Was the Dujail Trial Fair?
Miranda Sissons and Ari S. Bassin*
Abstract
The Dujail trial against eight persons accused of crimes against humanity was
intended as the first of fourteen trials; it was seen as a quick and simple case that
would enable the Tribunal to develop its skills outside the limelight. The trial was in
fact a missed opportunity in the search for Iraqi justice. It fell short in three notable
ways: (i) it was severely compromised by political interference: lack of judicial
independence, linked to the absence of a culture of respect for the fairness and
impartiality of the judicial process, was the greatest failing of the trial; (ii) there
were breaches in fair trial standards at the trial and appellate level; (iii) due to
evidentiary and analytical gaps, the trial did not expose the full extent of crimes
committed by the deposed regime; much of the judgment hinged on inference and
stretched notions of liability. The Dujail trial was better than previous (and current)
Iraqi trials. But that was not enough to meet minimum fair trial guarantees.
1. Introduction
The Dujail trial was many things: a political spectacle, a new attempt at Iraqi
justice, and, after the implementation of sentencing, an ill-fated symbol of
sectarian revenge. The trial included eight accused, the rotation of at least six
judges, and three very different courtrooms: that of Rizgar Muhammad Amin,
courteous but disastrously unpopular; that of the brisk and brusque Ra'uf Abd
al-Rahman and, finally, that of the domineering Ali al-Kahaji. Between the
time investigations began in 2004 and the cassation chamber verdict of 2006,
the country outside had lapsed into intense conflict. Three defence lawyers and
multiple tribunal staff and their close relatives had been killed. Dujaili victims,
witnesses and their families had suffered multiple retributive attacks.1
* Miranda Sissons is Deputy Director, Middle East for the International Center for Transitional
Justice. Ms. Sissons has monitored Tribunal developments and trial sessions over five Baghdad
missions from 2004 to 2007 and has met extensively with Iraqi and international Tribunal
participants. Ari Bassin is a Consultant, Prosecutions Division for the International Center for
Transitional Justice. The authors thank Marieke Wierda and Abd al-Razzaq al-Saeidi for their
invaluable assistance. [msissons@ictj.org, aribassin@yahoo.com].
1 Based on discussions with select Dujail witnesses and an official witness liaison.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Journal of International Criminal Justice (2007), 1 of 15 doi:10.1093/jicj/mqm014
ß Oxford University Press, 2007, All rights reserved. For permissions please email journals.permissions@oxfordjournals.org
It is tempting to ask whether the Dujail trial was worth it: whether all the
effort, money and lives poured into it by the United States, the Iraqis and other
international advisers were justified. But that is an unanswerable question, at
least in the short term. A better question at this time is whether the Dujail trial
fulfilled its judicial task: to credibly render individual accountability for the
alleged crimes, and thus contribute to justice for victims and the future rule of
law. A key element of credibility is fairness, that is, whether the trial met
standards of fairness defined by international human rights law and its own
governing statute. Did the Dujail trial meet the minimum fair trial guarantees
contained in Article 14 of the International Covenant on Civil and Political
Rights2
and enshrined in Article 19 of the Iraqi High Tribunal (IHT) statute?3
The answer is no. The Dujail trial was a missed opportunity in the search for
Iraqi justice. At great personal risk the IHT trial chamber judges attempted
to deliver justice at a new and ambitious standard for Iraq. But the trial fell
short in three notable ways. First, it was severely compromised by political
interference. Second, there were breaches in fair trial standards at the trial
and appellate level. Third, due to evidentiary and analytical gaps, the Dujail
trial did not expose the full extent of crimes committed. Much of the judgment
hinged on inference and stretched notions of liability. The Dujail trial was
better than previous (and current) Iraqi trials. That is worth a great deal. But
there is still a long way to go.
2. Background: The Iraqi High Tribunal
Iraqi violations of human rights and international humanitarian law4
figured
prominently in public statements leading up to the US-led invasion of 2003. US
2 Art. 14(3) International Covenant on Civil and Political Rights, 16 December 1966, S. EXEC.
DOC. E, 95^2 (1978), 999 U.N.T.S. 171 (1978) (hereinafter: ICCPR), available at: http://
www.ohchr.org/english/law/pdf/ccpr.pdf (visited 22 February 2007). Iraq ratified the ICCPR on
23 March 1976.
3 This article includes the accused's presumed innocence (19(2)), entitlement to a public hearing
(19(3)) and such minimum guarantees of a fair impartial trial (19(4)) as: being promptly
informed of the content, nature and cause of the charge against him (4a); having adequate
time and facilities to prepare his defence and to communicate freely with counsel of his own
choosing (4b) as well as being tried in his own presence (4d). Law of the Supreme Iraqi
Criminal Tribunal (Law No. 10 of 2005) Official Gazette of the Republic of Iraq (18 October 2005)
(hereinafter: IHT Statute). An English translation of the statute is available online at: http://
www.ictj.org/static/MENA/Iraq/iraq.statute.engtrans.pdf. The Tribunal's name was changed
from the Iraq Special Tribunal to the Supreme Iraqi Criminal Tribunal in October 2005;
the Tribunal uses the English name `Iraqi High Tribunal' (IHT).
4 Violations of international human rights and international humanitarian law (IHL) were
extensively documented by a number of groups, including in particular the United Nations
Special Rapporteur on the Human Rights Situation in Iraq, Amnesty International and
Human Rights Watch. Examples include: UN Commission on Human Rights Res. E/CN.4/RES/
1991/67, `Situation of human rights in Kuwait under Iraqi occupation'; Middle East Watch,
Human Rights in Iraq (New Haven: Yale University Press, 1990); Human Rights Watch, Endless
Torment: The 1991 Uprising in Iraq And Its Aftermath (New York: Human Rights Watch, 1992);
2 of 15 JICJ (2007)
officials repeatedly emphasized the need to hold Hussein and other Ba'ath
leaders accountable for these violations.5
The then-US Ambassador for war
crimes announced before the fall of Baghdad that the United States intended
to institute an `Iraqi-led' prosecutorial process.6
But although the Iraqi Special
Tribunal of December 2003 was an American creation,7
there was also strong
and genuine Iraqi appetite for accountability for the crimes of the former
regime.8
The IHT has jurisdiction to try Iraqis and Iraqi residents for crimes against
humanity, war crimes and genocide.9
It also has jurisdiction over some politi-
cal offences enacted after the 1958 revolution not based on international legal
norms.10
The Iraqi parliament incorporated an amended Tribunal statute and
rules of procedure and evidence in August 2005.11
The Tribunal's new legal
framework was gazetted just one day before the opening of the Dujail trial on
19 October 2005.
UN GA Res. A/49/651, `Human Rights Questions: Human Rights Situations and Reports of
Special Rapporteurs and Representatives: Situation of Human Rights in Iraq', 8 November
1994 (and subsequent years); Amnesty International, Iraq: Victims of Systematic Repression,
MDE 14/010/99, 24 November 1999.
5 See e.g. President George W. Bush, Remarks at the United Nation's General Assembly
(12 September 2002) available at http://www.whitehouse.gov/news/releases/2002/09/
20020912-1.html, President George W. Bush, State of the Union (28 January 2003) available at
http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html (visited 22 February
2007).
6 See US Department of Defense Briefing, `Geneva Convention, EPW's and War Crimes', 7 April
2003, available at www.defenselink.mil/transcripts/2003/t04072003_t407genv.html (visited
22 February 2007). Pre-war planning included a possible Tribunal for high-level perpetrators
of international legal crimes, with the assumption that lower-level perpetrators would be tried
in ordinary Iraqi courts. Report of the Working Group on Transitional Justice in Iraq and the
Iraqi Jurists'Association,Transitional Justice in Post-Saddam Iraq:The Road to Re-Establishing Rule
of Law and Restoring Civil Society, A Blueprint, March 2003, copy on file at the ICTJ.
7 CPA Order 48, Delegation of Authority Regarding an Iraqi Special Tribunal, available at www.
iraqcoalition.org/regulations/20040628_CPAORD_100_Transition_of_Laws__Regulations__Orders__
and_Directives.pdf (English) and http://www.iraqcoalition.org/arabic/regulations/20031210_
CPAORD48_IST_and_Appendix_A..Arabic_.pdf (Arabic) (visited 22 February 2007).
8 International Center for Transitional Justice, Iraqi Voices: Attitudes towards Transitional Justice
and Social Reconstruction, May 2004, available at www.ictj.org/mena/iraq.asp (English) or
www.ictj.org/arabic/report.html (Arabic) (visited 22 February 2007).
9 See IHT Statute, supra note 3, Arts 11^13. Iraq ratified the Geneva Conventions on 14 February
1956, and acceded to the Convention on the Prevention and Punishment of the Crime of
Genocide on 20 January 1959.
10 Crimes include attempts to manipulate the judiciary, pursuit of policies leading to war against
another Arab country, and others drawn from Law 7 of 1958. The Special Supreme Military
Court, chaired by Col. Fadil al-Mahdawi, was created immediately after the Iraq revolution of
1958 to try officials of the former regime. The Commander in Chief of the Armed Forces referred
cases for investigation and trial. The court was an essential legitimator and mouthpiece for the
new regime. B. Shwadran, The Power Struggle in Iraq (New York: Council for Middle Eastern
Affairs Press, 1960), 60^74.
11 See IHT Statute, supra note 3.
Was the Dujail Trial Fair? 3 of 15
The Dujail court tried eight accused of crimes against humanity.12
The facts
concerned an attack on the villagers of al-Dujail. In response to an alleged
assassination attempt against the presidential motorcade on 8 July 1982,
hundreds of villagers were detained, tortured, killed and exiled. Those released
from exile five years later returned to find their lands and livelihoods
destroyed. The Dujail trial was intended as the first of 14 trials, seen as a
quick and simple case that would enable the Tribunal to develop its skills
outside the limelight.13
But the Tribunal lost this opportunity when Saddam
Hussein was added to the case shortly before its opening.14
The political sensi-
tivity of the case was reinforced by an alleged connection between events in
Dujail and the Ba'ath regime's persecution of the al-Dawa party, a leading Shi'a
political party of which the current and previous Iraqi prime ministers are both
members.15
3. Analysis of the Trial
It was clear at Dujail's outset that IHT judges intended to set a new standard
for Iraqi justice, one procedurally and substantively fairer than that of the
previous regime. So did their foreign supporters.16
This was obvious from
the Tribunal's legal framework, as well as the judges' personal and
12 On trial were Saddam Hussein and three high-level cohorts who had allegedly participated
in the attack, including the former head of the intelligence services (Barzan Ibrahim
al-Hassan al-Tikriti), the former chief judge of the Revolutionary Court (Awwad Hamd
al-Bandar) and the former vice-president and head of the popular army (Taha Yassin
Ramadan). The four lower-level defendants (Abd Allah al-Ruwaid, Ali Dayih Ali, Mizher al-
Ruwaid, and Muhammad Azzawi Ali) were residents of al-Dujail.
13 Other cases investigated include: the Anfal campaign (currently at trial); the 1991 uprising in
southern Iraq (the Tribunal has announced the investigation is complete); the persecution of
religious political parties; the persecution of secular political parties; the invasion and occupa-
tion of Kuwait; the execution of merchants in 1992; the Arab marshes and others.
14 For a more detailed discussion of case selection see ICTJ Briefing Paper, The Creation and First
Trials of the Supreme Iraqi Criminal Tribunal, October/November 2005, at 18^19.
15 Prime Minister Ibrahim al-Ja'afari held office at the trial's opening in October 2005, and Prime
Minister Nuri al-Maliki held office for the rest of the proceedings.
16 All IHT functions with the exception of trial chamber and cassation judges rely heavily on the
Regime Crimes Liaison Office (RCLO). The RCLO is based at the US embassy and is formally
mandated to provide the Tribunal with analytical, logistical and investigative support. It is
comprised mostly of US personnel. The UK has played a productive role in the Tribunal's devel-
opment within the limits required by its opposition to the death penalty. There were also a
small number of independent international advisers to the trial chamber and the defence.
The US has contributed some $128 million in funding, which dwarfs the Tribunal's own
budget. It also facilitates extensive security arrangements for Tribunal and associated person-
nel. See J.B. Bellinger, III, Press Release, US Department of State, `Supporting Justice and
Accountability in Iraq', speech delivered at Chatham House, London on 9 February 2006,
available at http://www.state.gov/s/l/rls/61110.htm; see also US Department of State, Section
2207 Report on Iraq Relief and Reconstruction, Spending Plan Table (Status of Funds), October
2006, available at http://www.state.gov/documents/organization/77367.pdf (stating funds used
for Investigations of Crimes Against Humanity total $128 million).
4 of 15 JICJ (2007)
professional behaviour.17
But the previous Iraqi justice system was appalling:
the IHT was working from a very low base line.18
Even a substantial improve-
ment was not enough to meet international standards. It was unrealistic to
expect the Dujail trial to conform fully to international standards without
additional insulation from domestic pressures and broader external assis-
tance.19
The result is that the Dujail trial did not deliver adequate justice.
A. Challenges to Independence and Impartiality
All persons are entitled to a fair and public hearing by a competent, impartial
and independent tribunal.20
Many doubted the IHT could ever meet these
requirements. Established by a delegation of power from the Coalition
Provisional Authority, the legality of the IHT's establishment has been domes-
tically and internationally controversial, and its independence has been widely
questioned. Although many argued that the technical question of the legality
of the Tribunal's establishment was answered when the statute was adopted by
the Iraqi Parliament, perception problems remain.21
These questions have been
discussed extensively elsewhere and will not be addressed here. 22
The greatest failing of the Dujail trial was lack of judicial independence,
linked to the absence of a culture of respect for the fairness and impartiality
17 The IHT's legal framework, though faulty, is heavily based on international legal norms; those
norms were eroded in parliamentary revisions to the statute in 2005. The language of Art.14 of
the International Covenant on Civil and Political Rights was substantially but not completely
incorporated into Art. 19 of the IHT Statute. See supra notes 2 and 3.
18 United States Institute For Peace (R.M. Perito), Establishing The Rule Of Law In Iraq, Special
Report 103, April 2003; Judge Medhat al-Mahmud,The Court System in Iraq: A Descriptive Study
of Legislation Regulating the Court System in Iraq (Baghdad, 2004), presented at `Judicial System
in Iraq: Reality & Prospects', Amman, 2^4 October, 2004; International Commission of Jurists,
Iraq and the Rule of Law, February 1994.
19 Even trials conducted under UN auspices have not always met international standards of fair-
ness. See C. Reiger and M. Wierda, The Serious Crimes Process In East Timor: In Retrospect (New
York: ICTJ, 2006), at 2^3, 40^41. See also D. Cohen, Indifference and Accountability: The United
Nations and the Politics of International Justice in East Timor (Honolulu: East-West Center, 2006).
20 Art. 14(1) ICCPR, supra note 2.
21 IHT Statute, supra note 3. Effective on publication.
22 See e.g. M.A. Newton, `Legal Authority for the Creation of the Iraqi High Tribunal', in M.P.
Scharf and G.S. McNeal (eds), Saddam on Trial: Understanding and Debating the Iraqi High
Tribunal (Durham, NC: Carolina Academic Press, 2006) 15^23; M. Cherif Bassiouni, `Post-
Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal', 38 Cornell International Law
Journal (2005) 327. See also Coalition Provisional Authority (CPA) Order 48, `Delegation of
Authority Regarding an Iraqi Special Tribunal', issued 10 December 2003. Iraqi criminal law
did not include the offences of genocide, war crimes, and crimes against humanity; by includ-
ing them, the Iraqi Special Tribunal (IST) Statute effectively amended existing Iraqi criminal
law. According to IHL, an occupying power is limited in the changes it can make to the penal
laws of the country it occupies. For a discussion of the tribunal's creation, see ICTJ Briefing
Paper, Creation and First Trials of the Supreme Iraqi Criminal Tribunal, October 2005; available at
www.ictj.org/images/content/1/2/123.pdf (visited 22 February 2007).
Was the Dujail Trial Fair? 5 of 15
of the judicial process.23
The IHT statute contains two articles that render it
vulnerable to external intervention. Article 4(4) empowers the Council of
Ministers to transfer judges from the Tribunal to the Supreme Judicial Council
for any reason, from whence they can be retired or reassigned. Article 33
requires that no member of the Tribunal's staff can have been a member of the
Ba'ath party.24
This renders judges ineligible for service based on notification of
ineligibility from the Higher National De-Ba'athification Commission, a feared
and highly political body.25
The standard contained in Article 33 is much
higher than those stipulated by other de-ba'athification procedures, which
focus on higher-level party members. To be de-ba'athified involves loss of
employment, professional standing and considerable public stigma. There is a
third, hidden, weapon that the executive can wield to great effect: the fact that
although judicial salaries are paid from the Tribunal budget, the Prime
Minister's office controls allowances and access to protection and secure
accommodation in the International Zone. In Iraq's current security environ-
ment these are powerful ç and perhaps life-saving ç incentives.26
The Higher National De-Ba'athification Commission has repeatedly inter-
vened in the Tribunal's judicial assignments and removals. Early judicial
appointments to the Tribunal appear not to have met the required standards
and the Commission has functioned as a sword over the Tribunal's work.
De-ba'athification is a highly political process. The Commission has intervened
successfully three times in judicial assignments directly related to the Dujail
trial.27
First was the Commission's attempt to remove 19 court personnel,
23 One study that examined four domestic prosecutions of international crimes concluded that
fair and effective trials rested on four fundamental conditions: a workable legal framework;
a trained cadre of judges, prosecutors, defenders and investigators; an adequate infrastructure
(including courtroom and detention facilities) and most important, a culture of respect for the
fairness and impartiality of the process and the rights of the accused. See S.R. Ratner and
J.S. Abrams, Accounting for Human Rights Atrocities in International Law: Beyond the Nuremberg
Legacy (Oxford: Oxford University Press, 2001), 182^183.
24 IHT Statute, supra note 3, Art. 33 (varying from the standard terminology used in other de-
ba'athification-related instruments by saying, `No person belonging to the Ba'ath Party may be
appointed as a Judge, Investigative Judge, Prosecutor, employee or any of the Tribunal's staff.').
25 De-ba'athification procedures established by the Coalition Provision Authority and then the
Interim Governing Council focus on the dismissal from public service of individuals who held
one of the top four ranks of party membership, all of which are higher than the rank of
`member'. Given party membership was widespread amongst the legal and judicial professions,
the standard of Art. 33 is so high as to be almost unimplementable. In reality de-ba'athification
is a politicized process which has ignored the high threshold required by international stan-
dards before judges can be removed from ongoing cases. In this regard, the ICTJ notified then
Iraqi Prime Minister Ibrahim al-Jafaari of the UN Basic Principles on the Independence of the
Judiciary in a letter of 14 February 2006. For an explanation of de-ba'athification's legal and
political framework see E. Stover, H. Megally and H. Mufti,`Bremer's Gordian Knot: Transitional
Justice and the U.S. Occupation of Iraq', 27 Human Rights Quarterly (2005) 830.
26 The situation differs according to judges' place of residence: judges ordinarily living in Kurdi-
stan face fewer barriers in this regard. Judges and staff living in Baghdad are most vulnerable.
27 The information in this paragraph is based on extensive interviews with Tribunal and
De-Ba'athification Commission staff in 2006 and 2007, including several individuals affected
by de-ba'athification procedures.
6 of 15 JICJ (2007)
including judges and administrative staff, in July 2005. The judges maintained
their positions, but administrative staff ç including the administrative
director ç were dismissed.28
Second, the Commission orchestrated the
removal of Judge Sa'id al-Hammashi from Trial Chamber One in January 2006,
just as he appeared likely to assume the role of presiding judge.
Third, the Commission threatened to use de-ba'athification procedures against
four Tribunal judges in October 2006. It told the judges that they would be
given the opportunity to apply for transfers rather than face the public humil-
iation of de-ba'athification. Not accidentally, this resulted in the substitution of
a member of the Dujail trial bench during the trial chamber's final delibera-
tions. A member of the cassation chamber was likewise replaced. Other judges
appear to have modified their behaviour or refused positions of prominence
for fear of attracting the Commission's attention.29
An internal Tribunal
De-Ba'athification Committee was created in 2006 and has been used to
consolidate a new power elite inside the Tribunal.
Other political pressures have also eroded judicial independence. Political
leaders made public remarks assuming the guilt of the accused throughout
the process, and gave the impression that verdicts and sentencing were
foregone conclusions. The case's first presiding judge, Rizgar Amin, resigned
in the face of mounting public criticism of his `lenient'courtroom demeanour.30
Al-Hammashi, his nominated replacement, was de-ba'athified. Almost all
power relationships inside the Tribunal changed following the death of the
first Tribunal President in July 2006, and the leadership's ability (or willing-
ness) to insulate against political pressure decreased. Another stark message
was sent by the Prime Minister's swift replacement of Abd Allah al-Amiri,
presiding judge in the Anfal case, within 48 hours of saying to Saddam
Hussein, `[y]ou were not a dictator'.31
In short, examples of interference were
manifold.
The combined effect of direct interference, political pressure, security issues
and illness was an unprecedented degree of turnover within the Dujail trial
chamber.32
Only one judge from the original bench was present at the final
28 The incident provoked strong US intervention, including the threat to relocate the Tribunal.
29 An example being the decision of the first Chief Investigative Judge not to stand for re-election
in the Tribunal judicial elections of 2006.
30 The Minister of Justice, Abd al-Hussein Shandal, directly attacked Judge Rizgar in December
2005; his attacks were subsequently directed at the newly-appointed presiding judge, Rauf Abd
al-Rahman. Al-Hayat, 5 February 2006. In the same month, the ICTJ was told that members of
the executive reportedly threatened to cut judicial allowances, following unfavourable media
coverage of the IHT.
31 See P. Beaumont, `Judge in Saddam Trial Axed in Neutrality Row', The Guardian, 20 September
2006. The prosecutor had requested Judge al-Amiri recuse himself in a preceding session on
grounds that he was biased in favour of the defence; this comment was the final (and nationally
televised) straw. All information available in Baghdad points to direct intervention of the Prime
Minister's office to secure Judge al-Amiri's swift reassignment.
32 Many Tribunal judges are over retirement age, and all face extreme stress. There have also been
numerous reassignments on the basis of illness and several deaths, including that of the
Tribunal President in July 2006.
Was the Dujail Trial Fair? 7 of 15
hearing to resentence Taha Yasin Ramadan on 12 February 2007. There were
at least six substitutions33
and the presiding judge changed three times.
These changes must have affected judges'ability to evaluate the case.
There were also reasons to doubt the impartiality of the court.
While the trial chamber judges struggled valiantly to maintain impartiality in
their demeanour, they did not always succeed. Judge Ra'uf Abd al-Rahman,
for example, made a number of prejudicial comments during proceedings,
as when he publicly rebuked former Revolutionary Court judge Awwad
al-Bandar saying:`This is not a special court, I am not prosecuting you without
fulfilling my conscience, and I will not sentence 148 accused within one
hour.'34
Judge Abd al-Rahman's dismissal of the defence's motion for his own
recusal was at best poorly handled.35
Evidence of partiality also permeated
the trial chamber's judgment. While the judgment often simply accepted com-
plainant testimony without detailed evaluation, it rcepeatedly discounted
defence witness testimony.36
Unwarranted inferences were also drawn from
the testimony, and in a number of instances the trial chamber improperly
shifted the burden of proof to the defence for key elements of their crimes.37
Instead of rectifying these concerns, the cassation chamber's abbreviated
ruling exacerbated them. It was scant and poor in its legal reasoning,
and directed the trial chamber to increase the sentence of Taha Yassin
Ramadan from life imprisonment to the death penalty without citing any
reasons.38
33 One judge recused himself; one resigned, two were de-ba'athified, one switched panels and
another died in a car accident. Much of this turnover was hidden from public view. For security
reasons, the Tribunal does not release most judges' identities. Although proceedings were
televised, of the judges, only the presiding judge was shown.
34 IHT session, 5 June 2006 (a mocking reference to al-Bandar's role in sentencing 148 Dujailis to
death as the head of the Revolutionary Court.).
35 The motion was immediately dismissed verbally without reasoning by Judge Abd al-Rahman
himself in the session of 17 February and with slightly more detail on 28 February. The Trial
Chamber addressed this issue in the judgment, but under rules 7 and 8 of the Tribunal's Rules
of Procedure and Evidence this matter should have been addressed by the cassation chamber.
See Posting of Kevin Jon Heller to Grotian Moment:The Saddam Hussein Trial Blog,`Comparing
the Trial to International Standards of Due Process', http://www.law.case.edu/saddamtrial/
entry.asp?entry_id142 (28 June 2006) (visited 22 February 2007).
36 In one of the rare cases where the court addressed defence witness testimony, the court only
did so in an attempt to logically debunk the witness' testimony regarding the existence of
weapons caches in the orchards. See Iraqi High Tribunal, Trial Chamber, Case No. 1/C 1/2005,
Dujail Case, 5 November 2006 (released 22 November 2006), translated by Human Right Watch
and the International Center for Transitional Justice, at 85, 90, 94^95 available at: http://
www.ictj.org/static/MENA/Iraq/DujailVerdict.eng.pdf (hereinafter Dujail Trial Judgment).
Unfortunately, the `logical'conclusion that the court arrived at, that there could not have been
weapons caches in the orchards, was not a logical necessity, and as a result only provided a
further indication of the court's inclination against the defendants.
37 See infra Part 3(C).
38 See IHT, Cassation Chamber, Case No. 29/c/2006, Dujail Case, 26 December 2006, translated by
Mizna Management LLC, at 20 (hereinafter Dujail Cassation Judgment). The trial chamber
found Taha Yassin Ramadan guilty of crimes against humanity, murder, forced displacement,
imprisonment, torture and other inhumane acts. Evidence and reasoning on the wilful killing
8 of 15 JICJ (2007)
B. Equality of Arms
Equality of arms is `at the centre of . . . criminal procedural guarantees' and
`[t]he most important criterion of a fair trial'.39
Yet throughout the course of
the Dujail trial the IHT placed defendants at a significant disadvantage in
relation to the prosecution. It permitted ambiguous charging, limited access
to important evidence and denied defendants the full opportunity to contest
evidence presented against them.40
These problems were exemplified by
insufficient charging documents, inadequate security arrangements, failure to
gather and disclose exculpatory evidence, late or incomplete disclosure and an
impaired opportunity to confront witnesses. Such disparities were particularly
damaging to the low-level accused,41
but they affected fairness for all
defendants. The abbreviated appeals process was inadequate to evaluate the
complex substantive and procedural issues that arose during the trial.42
It is also important to note, however, that the defence repeatedly failed
to use the opportunities afforded to it by the Tribunal. Privately retained
counsel would often resort to politicized and unhelpful tactics such as staging
walkouts. The Tribunal's own Defence Office was under-resourced and
incapable of mounting an effective defence, although some improvements
occurred towards the trial's end.
charge was weak. The cassation chamber, without reasoning or rationale, ordered the case
returned to the trial chamber to increase Ramadan's sentence for wilful killing from life
imprisonment to death. The trial chamber confirmed the death sentence in the worst session
of the Dujail trial on 12 February 2007.
39 L. Arbour, In the matter of Sentencing of Taha Yassin Ramadan: Application for Leave to
Intervene as Amicus Curiae and Application in Intervention as Amicus Curiae of United
Nations High Commissioner for Human Rights, x 23, 8 February 2007 (quoting M. Nowak, UN
Covenant on Civil and Political Rights: CCPR Commentary (2nd edn., Kehl am Rhein: N.P. Engel,
2005), at 321.
40 At root was the Tribunal's inability to accept the concept of the defence as an essential partner
in the trial process. This is the legacy of a strong historical tendency to view the defence as an
unnecessary challenge to the power of the court. Unprofessional behaviour by defence counsel
did not help. The Tribunal believed strongly that it had met all fairness requirements in allow-
ing defence counsel, providing counsel for indigent defendants, and permitting them to exam-
ine and present witnesses and evidence: this was a significantly greater defence role than in
previous decades.
41 The inclusion of four minor Ba'ath Party officials alongside four high-level accused seriously
hampered the quality of their defence. They were accorded less time and fewer resources than
their high-profile counterparts.
42 The judges in the cassation chamber did not seem as concerned about fairness to the accused.
In a 20-page document, the appeal ruling addressed all the defendants' fairness concerns in a
short, unreasoned and unsupported paragraph stating: `As for the other defences, the defen-
dants were given enough guarantees to have fair trials. Each suspect was informed of the kind
of accusations filed against him. He was given ample chance to defend himself and to choose
his legal advisors and attorneys in person with the assistance of legal counsellors. He was given
the chance to interview the defence witnesses. He used his rights to fully defend himself. He
was not forced to say what he did not want to say. Then the defence he is using in this regard is
rejected too.' Dujail Cassation Judgment, supra note 38, at 14.
Was the Dujail Trial Fair? 9 of 15
The use of insufficient charging instruments put defendants at a significant
disadvantage in preparing their defence. Defences in crimes such as crimes
against humanity differ from those available in normal crimes. They are
generally based on modes of liability, rather than issues of crime base evidence.
For these reasons indictment standards are complex, but well-established
under the jurisprudence of the international tribunals.43
The Dujail charging process fell far short. The IHT's charging process
followed that of traditional Iraqi criminal law, which is a civil law system.
This two-step process differs from international processes in terms of
the timing of charges, but timing was not the main problem.44
Rather, the
procedure was insufficiently specific in terms of informing the accused of
their alleged roles in the commission of crimes against humanity.
For instance, the referral decision of the chief investigative judge
(qirar al-ihala) gave only a schematic account of factual allegations with no
differentiation between the accused individuals. It did not attempt to specify
the role played by each accused or modes of liability under Article15 of the IHT
Statute. A formal charging document (qirar al-tuhm, or accusation decision)
was not presented until May 2006, at the end of the prosecution case.
Additional criminal charges for forced disappearances and other inhumane
acts were also added. These charging documents however, lacked sufficient
clarity on modes of liability for each crime, generally charging each defendant
with the same modes of liability for all the crimes combined, when there was
clearly no evidence to support certain forms of liability for certain crimes.45
This blanket and generalized charging process violated defendants' rights to be
informed promptly and in detail of the charge against them,46
thus making
it very difficult for the accused to adequately defend against the charges.
43 ICTY Judgment, Kordic¤ and C> erkez (IT-95-14/2), Appeals Chamber, 17 December 2004, xx 128^
129 (clarifying that the indictment must contain a precise statement of facts and crimes with
which the accused is charged and unambiguously state the nature of the alleged responsibility).
See also Art. 14(3)(a) ICCPR, supra note 2 (noting an accused has a right to be informed
promptly and in detail of the charges against him); IHT Statute, supra note 3, Art. 19(4)(a)
(same); Human Rights Committee Communications No. 1128/2002, Marques de Marais v.
Angola, x 5.4 and 253/1987, Kelly v. Jamaica, x 5.8 (noting that the prompt notice requirement in
Art. 14(3)(a) of the ICCPR means that this information must be conveyed as soon as the person
is charged with the criminal offence).
44 After investigation has finished cases are referred to the trial chamber on the basis of a referral
decision, which contains the factual allegations against each defendant and the legal articles
they are alleged to have violated. After hearing of complainants, witnesses, and examining
prosecution evidence the trial chamber then draws up a detailed accusation decision contain-
ing final charges. The accusation decision is the formal charging instrument. See Iraqi Law on
Criminal Proceedings (No. 23 of 1971) x 213(A) Arts 131 and 181. The presentation of the
accusation decision after the prosecution evidence was heard implies there should be reason-
able time for the defence to prepare.
45 See e.g. Charging instrument against Abd Allah al-Ruwaid, 15 May 2006, generally charging
`commission' under Art. 15(A) for all crimes including wilful killing, and torture, when the
prosecution never presented or alluded to evidence that he `committed' these crimes.
46 See supra note 43.
10 of 15 JICJ (2007)
The accused were deprived of vital knowledge on the case against them and
forced into the impossible task of preparing for every possible alleged scenario.
The Dujail trial was held amidst intense and deepening conflict. The IHT
itself is a frequent and high-profile target. The killing of three defence lawyers
during the course of the trial shows that the IHT's measures to protect defence
counsel were inadequate.While certain security arrangements were offered to
defence counsel, too little appears to have been offered too late.47
The security
situation made it impossible for the defence to conduct its own investigations,
particularly in al-Dujail village. Members of the Tribunal's defence office have
also had difficulty in making adequate security arrangements. As a result,
defendants faced difficulties in retaining not only private counsel, but even
court-appointed attorneys.
The defence's inability to conduct investigations could have been mitigated
through efforts by the investigative judge to uncover exculpatory evidence.
Under the rules governing the IHT, the investigative judge has a duty to
gather exculpatory evidence,48
and the prosecutor has a duty to disclose
this exculpatory evidence to the defence.49
However, the dossier did not
contain exculpatory evidence, nor is there any indication that the prosecutor
fulfilled his duty to disclose exculpatory information.50
Even when one defen-
dant explicitly requested the court's assistance in locating the former
Revolutionary Court's dossier on the Dujailis who had been tried before it,
claiming it to be exculpatory, the IHT was unamenable, and stated it was the
duty of the defence to find it.51
It subsequently emerged that the dossier was
in fact in the court's possession.52
Erratic disclosure likewise diminished the defence's ability to contest the
evidence. The trial chamber allowed the prosecutor to introduce into evidence
a number of documents and exhibits during trial without prior disclosure
to the defence. Examples include audio^visual recordings of conversations
allegedly between Saddam Hussein and Taha Yasin Ramadan aired during the
sessions of 1 March, 24 April and 13 June 2006. Such practices violated the
IHT's own rules on disclosure and resulted in frequent complaints of `trial by
47 After the killing of Sadun al-Janabi in October 2005, defence counsel demanded that they be
given a choice of protective personnel (rather than have guards provided by the Ministry of
Interior); that they be issued weapons and appropriate licences, and that an impartial investi-
gation be conducted into the killing of al-Janabi. In March 2006, there were delays in paying the
guards assigned to them by the Ministry of the Interior, and there was reportedly still no offer
to relocate outside of Iraq. A third defence counsel was murdered in June of 2006.
48 Rules of Procedure and Gathering of Evidence with Regard to the Supreme Iraq Criminal
Tribunal (2005), Rule 23(2) (hereinafter IHT Rules).
49 IHT Rules, supra note 48, Rule 42(2).
50 An author specifically discussed this question with investigative judges before and during the
trial phase.
51 See IHT session, 6 April 2006. The trial chamber stated it disclosed this evidence in a timely
manner to the accused on 19 June 2006. See Dujail Trial Judgment, supra note 36, at 60^61.Yet
this was session 35 of the 41-session trial.
52 See Human Rights Watch, Judging Dujail: the First Trial Before the Iraqi High Tribunal, Vol. 18,
No. 9(E), November 2006, at 53.
Was the Dujail Trial Fair? 11 of 15
ambush'.53
There were also examples of ineffective disclosure. For example,
of the dossiers given to defence counsel prior to trial, one-third of the contents
were illegible.
The IHT also limited the defences' ability to contest evidence by depriving
them of opportunities to confront the witnesses against them. While about
half of complainants appeared in court, another 28 were deemed `unavailable'
and their statements were read into the record without reservation. These
statements had been taken by the investigative judge without the presence
of counsel for the accused; some of this testimony went directly to acts of
the accused.54
Tribunal practices concerning witness confidentiality also limited witness
confrontation. The identities of the majority of complainants and witnesses
were disclosed only hours in advance of their being called, making it impossi-
ble for the defence to prepare adequately for cross-examination.55
The substantive and procedural flaws in the Dujail case could have been
addressed by a robust appeals process. Instead, however, cassation chamber
reacted to mounting executive pressure and issued its final judgment with
worrying speed. The haste of the cassation chamber's actions appear to have
impinged accuseds' right to time and adequate facilities to prepare a defence.
The trial chamber announced the verdicts and sentences in the Dujail case on
5 November 2006, but released its written opinion only on 22 November ç
more than halfway through the 30-day appeal period. This gave the defence
only 11 days to study the judgment before submitting their appeals on
3 December. Subsequent defence submissions were accepted on 17 December.
The cassation chamber announced its final judgment just nine days later.
Unlike the trial chamber judgment, where judges had struggled hard with
the unfamiliar task of producing a serious document in the tradition of
international tribunal judgments, the cassation ruling was remarkable
primarily for its absence of reasoning. It was particularly notable for the fact
that, without discussion of reasoning or evidence, the cassation chamber
ordered that Taha Yasin Ramadan's sentence be increased from life imprison-
ment to the death penalty.56
53 See IHT Rules, supra note 48, Rule 40.
54 We have researched this point extensively, including in discussion with the Chief Investigative
Judge and defence lawyers. Defence counsel were present during the questioning of their own
accused, but do not appear to have participated in any other parts of the investigation.
55 Confidentiality measures may be valuable and in Iraq there may be good reasons for their
application. Yet the measures appeared to have been applied in a blanket manner, rather than
on a case-by-case basis.
56 Dujail Cassation Judgment, supra note 38, at 20. To many observers (unaware of last-minute
changes to the composition of the trial chamber) the cassation chamber judgment marked an
important but unwelcome boundary: between a tribunal struggling in good faith but limited
capacity to deliver a judicial verdict, and the slide into a purely political process.
12 of 15 JICJ (2007)
C. Evidentiary Gaps and Analytical Flaws in the Judgment
Besides these concerns about fairness, there were also a number of evidentiary
gaps in the case as presented by the prosecutor. While evidence on the crime
base was strong, there was insufficient evidence to show that many of the
accused had the requisite criminal intent or knowledge about the crimes
committed.57
This meant that the court was only able to convict through
making unsupported inferences. Even Saddam Hussein's liability under
command responsibility ç arguably the prosecution's strongest case against
Hussein ç rested on assumptions of knowledge drawn from his position,
rather than from evidence of actual or constructive knowledge at the time
when the crimes were committed.58
Nor was there any contextual evidence to show how the various institutions
implicated usually functioned as part of Saddam Hussein's regime. An example
of this lack of contextual evidence was the conviction of Awad Al-Bandar,
chief judge of the Revolutionary Court. The trial chamber held that the trial
of 148 Dujailis before the Revolutionary Court was a sham, and that the
judgment amounted to an execution order. But in making that finding, it did
not call evidence on the role the Revolutionary Court usually played within
Saddam Hussein's regime. Instead, it sought to conclude that on this occasion
there had been a sham trial, an issue that is far harder to prove to the required
standard.
The case also lacked linkage evidence connecting the high-level accused to
the crimes charged.59
The case against Taha Yassin Ramadan was particularly
weak. Instead of clearly presenting evidence on the role of the Popular Army in
killing and torture, and proving the effective control of Taha Yassin Ramadan
over his subordinates, the court held that under Saddam's regime, killing and
57 See e.g. Dujail Trial Judgment, supra note 36, at 66^67 (unconvincing attempt to impute
Bandar's knowledge); ibid. at 108^109 (asserting that Saddam Hussein knew that the probable
result of his order would be killing without any evidence); ibid. at 218, 222^223, 225^227
(trying to assert requisite knowledge of Taha Yassin Ramadan without evidence); ibid. at 250
(stating that although everyone is entitled to the presumption of innocence, based on the
evidence in the case, especially Abd Allah al-Ruwaid's report, the court `cannot presume good
intent'); ibid. at 248 (attempting to assert, without evidence, Abd Allah al-Ruwaid's knowledge
that torture and killing were the probable result of his actions); ibid. at 262 (same for Ali Dayih
Ali); ibid. at 275 (same for Mizher al-Ruwaid).
58 See e.g. Dujail Trial Judgment, supra note 36, at 105, and 111^112. There is evidence in the
dossier to indicate that Hussein may not have known of these criminal acts when they were
committed. The fact that a subsequent report was submitted to him outlining what had taken
place in Dujail suggests that there was a need for such a report because before that time
Hussein had been unaware of those activities. There is also evidence in the dossier that once
Hussein became aware of the detention and exile of many of the Dujailis, he released them.
59 System crimes require a detailed exploration of the system itself, and not merely its results.
The results are manifested in the underlying offences that constitute what is called the `crime
base' (e.g. murder, torture, rape, deportation, etc.). The testimony of the complainants and the
documentary evidence of the Dujail case succeeded in establishing the crime base, but often
not the responsibility of the accused for the crime through evidence of his role in the overall
system.
Was the Dujail Trial Fair? 13 of 15
torture were the probable results of any arrests carried out by the Popular
Army. The judgment simply declared that `[n]o Iraqi had any doubt about
that reality'.60
The result is that the court failed to translate `what all Iraqis
knew' into legally justifiable facts based on evidence. It inappropriately used
inferences to fill in important gaps so as to achieve the desired outcome, which
was the conviction of high-level accused.
When the IHT assumed and inferred facts, knowledge and system evidence
it changed the burden of proof and subverted the presumption of innocence.61
The presumption of innocence means that every element of each charge must
be proven to the required standard.62
By using impermissible inferences
to prove elements of a crime without evidentiary support, the Dujail trial
chamber presumed aspects of the defendant's guilt, shifting the burden to the
defendant to provide evidence of his innocence. This burden shifting violated
the accused's right to the presumption of innocence. Although the court
rhetorically used the `beyond a reasonable doubt' standard, in reality it fell
considerably short of this and the `innermost conviction' standard required in
Iraqi criminal trials.
4. Conclusion
The Dujail trial was an opportunity to provide a new paradigm of Iraqi justice,
based on the rule of law. But despite good intentions ç and genuine efforts by
many judges ç the proceedings were marred by political interventions that
damaged the Tribunal's independence and undermined the final result.
Fairness and credibility were tainted by a host of political, capacity and
procedural issues: many intensified sharply after the Tribunal's leadership
changed in mid-2006. While the security situation in Iraq contributed to
many of the Tribunal's problems, they did not determine the issues discussed
in this article. Even given its very difficult operating environment, the IHT
could have and should have done better. And the botched execution of
Saddam Hussein undid in moments what the trial chamber had laboured
hard to achieve.
60 Dujail Trial Judgment, supra note 36, at 248.
61 According to the IHT statute all accused are presumed innocent until proven guilty. IHT
Statute, supra note 3, Art. 19(2).
62 English-language commentators have been confused over the burden of proof the Tribunal
would be relying upon to support its findings. This confusion stems from an error in a widely-
circulated English version of the Iraqi Criminal Procedural Code, in which`conviction' (iqtin'a) is
mistranslated as `satisfaction'. See Iraqi Law on Criminal Proceedings (No. 23 of 1971), Art.
213(A). Tribunal judges stated at the opening of the Dujail case that they would be using the
standard civil law burden of proof of intime conviction du juge. However, to make the matter
more confusing, in the Arabic written judgment the trial chamber has in fact used the language
of `beyond reasonable doubt'. For examples of the court's use of reasonable doubt language see,
Dujail Trial Judgment, supra note 36, at 53, 65, 99, 104, 188, 215, 230, 246, 261 and 277.
14 of 15 JICJ (2007)
The key now is to ensure that the failures of the Dujail trial are not repeated.
Many may look to the Tribunal's second trial, al-Anfal, for a more satisfactory
and robust result. The Tribunal plans numerous other trials to come. The
failures in capacity and political interference at the IHT have significant
consequences for internationals as well as Iraqis. Both still have a lot
to learn about assisting or conducting impartial, fair and successful
prosecutions of international crimes at the domestic level. It is vital that
Iraqis and internationals absorb the lessons of the Dujail trial, and ensure
that all its hopes and efforts count for something. The stakes are too important
not to try.
Was the Dujail Trial Fair? 15 of 15