent. In fact, the nature of the Ba’th Party and the nature of the government—including the systematic use of torture in interrogation and the notorious use of special courts to dispatch political enemies—could easily have been the subject of evidence. Such evidence would not only have made the decision a genuine historical record, but would have ensured the credibility of the trial chamber’s findings. Absent such evidence, the conviction of the lower-level defendants (who are now serving lengthy prison sentences) is unsound. Procedural IssuesIn its November 2006 report, Human Rights Watch documented numerous serious procedural defects in the conduct of the trial that vitiated its fairness.74 These included continuous non-disclosure of incriminating evidence, a repeated failure to disclose potentially exculpatory evidence in a timely way, non-responsiveness to procedural motions by the defense, widespread use of anonymous (or effectively anonymous) witnesses, and the reading of 29 witness statements into the record without examination. The trial chamber’s decision failed to address most of these issues, or addressed them in a manner that disregarded or misrepresented essential facts. Trial Chamber’s Finding on Disclosure of EvidenceThe trial chamber asserted that all evidence against the defendants was disclosed to them with the initial transfer of the case file in August 2005.75 However, the judgment failed to consider or even acknowledge the numerous instances of late or same-day disclosure of incriminating evidence that occurred during the trial—instances of which the trial chamber was fully aware because the defense objected in court. 76 Similarly, the trial chamber’s judgment makes no reference to the late disclosure of 300 pages of documents on January 22, 2006, even though these documents were transmitted to defense lawyers bearing the seal of the court. The account of evidentiary disclosure found in the trial chamber’s judgment is thus incomplete and misleading. Furthermore, in its substantive findings of fact on the charges, the trial chamber relied without qualification or discussion on evidence that was not disclosed in a timely way to certain defendants.77 Another flaw in the disclosure process identified by Human Rights Watch was the prosecution and investigative judge’s failure to locate and disclose potentially exculpatory evidence among the millions of pages of documents held by the IHT.78 The defendant ‘Awwad al-Bandar, the former chief judge of the Revolutionary Court who presided over the 1984 trial and sentencing of men and boys from Dujail, repeatedly claimed that the soundness of the legal procedures he employed could be verified by having regard to the full file of the Revolutionary Court proceedings. Documents in the Dujail trial dossier clearly indicated that the Revolutionary Court file consisted of 361 pages, but only four of these pages were extracted in the Dujail trial dossier. In its response to this claim, in the judgment the trial chamber contended that the court had “acted speedily” to locate the Revolutionary Court dossier and disclose it to the defendant.79 In fact, the defendant had made in-court requests repeatedly since April 2006, and the presiding judge of the trial chamber consistently denied that the court had the dossier and also denied that the court or the prosecution had any responsibility to review its files to find the documents.80 The Revolutionary Court file was only located and disclosed in late June 2006, due to the efforts of a representative of the U.S. Embassy’s Regime Crimes Liaison Office (RCLO).81 It was handed over to the defense after the close of the defense case. Trial Chamber’s Finding on Security for Defense CounselSimilarly misleading was the trial chamber’s response to the security concerns of private defense counsel. Three private defense counsel were murdered in the course of the proceedings. The government did not effectively implement the security arrangement negotiated between the Iraqi government and the defense counsel, nor did the court effectively supervise it.82 The trial chamber claimed that, from the beginning of the trial, private defense counsel and court-funded Defense Office lawyers had access to the same security arrangements as judges and prosecutors.83 The conclusion contradicts all the information available to Human Rights Watch, including interviews in which both court-appointed and private defense counsel deny that any security arrangements were made available to them before the beginning of the trial and during its first weeks.84 The trial chamber cited no evidence for its assertion and did not explain how it came to this view. The trial chamber’s reasoning showed no evidence of any objective inquiry into the existence, nature, and sufficiency of the security arrangements developed for defense lawyers over the course of the trial.85 The trial chamber also failed to respond to or in any way address a detailed motion requesting certain security measures that private defense lawyers filed in court on December 7, 2005. Instead, the trial chamber blamed defense lawyers for failing to accept the security arrangements purportedly offered by the court and placed responsibility for the deaths on them. The trial chamber contended that defense counsel failed to comply with relevant security procedures, but cited no evidence for this claim and no particular details of instances of non-compliance. It also did not examine whether alleged non-compliance with security procedures was causally related to the deaths of individual defense lawyers. Response to Defense MotionsIn Judging Dujail, Human Rights Watch noted the consistent failure of the trial chamber to issue publicly written decisions on key procedural issues, such as on its decision to close the defense case, its decision to read 29 witness statements into the record, or its response to defense motions accusing the presiding judge of bias. During sessions observed by Human Rights Watch, private defense lawyers submitted at least six written motions—addressing issues such as the time needed for the defense to prepare, security for defense counsel, recall of witnesses, scheduling of trial sessions, and the legality of the court. The court provided no public written response on these issues during the proceedings.86 Most of the motions relating to trial procedure, such as for the recall of witnesses and scheduling of trial sessions, remained unaddressed by the trial chamber. This perhaps reflected the fact that it was essentially futile to respond to such motions after the trial had concluded, but the trial chamber did not explain why it was non-responsive to motions during the course of the trial that would have had a direct bearing on the conduct of proceedings. The trial chamber did observe that it declined to respond to certain motions because they were written in intemperate language, but did not specify which ones fall within this category, and did not notify defense lawyers that their motions were being disregarded on that ground. 87 The failure to provide any written reasons with respect to the majority of trial procedure-related motions further diminished the transparency and credibility of the decision. In a trial that was highly politicized, and in which many aspects of the trial process were unfamiliar to the Iraqi public, this non-responsiveness created an appearance of arbitrariness. The judgment responded to three motions submitted by the defense in the course of the trial:
Human Rights Watch finds serious legal errors in the trial chamber’s responses to the first two motions, in particular, as follows: Motion on Bias. The defense filed a motion on bias in court shortly after Judge Ra’uf Abd al-Rahman replaced Rizgar Amin as presiding judge, due to the latter’s resignation.88 The motion alleged bias on the part of the new presiding judge on the grounds that he was formerly a political prisoner under a Ba’th government, and because he was a native of Halabja, a Kurdish town in which chemical weapons deployed by the Iraqi military killed at least 3,200 civilians in March 1988.89 The trial chamber rejected the motion, without reasons, in a court session on February 28, 2006.90 In its written judgment of November 2006 the trial chamber explained its rejection of the bias motion on three grounds. First, it contended that Judge Ra’uf Abd al-Rahman’s Halabja origins did not undermine his impartiality because “he is under oath [and] if he feels uneasy in this regard he would request to be removed.”91 Second, the trial chamber noted that Ra’uf Abd al-Rahman had been imprisoned under the presidency of ‘Abdel Salam ‘Arif “in 1963-4, at a time when Saddam Hussein and a group of Ba’th members were under arrest.”92 Third, the trial chamber argued that because all Iraqis had “relatives, friends, and people in their regions that had to endure hardships during the era of Saddam Hussein” this would mean that all judges would have to remove themselves from trials concerning the former regime. It implied that this is an absurd outcome, and instead contended that the judges can be relied upon to remove themselves from any case in which they “feel uncomfortable.” The reasoning of the trial chamber thus focused on whether Ra’uf Abd al-Rahman had subjective feelings or attitudes of bias, and concluded that if he did, he could be relied upon to recuse himself. However, it is an established principle of most legal systems that impartiality implies not only freedom from actual or subjective bias, but also the freedom from a reasonable apprehension of bias.93 The latter principle is also present in the IHT’s Rules of Procedure and Evidence, which require a judge to withdraw from a case if his independence or impartiality “might reasonably be in doubt.”94 The trial chamber failed to address entirely the question of whether Ra’uf Abd al-Rahman’s being from Halabja gives rise to a reasonable appearance of bias. Nor does it establish critical facts, such as whether any of the presiding judge’s family were victims of the 1988 Iraqi attack on Halabja. While none of these facts compelled a finding of apprehended bias, the trial chamber failed to apply the IHT’s own rules by overlooking the issue. Motion on the Legality of Creating the IHT. The IHT was initially created as the Iraqi Special Tribunal, by means of a regulation of the then-occupying power in Iraq, the Coalition Provisional Authority (CPA).95 At the time of its creation, some international humanitarian law experts questioned whether the occupying power was legally entitled under the law of belligerent occupation to create a new Iraqi court and amend Iraqi law to try war crimes, crimes against humanity, and genocide.96 However, the Iraqi Transitional National Assembly (elected by general elections on January 30, 2005) re-established the Iraqi Special Tribunal as the Iraqi High Tribunal by passing (with amendments) its statute into Iraqi law. The statute was proclaimed on October 18, 2005 (one day before the start of the Dujail trial).97 Unlike the CPA and its creation the Iraqi Governing Council (IGC),98 the Transitional National Assembly exercised sovereign Iraqi legislative power and was thus competent to create a new Iraqi court and introduce new substantive crimes. The trial chamber did not discuss the specific international humanitarian law principles governing the legislative competence of an occupying power, and made the erroneous claim that the IGC exercised sovereign power and was thus competent to create the Iraqi Special Tribunal.99 However, the error was harmless because the trial chamber resolved the legality of the IHT Statute by reference to the fact that it was enacted into Iraqi law by the Transitional National Assembly, ratified by the presidency, and proclaimed in the Official Gazette.100 It also noted that the permanent constitution of Iraq, which was ratified by referendum on October 15, 2005, recognizes the IHT as an institution.101 14 This is explored more fully in Human Rights Watch, Judging Dujail, pp. 73-83. 15 International criminal courts may apply the doctrine of judicial notice to permit judges to take notice of certain laws and public documents as “facts of common knowledge.” The IHT trial chamber might have taken judicial notice of Iraqi laws establishing the legal authority and structure of some political institutions and security organizations implicated in the events at Dujail. However, the practical functioning and exercise of authority by these organizations and institutions should still be established by evidence. Moreover, the court would still have to inform the prosecution and defense teams in respect of what exactly it intends to take judicial notice, so that both sides have an opportunity to comment or object. Judicial notice cannot be taken of a fact that would amount to an essential element of a crime, such as the intent and knowledge (mens rea) of the accused. The prosecution did not invite the court to take judicial notice of any facts not in evidence. See Prosecutor v. Semanza, International Criminal Tribunal for Rwanda (ICTR), Case No. ICTR-97-20, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, November 3, 2000; Prosecutor v. Karemera, ICTR, Case No. ICTR-97-24, Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, June 16, 2006, para. 47;ICTR, Semanza v. Prosecutor, Judgment (Appeals Chamber), para. 192; Prosecutor v. Fofana, Special Court for Sierra Leone (SCSL), Decision on Appeal Against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” May 16, 2005, paras. 28-31, and separate concurring opinion of Justice Robertson, para. 16. 16 The crimes initially charged were murder, torture, forced displacement, and unlawful imprisonment. Enforced disappearance and other inhumane acts intentionally causing great suffering were added without notice after the close of the prosecution case. 17 See Prosecutor v. Kordic and Cerkez, International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-95-14/2, Judgment (Appeals Chamber), December 17, 2004, para. 99. The elements of each underlying offense must also be proved. Thus, a person charged with murder as a crime against humanity must have had the necessary intention and engaged in the necessary acts constituting the offense of murder, namely: an act or omission by the accused (or person for whom the accused has criminal responsibility) causing the death of the victim, and done with the intention to kill or cause serious injury. Prosecutor v. Blagojevic and Jokic, ICTY, Case No. IT-02-60, Judgment (Trial Chamber), January 17, 2005, para. 556; Prosecutor v. Brdjanin, ICTY, Case No. IT-99-36, Judgment (Trial Chamber), September 1, 2004, paras. 381-382. A person charged with torture as a crime against humanity must have had the intention to commit torture, and have known that his or her act formed part of an attack on a civilian population. Torture occurs under international criminal law when there is the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental. The act or omission must aim at obtaining information or a confession, or at punishing, intimidating, or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person. Prosecutor v. Kunarac et al., ICTY, Case No. IT-96-23&23/1, Judgment (Appeals Chamber), June 12, 2002, para. 142. Forcible displacement of a population is defined under international criminal law as the intentional relocation or removal of persons from the territory in which they lawfully reside, involuntarily and without grounds permitted under international law. Relocation or removal is involuntary if it is the result of threat of force or coercion. Prosecutor v. Simic et al., ICTY, Case No. IT-95-9, Judgment (Trial Chamber), October 17, 2003, para. 125. Unlawful imprisonment is defined under international criminal law as when an individual is deprived of his or her liberty without legal basis and with the intention by the accused (or persons for whom the accused bears criminal responsibility) of arbitrarily depriving the person of his or her liberty, or in the reasonable knowledge that his or her act or omission is likely to cause the arbitrary deprivation of physical liberty. Simic, Judgment (Trial Chamber), para. 64. 18 See Human Rights Watch, Judging Dujail, pp. 44-48. Article 15(2) of the IHT Statute sets six modes of responsibility: direct commission; ordering, soliciting or inducing; facilitation, assistance, or aiding and abetting; joint criminal enterprise; incitement (for genocide only); and attempt. 19 IHT Statute, art. 15(2)(D); Prosecutor v. Vasiljevic, ICTY, Case No. IT-98-32, Judgment (Appeals Chamber), February 25, 2004, para. 95; Prosecutor v. Tadic, ICTY, Case No. IT-94-1, Judgment (Appeals Chamber), July 15, 1999, para. 220. 20 Prosecutor v. Kvocka, ICTY, Case No. IT-98-30/1, Judgment (Appeals Chamber), February 28, 2005, para. 96. 21 Vasiljevic, Judgment (Appeals Chamber), paras. 108-109. 22 Brdjanin, Judgment (Trial Chamber), para. 353. 23 Prosecutor v. Krnojelac, ICTY, Case No. IT-97-25, Judgment (Appeals Chamber), September 17, 2003, para. 31; Kvocka, Judgment (Appeals Chamber), para. 263. 24 Vasiljevic, Judgment (Appeals Chamber), para. 96; Kvocka, Judgment (Appeals Chamber), para. 82. A “basic” joint criminal enterprise exists where all co-perpetrators, acting pursuant to a common criminal purpose, possess the same criminal intention (Vasiljevic, Judgment (Appeals Chamber), para. 97); an “extended” joint criminal enterprise entails a situation where there is a common criminal purpose, but additional crimes outside the common criminal purpose are a natural and foreseeable consequence of carrying out the common purpose (Ibid., para. 98). 25 The trial chamber concluded that there was not enough evidence to convict any defendant of enforced disappearance, and that the internal exile of over 400 people from Dujail in southern Iraq did not amount to joint criminal enterprise. HRW Translation of Trial Chamber Decision, pp. 113, 272. 26 The IHT trial chamber cites two cases relating to joint criminal enterprise: Krnojelac, and Prosecutor v. Aleksovski, ICTY, Case No. IT-95-14/1, Judgment (Appeals Chamber), March 24, 2000. Both of these cases are “systemic” joint criminal enterprise cases. 27 Vasiljevic, Judgment (Appeals Chamber) , para. 98. 28 Kvocka, Judgment (Appeals Chamber), para. 183; Krnojelac, Judgment (Appeals Chamber), para. 89. In practice, the category has only applied to situations analogous to camps, detention centers, or other organized systems of ill-treatment that are spatially localized. 29 See, for example, Prosecutor v. Limaj et al., ICTY, Case No. IT-03-66, Judgment (Trial Chamber), Nov. 30, 2005, para. 511. 30 Prosecutor v. Delalic et. al., ICTY, Case No. IT-96-21, Judgment (Appeals Chamber), February 20, 2001, para. 195. 31 IHT Statute, art. 15(4). 32 Kordic and Cerkez, Judgment (Appeals Chamber), para. 839. 33 Delalic, Judgment (Appeals Chamber), paras. 192-93. 34 Prosecutor v. Blaskic, ICTY, Case No. IT-95-14, Judgment (Appeals Chamber), July 29, 2004, paras. 56-57, 62. 35 Delalic, Judgment (Appeals Chamber), para. 226. 36 Blaskic, Judgment (Appeals Chamber), para. 406. 37 HRW Translation of Trial Chamber Decision, p. 67. In its discussion of Barzan al-Tikriti’s mens rea, the trial chamber purports to reject the idea that official position is a sufficient basis for finding knowledge, but it proceeds to do so throughout its reasoning. Ibid., p. 169. 38 Ibid., p. 106. 39 An example of the meticulous reconstruction of the systematic and regular functioning of state apparatuses, as a basis for inferring knowledge and intent on the part of the defendants, can be found in the famous “Justices Case” before the US Military Tribunal in Nuremberg. See The Trial of Josef Alstoetter and Others, United States Military Tribunal at Nuremberg, February 17 to December 4, 1947, reported in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1946-1949) (Washington, DC: U.S. Govt Printing Office, 1949-53), vol. 3. 40 The committee to which the trial chamber refers appears to have been an ad hoc committee of different agencies, tasked with investigating the assassination attempt against Saddam Hussein. The evidence clearly establishes that the committee met at least once on the day of the assassination attempt and that Taha Yassin Ramadan attended the first meeting. But there was no evidence as to what transpired at that meeting, its powers, or the kind of information that was made available to its members. According to the uncross-examined hearsay statement of witness Wadah Al-Shaikh, Taha Yassin Ramadan had no role in the beginning, but a month later formed a separate committee concerned with the razing of orchards in Dujail. Al-Shaikh was a former director of investigations in the Mudiriyat al-Mukhabarat, and the documentary evidence indicated that he played an important role in the Mukhabarat’s response to the assassination attempt in Dujail. However, he was not a member of the committee to which the trial chamber refers and had no direct knowledge of its proceedings, and he was never asked how he knew what transpired. Al-Shaikh gave evidence to the trial chamber on October 23, 2005, at the US military hospital at Abu Ghraib, where he was dying of cancer. His evidence was not cross-examined because defense lawyers had refused to attend the deposition after one of their colleagues was murdered in Baghdad on October 20, 2005. The U.S. Embassy’s Regime Crimes Liaison Office (RCLO) had provided the defense lawyers with assurances of safe transport to and from the hospital, but the defense lawyers had declined to attend until a comprehensive security arrangement was reached with the court. For further background on the failure of the IHT to adequately provide for security of defense counsel, see Human Rights Watch, Judging Dujail, pp. 20-24. 41 HRW Translation of Trial Chamber Decision, p. 209. 42 Several witnesses stated that al-Tikriti was present in Dujail as the wave of arrests began. There were also documents signed by al-Tikriti as head of the Mukhabarat, in which he authorized the transfer of several hundred individuals from Abu Ghraib to internal exile, indicating that he must have known that hundreds were detained under his control. 43 A document dated July 5, 1987, and addressed by Saddam Hussein’s son-in-law, Hussein Kamel, to Saddam Hussein states that 46 of the 148 accused had already died in detention by the time they were referred to trial. Another document produced in court in the Dujail trial was an extract of a court verdict from 1986 against an interrogator who had worked on the Dujail case and who had been convicted of misconduct. This document also stated that 46 persons died during interrogation, and that the interrogators sought to conceal the deaths for fear of reprimand. 44 HRW Translation of Trial Chamber Decision, p. 167. The trial chamber also claims that “defendant Barzan was aware of said criminal intent because he personally received orders from defendant Saddam Hussein to commit such crimes.” But this contradicts a finding earlier in the decision in which the trial chamber accepts that Saddam Hussein did not directly order torture (Ibid., p. 120). 45 Blaskic, Judgment (Appeals Chamber), para. 62. 46 The trial chamber also made a number of inferences of knowledge supposedly from evidence in the file but which are not supported by that evidence. This is discussed below. 47 The trial chamber refers to a variety of correspondence that, had it been seen by Saddam Hussein, might have formed the basis of inferring actual knowledge. However, because there was no evidence concerning the flows of information between various organs such as the Revolutionary Command Council, the Office of the Presidency and the Mukhabarat, no inference could be drawn that these documents actually came to defendant Saddam Hussein’s attention. 48 No evidence about the defendants’ de jure or de facto authority was presented during the trial, and the law that the trial chamber cited was not in the trial dossier. A law of this kind might properly be the subject of judicial notice, but the IHT trial chamber never gave the defendants the opportunity to comment on the law because the court never notified them that it was going to take judicial notice of this or any other state of affairs. As a result, the defendants were denied an opportunity to confront evidence used against them, which is a basic fair trial guarantee. 49 HRW Translation of Trial Chamber Decision, p. 216. 50 Ibid., pp. 70, 112, 118, 221. Strictly speaking, where the “systemic” category of joint criminal enterprise is applied, evidence of an agreement or plan is not required, only evidence of a common purpose: see Krnojelac, Judgment (Appeals Chamber), para. 96; Kvocka, Judgment (Appeals Chamber), paras 118-119. 51 Vasilijevic, Judgment (Appeals Chamber), paras. 108-109. 52 Brdjanin, Judgment (Trial Chamber), para. 353. 53 The evidence before the IHT trial chamber clearly showed that ‘Awwad al-Bandar had conducted a summary trial that did not respect basic fair trial requirements. However, he was not charged with murder simpliciter. He was accused of murder as a crime against humanity, as a participant in a joint criminal enterprise. Hence, it was necessary to show not just that he conducted a summary or sham trial, but that he did so pursuant to a criminal plan or policy. As the court in Alstoetter pointed out, showing arbitrary behavior by the judge in the courtroom is not sufficient; rather it must be proved that the arbitrary behavior amounted to participation in a criminal policy or plan. See US v. Alstoetter, pp. 1046, 1063, 1093, 1155. 54 HRW Translation of Trial Chamber Decision, p. 103. 55 Ibid., p. 104. The evidence collected by the investigative judge established that, in the immediate aftermath of the assassination attempt, Saddam Hussein ordered an investigation. The precise parameters of the order were never established by the evidence. On October 14, 1982, the Revolutionary Command Council issued an order, signed by Saddam Hussein, authorizing the expropriation of lands in Dujail for the purposes of an “agricultural redevelopment” project and requiring compensation to be paid to the expropriated (except for certain persons detained in relation to the assassination attempt). On May 27, 1984, Saddam Hussein signed a document referring the cases of 148 individuals accused of involvement in the assassination attempt to trial before the Revolutionary Court; the referral was based upon the recommendation of legal advisors who reviewed a 361-page dossier of evidence compiled against the 148 individuals. The decision of the Revolutionary Court, convicting all 148 individuals and sentencing them to death by hanging, was issued on June 14, 1984, and on June 16, 1984, Saddam Hussein signed an order ratifying the death sentences. The death sentences appear to have been implemented in March 1985. 56 HRW Translation of Trial Chamber Decision, p. 102. See also pp. 119-120 for similar assertions. 57 This is the report by Hussein Kamel to Saddam Hussein described in note 43. There are margin notes on this document that appear to have been made by Saddam Hussein, indicating that he saw it. However, this document was not authenticated by the handwriting experts appointed by the court, who stated that they did not have the equipment and expertise necessary to validate the document. 58 HRW Translation of Trial Chamber Decision, p. 119. 59 See, for example, Blaskic, Judgment (Appeals Chamber), paras. 147-8; Kordic and Cerkez, Judgment (Appeals Chamber), paras. 108-9. 60 IHT Statute, art. 12(1)(j), reflecting Rome Statute, art. 7(k), and Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), as amended, http://www.un.org/icty/legaldoc-e/index.htm, art. 5(i). The crimes set out in IHT Statute, art. 12(1), are: willful murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty; torture; rape, sexual slavery, forcible prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity; persecution; and enforced disappearance of persons. 61 Iraqi Special Tribunal: Elements of Crimes, translation available at http://www.law.case.edu/saddamtrial/documents/IST_Elements.pdf. 62 No evidence as to the financial or other effects of the razing of the land was presented. 63 Kordic and Cerkez, Judgment (Appeals Chamber), para. 117. 64 Ibid. 65 Ibid.; Vasiljevic, Judgment (Appeals Chamber), para. 165. 66 The witness evidence against them was largely hearsay and somewhat contradictory. The letters were authenticated by the handwriting experts appointed by the court as being in the handwriting of Abdullah Kadhim Ruwayid and ‘Ali Dayeh ‘Ali al-Zubaidi. (A third letter, said by the prosecution to have been written by Mizher Kadhim Ruwayid, was found by the handwriting experts not to be in his handwriting). The defendants were not permitted to call their own expert to contest the adverse findings of the court-appointed experts. 67 The right to question witnesses is often exercised at the investigative phase in civil law systems. However, defense lawyers in the Dujail trial had not been invited to attend the investigative sessions at which witnesses were deposed, and thus had had no opportunity to question those witnesses. Hence, the witnesses whose statements were read into the record were never, at any stage of the proceedings, questioned on behalf of the defendants. 68 Blaskic, Judgment (Appeals Chamber), para. 45. 69 Aleksovski, Judgment (Appeals Chamber), para. 162. The essential elements of each of the crimes are contained in the Iraqi Special Tribunal: Elements of Crimes. 70 Blaskic, Judgment (Appeals Chamber), para. 50. 71 In one of his sessions before an investigative judge, defendant ‘Ali Dayeh ‘Ali al-Zubaidi stated that he heard that someone was tortured in the Party Headquarters at Dujail. This statement was given without counsel being present. In a subsequent statement before the investigative judge, the same defendant stated that “a group of individuals were tortured inside the [Party Headquarters in Dujail] and specifically inside the room that was occupied by defendant Barzan Ibrahim and the defendant Ahmad Ibrahim Hassun al-Samarra’i.” The basis upon which defendant ‘Ali Dayah ‘Ali knew this was never established, and there was no evidence indicating that he witnessed any torture himself. 72 HRW Translation of Trial Chamber Decision, pp. 239, 253, 265. The evidence was that the lower-level defendants ranged from “supporters” to full “members” of the Ba’th Party. They did not hold positions of command and did not occupy political posts. 73 Ibid., p. 236. 74 See Human Rights Watch, Judging Dujail, pp. 36-72. 75 HRW Translation of Trial Chamber Decision, p. 19. 76 See Human Rights Watch, Judging Dujail, pp. 48-52. 77 HRW Translation of Trial Chamber Decision, p. 234, where the Tribunal relies on a CD of a telephone conversation purporting to be between Saddam Hussein and Taha Yassin Ramadan concerning the razing of Dujail’s orchards. This CD was among several not disclosed to the defense before being used in court, and which were never authenticated. The trial chamber relied upon all of this evidence without qualification. The court always retained discretion to permit evidence that had not been disclosed in a timely manner to the defense, where the evidence was clearly probative. However, the exercise of this discretion requires a reasoned process of weighing the value of the evidence against the potential prejudice to the defendant due to late disclosure, and consideration of steps that might mitigate that prejudice (such as granting an adjournment or a delay to permit review of the new evidence): See, for example, Prosecutor v. Bagosora, ICTR, Case No. ICTR-96-7-T, Decision on the Motion by the Defense Counsel for Disclosure, November 27, 1997; Prosecutor v. Brima et al., SCSL, Case No. SCSL-04-16-PT, Decision on Application for Leave to File an Interlocutory Appeal Against Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements, February 4, 2005. No discussion or consideration of these issues is found in the IHT trial chamber judgment. 78 Human Rights Watch, Judging Dujail, pp. 52-53 79 HRW Translation of Trial Chamber Decision, p. 58. 80 Human Rights Watch-ICTJ trial observation notes, April 6, 2006. The judge made a similar statement on June 5, 2006. 81 Human Rights Watch interview with RCLO representative, Baghdad, October 2006. 82 Human Rights Watch, Judging Dujail, pp. 22-24. 83 HRW Translation of Trial Chamber Decision, p. 21. 84 Human Rights Watch, Judging Dujail, pp. 20-24, 28-35. 85 The trial chamber also made a basic error of fact in asserting that two of the three murdered lawyers were court-appointed lawyers; they were in fact private defense counsel. 86 Human Rights Watch, Judging Dujail, p. 63. While some of the motions, such as the motion concerning the legality of the IHT, could be addressed in a final judgment, most of the motions concerned procedural concerns with bearing on the defendants’ fair trial rights. Ignoring them over the course of the trial creates a serious risk that the defendants’ rights will be irreversibly prejudiced because of the lack of a timely response by the court. 87 HRW Translation of Trial Chamber judgment, p. 10. 88 For the cause of Judge Rizgar Amin’s resignation, see Human Rights Watch, Judging Dujail, p. 41. 89 See Middle East Watch, Genocide in Iraq: The Anfal Campaign against the Kurds, pp. 102-108. 90 Human Rights Watch-ICTJ trial observation notes, February 28, 2006. 91 HRW Translation of Trial Chamber judgment, p. 7. 92 Ibid. 93 See, for example, Prosecutor v. Furundzija, ICTY, Case No. IT-95-17/1, Judgment (Appeals Chamber), July 21, 2000, paras. 189-190; European Court of Human Rights, Piersack v. Belgium (App. 8692/79), Judgment of 1 October 1982; (1983) 5 EHRR 169, para. 30. 94 Rules of Procedure and Gathering of Evidence With Regard to the Iraqi High Tribunal (IHT Rules of Procedure and Evidence), Official Gazette of the Republic of Iraq, No. 4006, October 18, 2005, English translation by the International Center for Transitional Justice, http://www.ictj.org/static/MENA/Iraq/IraqTribRules.eng.pdf, rule 7(4) (emphasis added). 95 For further detail, see Human Rights Watch, The Former Iraqi Government on Trial, pp. 2-4. 96 See, for example, Marco Sassòli, “Legislation and the Maintenance of Public Order and Civil Life by Occupying Powers,” European Journal of International Law, vol. 16 (2005), p. 675. Sassòli notes that an “occupying power must … legislate to try persons having committed grave breaches [of the Geneva Conventions], if such legislation does not yet exist in the occupied territory. The Coalition Provisional Authority in Iraq, however, went one step further. It not only adopted (through the Governing Council for which it is responsible under Article 47 of Convention IV) legislation criminalizing international crimes committed by the former regime. This was certainly lawful. It could then have brought such crimes either before its own (military) courts, or before existing Iraqi courts, which it must ‘let continue to function’. It chose neither of those two options, but preferred to create a new Iraqi court for that purpose, an option which is not offered by Convention IV and is certainly not necessary to respect IHL, as the other two kinds of tribunals could have done the job. Therefore, in my view the Iraqi Special Tribunal established on 10 December 2003 by the Interim Governing Council … violated IHL and, as it was not lawfully constituted, it could not today try Iraqis accused of international crimes unless the new Interim Government of Iraq were to establish it again.” (p. 675). 97 For further details concerning the legislative history of the IHT Statute, see Human Rights Watch, The Former Iraqi Government on Trial, p. 4, and Judging Dujail, p. 8. 98 The Iraqi Governing Council was created by a regulation of the CPA on July 13, 2003, and did not exercise sovereign power. Its decisions were subject to veto by Provisional Administrator Paul Bremer, and it did not have recognized international legal personality in foreign relations. See generally, Gregory Fox, “The Occupation of Iraq,” Georgetown Journal of International Law, vol. 36 (2005), pp. 204-208. 99 HRW Translation of Trial Chamber Decision, pp. 23-27. The judgment does not discuss any international law principles concerning the criteria for determining whether an authority is “sovereign.” 100 Ibid., p. 26. 101 Constitution of Iraq, art. 130. |