V. Substantive Concerns
The brutality of the former Bathist government in Iraq was notorious, but the internal functioning of the bureaucracy of repression has not been systematically examined and documented. One of the significant incidental outcomes of attempting to establish individual criminal responsibility for systematic human rights violations is that, in order to link an accused individual with the crime, it is usually necessary to carefully reconstruct the functioning of the criminal system in which the individual acted.
The scale of criminal conduct implied in crimes such as crimes against humanity usually means that the underlying acts of the crimemass killing, forced displacement, mass arrestswill be difficult to deny. However, attributing individual criminal responsibility for these acts further up the chain of political and military responsibility can be complicated by the fact that system crimes are generally characterized by a division of labour between planners and executants, as well as arrangements in structure and execution that tend to make connections between these two levels difficult to establish.252
The challenge of successfully prosecuting individuals who are alleged to be planners is that describing the events of the crime (crime-base) will generally not be enough: it will be necessary to elucidate the elements of the operation of the machinery253 by showing how political and security institutions regularly functioned, to whom information flowed as a matter of course, and what was known or reasonably knowable to those higher up in the system. Unless the orders or instructions given were patently criminal on their face,254 this kind of evidence is essential to showing that an accused person knew and intended that the criminal acts would be committed by persons under his or her control or acting in conjunction with him or her. Proving knowledge and intent is necessary to prove that an accused person is individually liable for a criminal act.
Based on our review of the dossier of evidence in the Dujail case, and our observation of proceedings, Human Rights Watch is concerned that neither the investigative judge nor the prosecution in the Dujail case paid sufficient attention to gathering evidence that would prove the required kinds of knowledge and intention on the part of the defendants in the Dujail case to commit the crimes alleged. In particular, the case against the senior defendants was marred by a striking lack of linkage evidence. That is, an almost total lack of evidence establishing:
The absence of these kinds of evidence diminishes the persuasiveness of the prosecution case, because it makes it harder to establish that the high-level defendants knew or had reason to know that crimes would be committed as a result of orders that might have been legal on their face, or in the absence of explicit orders at all. These kinds of evidence are generally essential to reconstruct the political context in which the crimes took place, thus allowing the credible inference that senior political figures authorized, or had an unspoken agreement approving, the crimes.
The defendants were charged uniformly with committing murder, torture, forced displacement, and unlawful imprisonment as a crime against humanity under article 12 of the IHT Statute.256 A crime against humanity is defined in the IHT Statute 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 has the intention to commit the underlying act257 (for example, murder), and when he or she knows that there is an attack on the civilian population and that his or her acts form part of that attack.258
Because of the vagueness of the notice of charges (as discussed above, Section IV.2), it is unclear what mode of responsibility is alleged against each of the defendants.259 However, based on the prosecutions in-court statements, it seems to be that the four senior defendants (Saddam Hussein, Barzan al-Tikriti, Taha Yassin Ramadan, and Awwad al-Bandar) were accused of having committed a crime against humanity by participation in a joint criminal enterprise. The four lower-level defendants (Abdullah Kadhim Ruwayid, Mizher Abdullah Kadhim Ruwayid, Ali Dayeh Ali, and Muhammad Azzawi260) appear to have been accused of aiding and abetting a crime against humanity by naming suspected Dawa Party members to the then-minister of interior on July 8, 1982, and allegedly leading security forces to the homes of some individuals, who were then arrested, and some of them later executed.
A joint criminal enterprise is a means of committing261 the crime alleged, namely, a crime against humanity. It is a theory of liability that, if its elements are proved, means that an accused is individually responsible for the underlying crime (the elements of which must also be proved). There are three kinds of joint criminal enterprise in international criminal law:262 basic, systemic, and extended. Only the basic and extended forms are relevant to the events concerning Dujail.263
A basic joint criminal enterprise exists where all co-perpetrators, acting pursuant to a common criminal purpose, possess the same criminal intention.264 For example, participants in a joint criminal enterprise formulate a common plan to kill and each of them has the intent to kill, although each may carry out a different role. 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.265
The criminal intent that must be shown to prove guilt as a member of a basic joint criminal enterprise is the individuals intention to perpetrate a certain crime (for example, murder, torture, or displacement), with this intent being shared by all other co-perpetrators.266 The criminal intent that must be shown to prove guilt as a member of an extended joint criminal enterprise is an intention to participate and further the common criminal purpose of a group. Responsibility for a crime other than one that was part of the common design arises if it was foreseeable that such a crime might be perpetrated by another member of the group, and the accused willingly took that risk.267 The intention of the accused can be determined either by manifest evidence, or by inference, where the inference of the accuseds intention is the only reasonable inference from the evidence.268 The fact that an accused holds a command role does not give rise to the presumption that he or she knew about the criminal acts of subordinates.269
The acts that must be established to prove guilt as a member of a joint criminal enterprise are the same irrespective of whether it is a basic or extended joint criminal enterprise. It must be proved that: a plurality of persons were 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.270 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.271 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.272 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.273
The documentary evidence collected by the investigative judge clearly establishes the parameters of the underlying acts constituting a crime against humanity: large-scale and prolonged arbitrary detention of a civilian population; torture and harsh conditions in detention leading to numerous deaths; and a summary trial followed by execution of over 100 individuals. Where the documentary evidence is largely silent is in respect of proving either an explicit or unspoken common purpose among senior defendants to commit these crimes, and that each defendant knowingly committed acts in furtherance of the common criminal purpose of committing a crime against humanity. It is here that expert and other evidence concerning the structure, internal organization, and past practice of the Bathist government security and political apparatuses was necessary to fill in the gaps and show the links between the crime-base and the leadership. Linkage evidence can be provided by experts in the politics, history, or military affairs of the country concerned, who can provide detailed contextual information to show how the individual accused fits into a chain of command, how his or her authority was exercised, and what level of knowledge he or she may be expected to have in the circumstances. In the Dujail case, no such expert evidence was presented.
The importance of compiling evidence that addresses the state of knowledge and intent of the defendants can be illustrated by considering the key documents relied upon by the prosecution to make its case against Saddam Hussein. 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).274 On May 27, 1984, Saddam Hussein signed a document referring the cases of 148 individuals accused of involvement in the assassination attempt275 to trial before the Revolutionary Court;276 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.277 The death sentences appear to have been implemented in March 1985. The haste with which the accused persons were tried and convicted, and with which the death sentences were ratified, clearly raises real suspicions that the process was no more than part of a de facto plan to carry out extrajudicial executions.
However, no evidence was presented from which the intent and state of knowledge of Saddam Hussein could be discerned or inferred in relation to these actions. The critical issue to be resolved in deciding whether this amounted to committing a crime against humanity is whether Saddam Hussein knew and intended that referring 148 persons to the Revolutionary Court would result in their conviction and execution. In the absence of direct incriminating evidence that Saddam Hussein and Revolutionary Court judge Awwad al-Bandar expressly colluded with each other, evidence establishing that Saddam Hussein had knowledge about the way in which the Revolutionary Court functioned or that he directly controlled its proceedings would be needed. One would expect this evidence to set out the structure and actual functioning of the Revolutionary Court, its legal and practical relationship with the Office of the President, its legal and practical non-independence from the policies and will of the president, and its historical treatment of persons alleged to be a security threat against the state. As a corollary, to prove that former Revolutionary Court judge Awwad al-Bandar was guilty of participating in a joint criminal enterprise to murder persons from Dujail, evidence establishing that he knowingly acted in furtherance of the then-presidents criminal plan or policy must be shown. One way of showing this would be to demonstrate that the Revolutionary Court (along with other exceptional courts in Iraq under the former Bathist government) regularly acted as an extension of state policy and its judges were not independent of the then-president. Thus, in the famous Altstotter Case before the Nuremberg Tribunal, certain judges who worked in Nazi Germanys legal system were held criminally responsible for certain judicial decisions implementing National Socialist laws because the judges were proved to have knowingly and deliberately contributed towards the effectuation of a criminal plan of racial persecution directed by the Nazi Party and the state. As part of proving its case, the prosecution in Altstotter traced the degeneration of the German legal system under Nazism and the corrosion of judicial independence, and showed how the defendant judges had a history of taking instructions from the Nazi leadership in regard to specific cases.278
Neither the investigative judge nor the prosecution gathered any evidence concerning these issues. The laws creating the jurisdiction of the Revolutionary Court, its procedures, the methods of appointing its judges, and other relevant information were never put before the IHT trial chamber. The history of the use of special and exceptional courts by the former Bathist government to effect state policy, which was extensive, was also not the subject of evidence. These absences suggest that neither the investigative judge nor the prosecution had an adequate grasp of what international criminal law requires to be proved in order to convict a person accused of a crime against humanity, in the context of these actions.
In a similar vein, no evidence was presented concerning the structure and internal organization of the several governmental institutions and security apparatuses that played a role in the events concerning Dujail, and what the leaders of these various institutions knew or could have been expected to know concerning the actions of their subordinates. For example, the Bath Partys Popular Army militia was alleged to have played a role in the response to the assassination attempt against Saddam Hussein, by arresting suspects and delivering them to the custody of the General Intelligence Directorate and the General Security Directorate (Mudiriyyat al-Amn al-Amm) and in subsequently razing orchards in Dujail.279 Taha Yassin Ramadan was the national commander of the Popular Army, and appears to have been accused of having command responsibility280 for the acts of the Popular Army in Dujail. Yet no evidence was ever presented concerning the command structure of the Popular Army, the actual and legal authority of Ramadan as commander, who were his subordinates or who had actual command of the Popular Army in Dujail, and what the reporting lines were between Ramadan and his subordinates. Ramadan was also alleged to have been a member of an ad hoc committee comprising representatives of security agencies that was responsible for coordinating the response to the assassination attempt at Dujail, but the powers, membership, and structure of this committee were never the subject of any evidence.
Important political organs such as the Revolutionary Command Council, the National Security Council, and the Office of the President all appear to have played a role in the response to the assassination attempt at Dujail. However, the membership, powers, and internal organization of these political organs was not the subject of any evidence, making it impossible to determine whether, for example, a report submitted to the National Security Council concerning the fact that nearly 800 persons from Dujail had been detained281 would have come to the attention of Saddam Hussein, Taha Yassin Ramadan, or Barzan al-Tikriti. The paths through which information flowed from the security apparatus to the political leadership, and the kinds of information that could be expected to reach the political leadership about the security apparatuses response to Dujail, were not part of the evidence compiled by the investigative judge.
The systematic use of torture in interrogation in Iraq, and the history of disproportionate violence on the part of the former Bathist governments security forces, was also never the subject of any evidence. If the use of torture and excessive force can be shown to be a common practice by security forces, and has been previously brought to the attention of the political leadership (for example, by reports submitted by human rights nongovernmental organizations or through the human rights organs of the United Nations), it becomes harder for senior government officials to claim that they did not know that torture would occur under interrogation by personnel of the intelligence and security agencies.
In respect of the four lower-level defendants, charged with aiding and abetting crimes against humanity in Dujail, no evidence was presented concerning their state of knowledge and their intent when allegedly participating in the arrest operations. In order to be found guilty of aiding and abetting, an accused must be proved to: know that the acts he or she is committing will assist in the commission of the specific crime by the principal;282 be aware of the essential elements of the crime including the principals intention to commit the crime;283 and be aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed.284 Thus, the lower-level defendants in the Dujail case (who were charged with aiding and abetting murder, torture, forced displacement, and unlawful imprisonment as a crime against humanity) must be shown to have known that their acts would assist in the commission of murder, torture, forced displacement, and unlawful imprisonment; have been aware of the principals intention to commit these crimes; and have been aware that one of the crimes will probably be committed. Neither the investigative judge nor the prosecution produced evidence relevant to proving these issues: for example, no evidence addressing the question of whether the lower-level defendants knew or reasonably would have known that their acts would assist in the commission of murder or torture or other crimes was ever introduced. Indeed, during their interrogation by the investigative judge, the defendants were not even questioned about what they knew or believed would happen to those individuals who were arrested during the aftermath of the assassination attempt in Dujail.285
Overall, the case prepared by the investigative judge in relation to the events in Dujail in 1982 suffered from important gaps in terms of the kinds of evidence necessary to prove intent, knowledge, and criminal responsibility on the part of the defendants. When preparing the case, it appears that neither the prosecution nor the investigative judge paid sufficient attention to the requirements of what must be proved under international criminal law in order to establish specific, individual criminal responsibility of each defendant for the abuses that were committed against the people of Dujail.
Some of the evidentiary gaps may also be explained by the intense pressure placed on the IHT by the Iraqi government to move forward with a trial of Saddam Hussein as early as possible.286 According to a judge with knowledge of internal deliberations of the IHT trial chamber, when the Dujail case was first referred to trial in July 2005, the trial chamber judges found the dossier of evidence to be insufficient to move forward with a trial and remitted it to the investigative judge for further investigation.287 The investigative judge appealed, and the Appeals Chamber, under what the judge described as intense political pressure,288 ruled that the trial should proceed.
252 Office of the High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives (United Nations, New York and Geneva, 2006), p. 12.
254 An example of such an order would be torture all detainees, or kill all men and boys.
255 The doctrine of judicial notice has been applied by international criminal courts to permit judges to take notice of certain laws and public documents as facts of common knowledge. It might have been permissible for the IHT trial chamber to take 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 would still have to 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, Case No. ICTR-97-20, Decision on the Prosecutors Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Nov. 3, 2000; Prosecutor v. Karemera, Case No. ICTR-97-24, Decision on Prosecutors Interlocutory Appeal of Decision on Judicial Notice, June 16, 2006, para. 47; Semanza v. Prosecutor, Judgment (Appeals Chamber), para. 192; Prosecutor v. Fofana, SCSL, Decision on Appeal Against Decision on Prosecutions Motion for Judicial Notice and Admission of Evidence, May 16, 2005, paras. 28-31 and separate concurring opinion of Justice Robertson, para. 16.
256 As noted in Section IV.2, above, these charges were expanded without notice to include enforced disappearance and other inhumane acts intentionally causing great suffering, after the close of the prosecution case. For the purposes of this discussion, the original charges will be considered.
257 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. 381382.
A person charged with torture as a crime against humanity must have had the intention to commit torture, and know that his or her act forms 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 occurs under international criminal law when there is an 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 occurs under international criminal law where 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, para. 64.
258 See Kordic and Cerkez, Judgment (Appeals Chamber), para. 99.
259 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 attempting.
260 In its closing statement, the prosecution recommended the acquittal of Azzawi.
261 Prosecutor v. Kvocka et al., ICTY, Case No. IT-98-30/1, Judgment (Appeals Chamber), February 28, 2005, para. 91.
262 Prosecutor v. Vasiljevic, ICTY, Case No. IT-98-32, Judgment (Appeals Chamber), February 25, 2004, para. 96; Kvocka, Judgment (Appeals Chamber), para. 82.
263 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]. Vasiljevic, Judgment (Appeals Chamber), para. 98.
264 Vasiljevic, Judgment (Appeals Chamber), para. 97
265 Kvocka, Judgment (Appeals Chamber), para. 83.
266 Vasiljevic, Judgment (Appeals Chamber), para. 101.
268 Ibid., paras. 129132.
269 Blaskic, Judgment (Appeals Chamber), para. 62.
270 Kvocka, Judgment (Appeals Chamber), para. 96.
271 Vasiljevic, Judgment (Appeals Chamber), paras. 1089.
272 Brdjanin, Judgment (Trial Chamber), para. 353.
273 Prosecutor v. Krnojelac, ICTY, Case No. IT-97-25, Judgment (Appeals Chamber), September 17, 2003, para. 31; Kvocka, Judgment (Appeals Chamber), para. 263.
274 The order refers to a list of names of these individuals appended to the order, but the list was not attached to the order produced in court.
275 The accused persons referred to the Revolutionary Court were charged under articles 156 and 175(2) of the Iraqi Penal Code of 1969, which criminalize intentional attempts to violate the independence, unity or security of Iraq.
276 The power of the then-president of Iraq to refer to the Revolutionary Court cases concerning threats to the internal or external security of the state was provided for in Revolutionary Command Council Decision No. 1016 of August 1, 1978, promulgated in Al-Waqai al-Iraqiya No. 1096 of August 14, 1978.
277 For the evident contradiction between the official record of 148 accused having been tried and sentenced, and reports that up to 46 had already died in custody prior to the trial, see Section IV,6.b, above.
278 The Trial of Josef Altstotter and Others, United States Military Tribunal at Nuremberg, 17 February to 4 December 1947, reported in Law Reports of Trials of War Criminals (Buffalo, NY: W.S. Hein & Co., 1997), Vol. VI, pp. 1-110. The investigative judge and the prosecution in the Dujail case focused on the unfairness of the trial before the Revolutionary Court, and the evidence indeed suggests that the trial was summary and highly unfair. However, subjecting a person to an unfair trial is not listed as one of the underlying acts that can amount to a crime against humanity under article 12 of the IHT Statute. As the court in Alstotter 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. Ibid., p. 81.
279 The wanton destruction of property is not one of the underlying crimes that can form part of a crime against humanity under article 12 of the IHT Statute. Hence, it is puzzling that the prosecution focused mostly on Ramadans alleged role in supervising the razing of the orchards in Dujail, as even if this was proved, it would not amount to a crime against humanity unless it was proved to be part of the crime of persecutionsomething with which Ramadan was never charged.
280 Due to the vagueness of the charges, it is unclear whether Ramadan was in fact alleged to have had command responsibility for the acts of the Popular Army, or whether he was primarily accused of being a participant in the joint criminal enterprise of the leadership group.
281 Report from then-Minister of Interior Sadoun Shaker to the National Security Council, dated December 28, 1982, stating that 393 men over age 19 and 394 women and children from Balad and Dujail were in detention.
282 Blaskic, Judgment (Appeals Chamber), para. 45.
283 Prosecutor v. Aleksovski, ICTY, Case No. IT-95-14/1, Judgment (Appeals Chamber), March 24, 2000, para. 162.
284 Blaskic, Judgment (Appeals Chamber), para. 50.
285 Statement of Abdullah Kadhim Ruwayid Fandi al-Mashaikh, February 21 and 28, 2005; Statement of Ali Dayeh Ali al-Zubeidi, May 5, 2005; Statement of Mohammad Azzawi Ali al-Marsumi, April 27 and June 1, 2005; Statement of Mizhir Abdullah Kadhim Ruwayid Fandi al-Mashaikh, February 21 and 28, 2005.
286 Over the course of 2004 and 2005, senior figures in the Iraqi government made numerous statements demanding that the trial of Saddam Hussein start quickly, or promising that the trial was imminent. See Talabani: Saddam to Stand Trial within Two Months, Al-Sabah al-Jadeed, June 1, 2005, as reported in Institute for War and Peace Reporting, Iraqi Press Monitor, No. 253, October 1, 2005; Barzani Calls for Speedy Trial for Saddam, Al-Mutamar, June 8, 2005, as reported in Institute for War and Peace Reporting, Iraqi Press Monitor, No. 258, October 1, 2005; Speed Up Saddams Trial, Allawi Tells Court, Reuters, August 16, 2004; Former Saddam Henchmen to Face Trial from Next Week: PM, Agence France-Presse, December 15, 2004; Iraqi FM Hopes for Saddam Trial by Years End, Agence France-Presse, June 21, 2005; Iraqi leader says judges wasting time on Saddam case, AFX News Ltd, June 24, 2005; and Talabani: Saddam likely to face trial soon, Associated Press, May 31, 2005.
287 Human Rights Watch Interview with IHT judge, Baghdad, March 2006.