Bush is Critical of Hangings in Iraq

Following British Prime Minister Tony Blair's condemnation of the hanging of Saddam Hussein and his co-defendants, President Bush offered his strongest criticism of the executions during an interview with PBS Newshour host Jim Lehrer on January 16:

"I was disappointed and felt like they [the Iraqi government] fumbled the - particularly the Saddam Hussein - execution. It reinforced doubts in people's minds that the Maliki government and the unity government of Iraq is a serious government, and - which makes it harder for me to make the case to the American people that this is a government that does want to unify the country and move forward. The Saddam execution, however, was an important moment in some ways because it closed a terrible chapter and gives the unity government a chance to move forward...[I]t looked like it was kind of a revenge killing. And it sent a mixed signal to the American people and the people around the world. And it just goes to show that this is a government that has still got some maturation to do."

The Trial and Execution of Saddam Hussein

I was interviewed on the Detroit talk radio program "The Advocate." During the 40 minute interview we discussed the trial of Saddam Hussein and his execution.

The full program can be found here , my part starts at the 23 minute point.

Saddam Execution Leaves Kurdish Story Untold

The execution of Saddam Hussein by hanging today in Baghdad could bring to a close the troubled proceedings of the Iraqi High Tribunal. Originally designed by U.S. occupation forces as the Iraqi Special Tribunal and subsequently renamed by the Iraqi government, the IHT was set to try Saddam for seven discreet crimes including the genocide of the Kurds, destruction of the Marsh Arabs, and multiple mass atrocities. But it was his conviction for the 1982 massacre of 148 Shi'ites from the opposition Dawa party in the town of Dujail that ultimately drew the death sentence and sealed the former Iraqi president's fate. Under Iraqi law, death sentences must be carried out within 30 days of a final appeal, and the appellate court in Saddam's case confirmed his death sentence this week.

The decision not to try Saddam before an international tribunal, but rather before an Iraqi court in occupied Baghdad, brought with it many complications. First, because the court was established by the U.S., subsequently blessed by both the governing council and iterim government, then embraced by the elected Iraqi government without any significant changes, it never enjoyed the gloss of legitimacy that a domestic independent national court should have. Moreover, due to the aggressive de-Ba'athification policies of the U.S., higher level judges were removed from service, leaving only less-qualified lower-level judges to contend with sophisticated defense counsel, complex international legal charges (war crimes, crimes against humanity, and genocide) and an unruly group of former tyrants. Thus, the IHT was ill-equipped to handle the trials on its docket from the outset.

Once the Dujail trial began, the IHT proved incapable of guiding the proceedings in a fair and unbiased manner. The Chief Judge resigned in disgust amidst charges of government interference with the court's independence midway through trial. Multiple defense counsel and associated personnel were gunned down in the streets, and some fled to Jordan in fear for their lives. The unstable security environment also hampered defense counsel's ability to investigate and test evidence offered by the prosecution, which only had to meet a satisfaction of guilt standard by the IHT as opposed to a "beyond reasonable doubt" standard used by international criminal tribunals.
And human rights groups, no friend to Saddam while he was in power, nevertheless uniformly condemned the IHT trials as unfair, specifically noting a lack of familiarity with international criminal law on the part of Iraqi lawyers and judges despite the fact such crimes were being charged and the extensive use of anonymous witnesses, thereby limiting defense counsel's ability to adequately counter the evidence against their clients.

So what happens now? Only one of the seven trials has been completed. Saddam was in the middle of the Anfal trial for the genocide perpetrated against the Kurds in northern Iraq during the end of the Iran-Iraq War. Because the IHT was trying Saddam's crimes sequentially instead of together, five other trials have yet to begin. The IHT's options are to end the trials of Saddam now, or continue to try Saddam posthumously. Either way, the outcome is less than optimal. Ending the trial process truncates exploration of the full guilt of Saddam Hussein for his crimes. But continuing the trial posthumously would be a one-sided affair, disallowing a vigorous and active defense the ability to test the truth of the evidence presented. Moreover, from the perspective of the victims, Kurds will be seen as not receiving justice while Shi'ites (victims in the Dujail trial) did. This would be especially true from the storytelling standpoint, which is key to national healing and reconciliation after long periods of traumatic rule by ruthless despots.

The Iraqi government should have stayed Saddam's death sentence until the completion of the trials against him, or at least until the completion of the Anfal trial for genocide, not only as a matter of justice for Iraq's Kurdish population, but because there are many aspects of genocide that remain unsettled. What the IHT may contribute to the small canon of genocide cases since Nuremberg is potentially significant. For instance, the question of whether ethnic cleansing constitutes genocide continues to be debated within the academy. Ethnic cleansing was a central aspect of Saddam's Anfal campaigns against the Kurds. Moving the Kurdish population out of the area around the oil fields and repopulating those areas with Sunni Arabs occurred relentlessly during this time frame. Kurds in northern Iraq are now dealing with the problem of resettled Arabs in traditionally Kurdish lands because of that ethnic cleansing. A judgment on whether this is genocide would be extremely helpful in the development of the law of genocide, even it comes from a somewhat flawed tribunal.

Consequently, although the great tyrant is dead, his trial should continue - even if posthumously, on the question of guilt for the Anfal campaigns. His co-defendants in that trial will remain co-defendants, but his counsel should remain at table. The law that will come out of it is important, and the quality of the trial, such as it is, will only be heightened if Saddam's more sophisticated counsel remain in the game instead of leaving it to the counsel of his co-defendants alone. Moreover, Iraq's Kurds deserve to have their victimhood, and Saddam's role in it, as legally recognized as the Shi'ite population. To be sure, the full extent of Saddam's atrocities will not be as completely appreciated as if he physically stood trial for all his crimes. But at least by letting the Anfal trial move forward, the IHT would finish some of what it started.

Professor Kelly is author of the book "Nowhere to Hide: The Trials of Slobodan Milosevic and Saddam Hussein" (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from L'Association Internationale du Droit Penal.

Spanish Judge Dismisses Argentine Genocide Case

A Spanish judge has ruled that Spain lacks jurisdiction to try a former Argentine official on charges of genocide committed during the reigh of the juntas in Buenos Aires. Here's the latest from BBC News:

Dec. 20, 2006
Spain rejects 'dirty war' trial

Ricardo Cavallo has been in custody in Madrid since June 2003Spain has ruled against trying former Argentine junta officer Ricardo Cavallo on human rights charges but invited Argentina to call for his extradition.
The high court in Madrid decided it had no jurisdiction over Mr Cavallo, who has been in Spanish custody since 2003.
Argentina has not yet commented. The ex-naval commander is facing genocide and terrorism charges, which he denies.
Up to 30,000 people are said to have been killed or disappeared in Argentina during the "dirty war" of 1976-1983.
Ricardo Cavallo served at the notorious Navy School of Mechanics in Buenos Aires, a detention centre in which hundreds of people were tortured and killed.
At least 614 people were held at the navy school during the military campaign against left-wing insurgents. Many were drugged and thrown from aircraft into rivers and the sea.
Immunity
Mr Cavallo was extradited to Spain from Mexico in June 2003, and Spanish prosecutors had requested up to 17,000 years in prison for the death and torture of Spanish citizens.
Military officers who carried out the human rights abuses were granted immunity from prosecution in Argentina under laws passed soon after the return to democracy.
However, Argentina's Supreme Court repealed the laws in 2005, paving the way for possible criminal proceedings.
Under the Spanish ruling Argentine authorities have 40 days to request Mr Cavallo's extradition.
Spain has been investigating violations by former military regimes in Argentina and Chile for more than a decade under a legal doctrine that allows prosecution of crimes like terrorism even if they are alleged to have been committed elsewhere.
In April 2005, another former military officer from Argentina, Adolfo Scilingo, was sentenced in Spain to 640 years in prison for crimes against humanity.

Dujail Opinion in Saddam Trial Released...

From Professor Michael Scharf:

On December 4, 2006, the Iraqi High Tribunal publicly issued the long-awaited English translation of its Opinion supporting the November 5 Judgment in the Dujail Trial – the first trial of Saddam Hussein and seven co-defendants. Available at:
http://law.case.edu/saddamtrial/dujail/opinion.asp .

The Dujail Opinion is extraordinary in a number of respects, not the least of which is its length -- 298 single-spaced pages -- and the surprisingly detailed factual findings and sophisticated legal analysis that it contains.On November 20, two days before the Iraqi High Tribunal posted the Arabic version of the Dujail Trial Opinion on its Website and provided it to the Defense Counsel and Prosecutors in hard copy, one of the world’s foremost human rights NGOs, Human Rights Watch, issued a 97-page report, concluding that the “proceedings in the Dujail trial were fundamentally unfair” and that “the soundness of the verdict is questionable.”The Human Rights Watch Report was authored by Nehal Bhuta, HRW's Arthur Helton Fellow who had observed parts of the trial and interviewed defense counsel and other trial participants (not including the presiding judges).

As a disclaimer, let me begin by acknowledging that I am a huge fan of Human Rights Watch. Case School of Law’s Frederick K. Cox International Law Center, which I direct, has a special relationship with the NGO under which every year two of my best students get to spend the summer as legal interns at the Human Rights Watch Offices in New York and DC. And the Executive Director of the NGO, Ken Roth, is scheduled to deliver the “Klatsky Endowed Lecture in Human Rights” at Case on February 13, 2007.

Although there are many valid observations and excellent recommendations contained in the November 20th Human Rights Watch Report, the subsequent issuance of the Dujail Trial Opinion indicates that the NGO should have followed the age-old adage -- “Never judge a book by its cover.” In other words, because it did not wait to analyze the actual Opinion of the Dujail Case, the broad conclusion of the Human Rights Watch Report turned out to be premature and largely unfounded. Below, I will briefly indicate a few of the ways the Dujail Opinion sheds new light on the overall fairness and integrity of the Saddam Trial.

The Standard of Proof

On numerous occasions during the Dujail trial, Human Rights Watch and other critics of the Tribunal publicly decried the fact that the Tribunal’s Statute and Rules do not require it to find “proof beyond a reasonable doubt.” Well, it turns out that the Tribunal did in fact employ the “proof beyond a reasonable doubt” standard -- the phrase is used in the opinion over two-dozen times.

Disposition of Defense Motions

The Human Rights Watch Report harshly criticized the Tribunal for not transparently resolving the Defense’s pre-trial motions. While my writings, too, have urged the Tribunal to issue written decisions on procedural motions as they arise, I have also noted that the Iraqi legal tradition is to handle such issues in the final written Opinion of the Trial Chamber and that such an approach does not violate international due process standards. The first 54 pages of the Dujail Opinion are devoted to the Defense pre-trial and trial motions, including (1) the challenge to the death penalty in light of the fact that the President of the Coalition Government had suspended it in 2003; (2) the challenge to the legitimacy of the Tribunal in light of the fact that it had initially been established by an Occupying Power; (3) the Defense claim that it did not receive the case dossier and other evidence in a timely manner; (4) the Defense claim that the security conditions and the killing of three defense counsel during the trial rendered the climate inherently unfair; (5) the request for the removal of Judge Ra’ouf for bias; (6) the argument that Saddam Hussein had Head of State Immunity; and (7) the argument that the Tribunal’s Statute constitutes ex post facto law since crimes against humanity were never before recognized in Iraqi law.

While written in a distinctly Iraqi style, the Tribunal does an impressive job of handling these important legal issues, including applying numerous precedents from international Tribunals. The sophistication of the Tribunal’s legal analysis is striking, and I think any objective observer reading these pages would have to disagree with the Human Rights Watch Report’s conclusion that “the level of legal and practical expertise of the key Iraqi actors in the court … is not sufficient to fairly and effectively try crimes of this magnitude.”

The Opinion’s analysis of these Defense motions also indicates how misleading the media reporting has been at times. For example, early in the trial, the media dutifully repeated the Defense claim that Judge Ra’uf was biased against the defendant because he had been sentenced to death by Saddam Hussein and had been the leader of an anti-Bathist organization. Unfortunately, Judge Ra’uf never publicly rebutted this claim during the trial – leaving the impression that the Tribunal’s presiding judge was unfair. The Opinion, however, reveals for the first time that Judge Ra’uf had been arrested and sentenced under the Abdul Salam Aref regime in 1963, which had also arrested and sentenced Saddam Hussein and other members of the Ba’ath party at the same time. Judge Ra’uf was released before Saddam came to power and he practiced law in Baghdad without incident during Saddam’s reign. The so-called anti-Bathist organization Judge Ra’uf established in 1992 was in fact a human rights organization in Kurdistan, which was then an autonomous region that was outside the control of the central government and protected by an American No Fly Zone.

The Opinion acknowledges that statistically nearly all Iraqi civilians had relatives and friends who suffered during the rule of Saddam Hussein and that the Defendants’ antics managed on some occasions to provoke the judge’s ire during the trial. But the Opinion reminds us that the IHT judges had taken an oath to decide the case impartially – a point that other war crimes tribunals have also stressed in explaining why presiding judges should be deemed capable of fairly deciding a case in the absence of actual specific evidence of bias.

Detailed Evidentiary Findings

The Tribunal’s findings of fact are extremely detailed. The Opinion explains why the testimony of certain witnesses was believed and why others were not. It indicates that hearsay testimony was not given much weight; nor was Saddam’s various admissions. The Opinion describes each piece of documentary evidence, and details the steps undertaken to authenticate the signatures of Saddam Hussein and the other defendants on these documents. And it explains that all of the documents considered by the Tribunal were given to the Defense 45 days before the start of the trial. Reading the Dujail Opinion, one can only conclude that Saddam and the other defendants were convicted on the strength of their own records, much like the Nazis were at Nuremberg.

Important Precedents

The Tribunal’s legal analysis explains the theory of criminal responsibility applicable to each defendant and fully examines each of the defendant’s possible legal defenses. From the point of view of establishing a noteworthy legal precedent, two points stand out in the Dujail Opinion.First, Saddam’s main defense was that as a leader, he was entitled to take action against a town that had tried to assassinate him and was populated by insurgents and terrorists allied with Iran at a time when Iraq and Iran were at war. The Opinion details why the actions taken against the town of Dujail and its inhabitants “was not necessary to stop an immediate and imminent danger” and how the actions were disproportionate to the threat. In this way, the Opinion makes clear that there is a line to be drawn in every country’s fight against terrorism, and that Saddam and the other defendants crossed that line.Second, it is noteworthy that the Opinion begins with the case against Awad Al-Bandar, the President of Saddam’s Revolutionary Court, who was charged with using his court as a weapon by conducting an “illusionary trial” and then ordering the execution of 148 villagers of Dujail, including several individuals who were under 18 years of age. Ironically, Al-Bandar was convicted of doing the very thing Human Rights Watch accused the Iraqi High Tribunal of doing – presiding over a trial devoid of due process of law. But the many details of the case against Al-Bandar contained in the Dujail Opinion make it clear how fundamentally different the Iraqi High Tribunal is from Saddam’s Revolutionary Courts. In any event, the legal analysis of the case against Al-Bandar will serve as an important warning to judges in Iraq and elsewhere that they too may face prosecution if they stray from the internationally recognized fair trial requirements. Echoing the Nuremberg-era “Judges Trial,” the Iraqi High Tribunal rejected Al-Bandar’s defense that he “was obliged to do this,” pointing out that he was no “ordinary administrative employee” but “a judge and president of the Tribunal.”

Conclusion

Over the next few days, critics will undoubtedly pick apart various aspects of the Dujail Opinion. The English translation is a bit awkward, the text is redundant, and the prose certainly won’t be compared to the opinions of Oliver Wendell Homes or Learned Hand. But even the harshest critics of the Tribunal will have to admit that it did a competent job writing its Opinion, and that the Opinion does answer many of the questions about the fairness of the process.On December 3, 2006, the Defense Counsel filed lengthy briefs appealing various aspects of the Dujail Judgment and Opinion. These will be considered and a final Appeals Chamber decision issued in a few months. Whatever the outcome, the 298-page Dujail Trial Chamber Opinion accomplished one of the most important goals of international justice. Much like the multi-volume set containing the judgment of the World War II Nuremberg Tribunal that is available at every law library in the world, the Dujail Trial Opinion sets forth a detailed and credible historic record, which may one day play a positive role in the establishment of peace in Iraq.

Michael P. Scharf
Professor of Law and Director
Frederick K. Cox International Law Center
Case Western Reserve University
School of Law
11075 East Boulevard
Cleveland, Ohio 44106
Phone: 216.368.3299
Fax: 216.368.2086
E-mail: michael.scharf@case.edu

New Testimony in Saddam's Genocide Trial...

BBC is reporting new testimony today in the trial of Saddam Hussein for his role in approving the genocide campaign, known as the Anfals, against the Iraqi Kurds in the late 1980's:

Saddam trial hears Kurd witness

Saddam Hussein was sentenced to death earlier this monthA Kurd has testified how he survived a firing squad by Iraqi forces at the resumption of Saddam Hussein's genocide trial in the Iraqi capital, Baghdad.
The deposed leader and six others are on trial over their role in a campaign against the Kurds in the 1980s in which over 180,000 are alleged to have died.
A defence lawyer claims a foreigner gave him a list of witnesses to call.
Correspondents say the court hopes to complete the case before Saddam Hussein is executed following his conviction.
The former leader was found guilty of crimes against humanity for the killing of 148 people in the mainly Shia town of Dujail following an assassination attempt on him in 1982.
He was sentenced to death by hanging on 5 November, but under Iraqi law the guilty verdict is automatically sent to the appeal court.

'Lined up'

The Anfal trial resumed after a two-week break as a curfew imposed on Thursday after deadly car bombings in a Shia area of Baghdad was lifted.
Saddam Hussein and the six co-defendants face charges over their role in the 1987-88 Anfal campaign against ethnic Kurds, many of whom were gassed to death.
All seven defendants were in court, mostly represented by court-appointed lawyers, as some defence lawyers have been boycotting the trial.
The court has heard some harrowing accounts from Kurdish survivors of the operation, which they say was designed to move people from their homes, says the BBC's David Loyn in Baghdad.
The first witness of the day, Taimor Abdallah Rokhza, described how Kurdish villagers were killed.
"There was a trench there and we were lined up and a soldier was shooting at us," the French news agency AFP quoted him as saying.
"Then suddenly it stopped and it was quiet. I was waiting to die and my whole body was covered with blood, and the soldiers went away."
The testimony came as defence lawyer Bedia Araf claimed that either an American or Canadian had come to his house on Sunday night and proposed a list of 30 people to call as witnesses.
Mr Araf said the foreigner claimed to have the power to get his client released or convicted.
The judge expressed impatience, appealing to Mr Araf to provide any list of witnesses, as the court needed time to process them securely.
It is not clear if the Iraqi authorities will wait until the second trial is complete before they carry out the sentence in the first case.
Iraqi Prime Minister Nouri Maliki has said he expects Saddam Hussein to be executed by the end of 2006.

Rumsfeld Sued in Germany on Behalf of Abu Gahreib & Guantanamo Detainees

This just in from Der Spiegel:

Nov. 14, 2006
War Crimes Suit Filed against Former Defense Secretary

A coalition of human rights groups has filed a criminal lawsuit against former US secretary of defense Donald Rumsfeld in Germany, accusing him of war crimes. A first attempt to prosecute him in 2004 failed, but the activists feel they have a better chance this time -- and they have a powerful witness on their side.

It's been a bad few days for former United States secretary of defense Donald Rumsfeld. First he had to fall on his sword after the Republicans lost control of Congress in last week's US mid-term elections. Now a coalition of human rights groups is taking him to court in Germany over alleged war crimes.

Another headache for former US secretary of defense Donald Rumsfeld
The coalition, led by the New York-based civil rights group Center for Constitutional Rights (CCR), filed a criminal complaint against Rumsfeld on Tuesday at the Federal Prosecutor's Office in Karlsruhe, Germany. The complaint calls on the prosecutor to investigate whether high-ranking US officials authorized war crimes in the context of the war on terror.

The complaint is being brought on behalf of 12 alleged torture victims, 11 of whom are Iraqi citizens who were held at the notorious Abu Ghraib prison in Baghdad. The twelfth man is Guantanamo detainee Mohammed al-Qahtani, a Saudi citizen identified by the US as a would-be participant in the 9/11 attacks and held at Guantanamo since January 2006.

After al-Qahtani did not respond to normal questioning, he was allegedly subjected to a regime of aggressive interrogation techniques, approved by Rumsfeld and known as the "First Special Interrogation Plan," which included severe sleep deprivation, forced nudity, and sexual and religious humiliation. Military investigators concluded in July 2005 that al-Qahtani had been subjected to abusive and degrading treatment, although the Pentagon denied he had been tortured.

The human rights groups have not just set their sights on Rumsfeld, though. The suit names 11 other high-ranking US officials, including current US Attorney General Alberto Gonzales, former CIA director George Tenet, and Ricardo Sanchez, the former commander of all US forces in Iraq. They are all accused of either ordering, aiding, or failing to prevent war crimes.

"There crimes are not the work of a few bad apples," said CCR president Michael Ratner. "They were planned and executed at the highest levels of the US government."

CCR and its partner organizations filed a similar complaint in 2004, but it was dropped. They claim the US pressured Germany to drop the case, which was dismissed in February 2005 on the eve of a visit by Rumsfeld to Germany. At the time, then-federal prosecutor Kay Nehm said that there were no indications that the US authorities would "refrain from penal measures" regarding the violations described in the complaint. The activists believe that Nehm's successor, Monika Harms, who took office earlier this year, may be more amenable to their cause.

And they also feel they have more chance of success this time. One reason is new evidence such as documents from the 2005 Congressional hearings on the al-Qahtani case. Rumsfeld's resignation last week may also mean that prosecutors are under less political pressure to shun the case, the activists feel. His resignation also means he can no longer try to claim immunity as a sovereign official from international prosecution for war crimes.

And the human rights groups have an ace up their sleeve: Janis Karpinski, the former commander of Abu Ghraib, will appear as a witness on their behalf.

"Janis Karpinski is the witness," commented Kaleck. "The plaintiffs can and should testify (about) what happened to them, but on the other hand they cannot testify who ordered and enforced the interrogation methods, and who conducted them. You must have someone from the apparatus, and this is Janis Karpinski."

Karpinski , who resigned from the army in July 2005, wants to shed light on the incidents that ended her army career. "I served for 28 years," Karpinski told the Berlin daily Der Tagesspiegel. "I was entirely committed to the army. Then they make me into a scapegoat."

The case is being brought in Germany because under the country's 2002 Code of Crimes against International Law (CCIL), the German federal prosecutor is entitled to prosecute war criminals irrespective of the location of the defendant or plaintiff, the place where the crime was carried out or the nationality of the persons involved.

"In November 2004, we went to Germany because it was seen as a court of last resort, and in 2006 it still is," commented Berlin attorney Wolfgang Kaleck, who is representing the organizations. "There is simply no other place to go except to foreign domestic courts."

The case could not be brought to the International Criminal Court in The Hague because the US is not a member, Ratner said, adding that the case could also not be pursued through the United Nations because of the US's veto power.

"One of the goals has been to say a torturer is someone who cannot be given a safe haven," Ratner said. "It sends a strong message that this is not acceptable."

Ratner admitted it was unlikely that Rumsfeld would ever end up in a German prison. But even if German prosecutors fail to take up the case, Ratner feels renewed media attention to the issue of torture is an end in itself. "We have won a part of this case already," he said.

And even if Rumsfeld gets off again in Germany, Kaleck told the Tagesspiegel he is confident the former secretary of defense will get his comeuppance elsewhere: "If not today in Germany, then Rumsfeld will get problems tomorrow in Spain, or the next day in Sweden."