Over the last 100 years of world history, more people have been killed, tortured, and victimized than ever before. Totalitarian regimes had a unique capacity to establish their rule in certain countries of the world. Dictators created flourishing state machines that subjugated civilians in all possible ways. At the same time, the international public, though explicitly expressing its concern, was unable to influence foreign regimes due to the lack of the established system of international law. Only recently, world organizations like the UN and NATO, as well as separate developed countries like the USA and the United Kingdom of Great Britain, began an active intrusion into international affairs concerning the most obvious cases of crimes against humanity and other atrocities that are an integral part of any dictatorial regime. These cases are widely publicized in order to warn off possible tragedies in the future. However, these cases are strived to be resolved in a civilized manner. Therefore, trials are held and tribunals are established. International justice has become “as much a social and cultural process as it is a legal and political one”, yet it is not faultless as “it takes place at the intersection of the often contradictory practices of petitioners, litigants, bureaucrats, lawyers, victims, witnesses, accused, judges and the third parties”.
Saddam Hussein’s regime, the war in Iraq as well as his following trial has been in the center of media and experts’ attention for such a long time that there is hardly a person in the world, who has no idea about these phenomena. The trial of Saddam Hussein in the Iraqi High Tribunal is an essential step in the history of international justice. It was conceived as a mechanism for the new Iraqi government to make amends for the atrocious crimes of the overthrown regime, establish and promote new democratic and law-based principles among the population, and prove its supremacy over the former dictatorial regime. The trial was intended to become a promising start for establishing and building drastically new legislative and justice systems. The Iraqi officials wanted to demonstrate their capability to admit the mistakes of the past and to seek appropriate justice for the unlawful conduct of Saddam Hussein’s government. The equality of all citizens under the law should have become one of the achievements of the trial. Moreover, the trial sought to bring peace to victims and hope for an end of the state-sanctioned impunity. Successfully conducted trial of Saddam Hussein and his 11 top-rank governmental officials in the Iraqi High Tribunal would have assisted in the country’s emergence “from a history of severe political violence and grave human rights abuses”, in strengthening “the new state’s legitimacy by publicly fulfilling its obligations to victims and their families”, and created “an unequivocal and detailed public record of events”. The geopolitical situation in Iraq was further complicated by the fact that it was at that time an occupied territory by the Allied forces under the international conventional law. Every political actor persecuted its own agenda while setting up the Iraqi High Tribunal and publicly trying Saddam Hussein and his accomplices. Some of the lofty goals proclaimed at the beginning of the whole trial process were achieved while others failed on an epic scale.
This paper supposes that the trial of Saddam Hussein was a modest success that, however, fell short of the high ideas set when the project was conceived. The purpose of this paper is to review the trial both from academic and insider perspective as well as to compare other modern equivalent trials. This comparison will serve to illuminate the challenges faced by the court and missed opportunities. It will be endeavored to probe the gaps between the proclaimed lofty ideals and the reality of the events that unfolded. The trial of Saddam Hussein will be, first of all, compared with the trial of Slobodan Milosevic at the International Criminal Tribunal for the Former Yugoslavia at The Hague and the trial of the Khmer Rouge government in the Extraordinary Chambers in the Courts of Cambodia. These two trial processes seem to be the most relevant and appropriate for the comparison as they happened relatively within the same timeframe and were aimed at trying former leaders of the country for similar crimes. The discussion will be furthered by a brief look at the Nuremberg processes, the cases brought against Hosni Mubarak, and the International Criminal for Rwanda. However, taking into account the constraints of the paper, it is impossible to conduct a comprehensive and large-scale comparison of all these cases. Due to this delimitation, the latter three trial processes will serve primarily the function of complementing the initial comparisons. Methods used in the conduct of the research include the search for relevant information from credible sources and compilation of it. All the cases under consideration were much-publicized, which constitutes a major difficulty in distinguishing credible and valid facts from rumors and outright lies. This way, the abundance of information served to distract from the most essential facts. Besides, the case of Mubarak Hosni was highlighted by the media, yet the court materials in English remained unavailable. In order to conduct thorough research, the paper aims to look also at the trials from the insiders’ perspective. Thus, interviews with close observers of the trials, court materials, and officials’ reports are going to be analyzed for a better understanding of the cases. The practical part of the paper comprises the analysis of the trials and their comparison in terms of the most significant aspects. Moreover, this paper will try to find out the gap between the proclaimed lofty goals of the trial of Saddam Hussein and the reasons why this gap emerged. Both failures and successes of the Iraqi High Tribunal will be researched as well.
The paper may be roughly divided into three large parts that aim at researching various aspects of the topic. The first part will be focused on the Iraqi High Tribunal, a short history of its emergence, its structure, and its mandate. The IHT Statute will be analyzed as it is the basis of its functioning capacity and is claimed to be the roots of the following court shortcomings. An essential subsection of this part will be dedicated to legal, social, and moral goals set before the IHT and how they were either achieved or failed. It will be done with reference to the main actors of the trial, their goals and motivations, and their influence on the whole process. Subsequently, this court will be compared with the ICTY and the ECCC as well as the ICTR and the court trying Hosni Mubarak. Nuremberg’s process will serve as the basis for the comparison as it is the first international tribunal that partially succeeded in its goals. Other international trial processes of the I World War and II World War will not be mentioned due to their temporal remoteness and comparatively diminished contribution to the domain of international justice.
The second part of the paper deals with the Dujail trial itself, its narrative, and court processes. It will be done in order to contrast the reality of the trial to the lofty goals that it initially was established to achieve. The operational and legal shortcomings of this trial will be compared to other similar cases with the focus on the ICTY and the ECCC. The possible ways to avoid these failures as well as to compensate for their consequences will be offered in the final subsection of this part.
The third part will be focused on the missed opportunities of the trial of Saddam Hussein. It will be researched why these opportunities were missed and how the trial actors could have avoided major failures. The goals and outlines of the IHT will be contrasted with the actual achievements of the court with Saddam Hussein in the docket. Finally, the paper will attempt to research the legacy of the Iraqi High Tribunal in Iraq, in the Arab world, and in the international arena concerning the crimes against humanity. This way, the Iraqi legacy will be analyzed from three perspectives – on the local, regional, and global levels. The regional comparison will be relevant and interesting to conduct with the court of Hosni Mubarak in order to find out how similar cases are handled in the Arab world.
All the above-mentioned trials prosecuted the defendants for the crimes against humanity among other charges like genocide and mass killings. The problem concerning the CAH is that they are interpreted with slight, yet significant variations by different international laws and conventions. In the case with the IHT, the situation was complicated by the absence of the legislative basis in the national law system that would enable to lay accusations against Saddam Hussein and his 11 Ba’ath accomplices in terms of the CAH. Moreover, Iraq has not ratified the Geneva Convention, thus it could not have applied its charters as well as the precedents of the international justice to try the defendants. The paper will look at why similar problems arise and how they are solved by the tribunals. Moreover, three main types of existing tribunals and their examples from the above-mentioned cases will be briefly outlined in order to grasp the main differences and commonalities of these courts. The paper will attempt to define why each country has chosen a different type of tribunal and how the type of tribunal corresponds to the proclaimed goals. The focus will be primarily on the IHT and Saddam Hussein’s trial, but it seems relevant to compare his case in this respect with the ICTY, the ECCC, the ICTR, and the trial of Hosni Mubarak. Their correlation with the International Criminal Court will be mentioned.
The following Nuremberg tribunal provision is applicable to all the cases under consideration: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. The conducted research may contribute to the body of works related to the international crimes against humanity and the functioning of the tribunals. The practical value of the paper is its contribution to the historical record of Iraq and the comprehensive study of the most recent trials prosecuting national leaders. The comparison carried out in the research seems useful as the scope of the analyzed literature shows a relative gap in the comparative research concerning the trials of Saddam Hussein and Hosni Mubarak, the ICTY, the ECCC, and the ICTR.
The Historical Context of the Iraqi High Tribunal Formation
The establishment and activity of the Iraqi High Criminal Court commonly referred to as the Iraqi High Tribunal, are considered to be extremely controversial issues that met massive disapprovals and critical remarks from the world community. The Statute, as well as all the sanctions of the IHT, was critically evaluated by such non-governmental organizations as the Amnesty International, Human Rights Watch, and the International Center for Transitional Justice as well as by independent observers and the UN officials. None of them undermined the importance of the IHT for the history of Iraq and for the establishment of the supremacy of the new democratic government. However, they pointed at numerous shortcomings that could have been avoided. Moreover, the IHT faults made them doubt the legitimacy of the whole trial process of Saddam Hussein and his 11 co-defendants. Political influence disabled the IHT to conduct an entirely objective investigation of all crimes of the former regime, thus leading to a missed opportunity to display respect to human rights and to adopt the principal values of the international justice. All the flaws of the trial process undermined its overall importance and diminished its success in bringing the tyrannical government to justice. Therefore, the lofty goals proclaimed as the desirable result of the IHT functioning failed because of the imperfect technical, legislative, and functional operating of the court. Moreover, the situation concerning the legitimacy of the court was further complicated by the verdict that sentenced Saddam Hussein to the death penalty. The world community strongly objected to hanging the former dictator, though no one doubted his uncountable crimes against humanity and his own nation. The United Nations Organization, as well as various human rights organizations, wanted to establish the rule of law on the territory of long-suffering Iraq. They urged the Iraqis not to seek revenge or retribution for all the heinous crimes that Saddam Hussein had committed over the decades, but to seek justice through law-abiding actions. Hanging as the result of the doubtful in terms of legitimacy trial process was not one of the most appropriate methods for the establishment of democracy. Such a rush step of the new Iraqi government turned the figure of Saddam Hussein into an unbreakable and proud leader for some Iraqis, especially the ones of the Sunni Arab origin. Furthermore, foreign armed forces occupied the territory of Iraq and were not going to answer for the atrocities they had committed during the time of the military conflict, which enraged many Iraqis, who did not want other countries to interfere in their national affairs. The societal controversies worsened and threatened to cause the civil war that would lead to a violent confrontation between the Sunni Arabs, Kurds, and Shiites. These faults are fixed in the Statute of the Iraqi High Criminal Court and the geopolitical context of its formation.
The Iraqi High Criminal Court was established, in fact, simultaneously with the ratification of the Iraqi Constitution, though the Statute or, as it is referred to in the Official Gazette, Law No. (10) 2005 Law of the Iraqi Higher Criminal Court was promulgated by the Presidency Council in the session of October 9, 2005. Article 134 of the Iraqi Constitution designates the Iraqi High Tribunal “as an independent judicial body…examining the crimes of the defunct dictatorial regime and its symbols”. However, the independence of the IHT is a relative concept as the same Article gives the Council of Representatives “the right to dissolve it by law”. Moreover, the judges can be transferred between various courts by a governmental decision, which allows a possibility of interference in the IHT functioning. There are as well no cross-references in the Constitution that would explain the notion of an independent judicial body in respect to the Iraqi laws. All these inconsistencies and the temporal gap between the Constitution establishing the IHT and the actual adoption of the IHT Statute imply the haphazard and sloppy character of the IHCC formation and the first questions about its legitimacy arouse.
The Type of the IHT
The issue of what kind of tribunal needed to be established in Iraq was discussed and debated on all levels, from the local to the international one. The final decision was made by the Iraqi officials, who evaluated versatile aspects of three main international tribunal models in order to determine the IHT formation, procedural development, and legitimacy. These three models are the ad hoc ICTY and ICTR models, the International Criminal Court, and the hybrid model. The international influence and opinion were also taken into consideration while applying the positive methods of these models to the new IHT. The choice of the type of court institution that will prosecute people responsible for mass victimization, genocide, and crimes against humanity largely depends on the goals that are to be reached. The choice of the law to be exploited during the trial, either it is international, domestic law, or both, implies the desired goals as well. Therefore, the choice of the forum, its composition, and the applicable law procedures should be based on special considerations that include “the nature and scope of the crime, its impact on that society and the international community, the identity of the perpetrators, and the intended goals of the trial at the national and international levels”. The goals of establishing the tribunal are the following:
disclosing the truth and memorializing history, providing retributive justice and future deterrence, consolidating the rule of law, establishing a legal/moral foundation for a nation’s future, responding to the victims’ needs for establishing the truth, providing punishment for the perpetrators and bringing closure, and, in certain cases establishing the basis for reconciliation between different elements of a society.
In retrospection, the Nuremberg trial was the first International Tribunal aimed at establishing the rule of law with respect to human rights. It set the precedent for the trials involving crimes against humanity. The main aim of the Nuremberg process is manifested in its Principle III: “The fact that a person who committed an act, which constitutes a crime under international law acted by the Head of the State or responsible Governmental official, does not relieve him from responsibility under international law”. The International Criminal Tribunal for the Former Yugoslavia at The Hague was set to indict Slobodan Milosevic, the former president of the Federal Republic of Yugoslavia, for three incidents that fall under the denomination the crimes against humanity that happened between 1991 and 1999. The main goals of this trial were to bring closure to the victims, to reconcile various ethnic groups that resided on the Yugoslav territory, and to remind the national leaders that their crimes would not be left unpunished. The ICTY, in fact, was the first International Tribunal after a long period of the international governmental organizations’ neglect of the crimes against humanity that took place in several countries of the world. The following essential for the international justice step was the International Criminal Tribunal for Rwanda that conceived the goal of making the crimes of the former government known to the public, thus memorializing victims and creating the horrendous, yet the truthful history of the country. The trial of the former leader of Egypt Hosni Mubarak was conducted in the ordinary court, which had been unprecedented for national leaders. The main goal of the trial was to seek justice and retribution. The Exceptional Chambers in the Courts of Cambodia are a hybrid model of the tribunal that is now prosecuting former members of the Khmer Rouge’s regime. The tribunal’s goals are a mixture of memorializing the victims, revealing the crimes, and deterrence of the criminals. The situation in Cambodia is complicated by the active government’s interference as well as some other factors that will be expanded further in the paper.
The Iraqi government had to decide which model to adopt in order to suit the unique situation of the country in the best possible way. There was no need to reveal or publicize the crimes of Saddam Hussein and the ruling Ba’ath Arab Socialist Party as they were well-known all over the world. The Iraqi government wanted to establish the supremacy of the new democratic order, to reconcile the nation, and to bring justice. Besides, the choice of the tribunal is largely predetermined by the cultural background of the nation. Iraqis are proud people who highly value such notions as honor and dignity. The imposition of the foreign powers of their vision of the trial of the vicious, yet prominent leader like Saddam Hussein and his extradition to some other country may have been regarded as an unjustified intrusion into the Iraqi domestic affairs, especially under the circumstances of the past occupation and the rough process of new state order formation.
The USA was the proponent of trying Saddam Hussein and his accomplices in Iraq with the active involvement of international experts. However, this opinion was voiced only after a successful occupation of Iraq by the Allied forces. Prior to that, the U.S. House of Representatives urged the President in their Concurrent Resolution of 1998 to “call for the United Nations to form an international criminal tribunal for the purpose of prosecuting, indicting, and imprisoning Saddam Hussein and any other Iraqi officials, who may be found responsible for crimes against humanity, genocide, and other violations of international humanitarian law”. However, President Bush was convinced that the trial of Saddam Hussein should take place only in Iraq and by the court comprised of the Iraqis. Nonetheless, he supposed that international assistance and expertise would be valuable assets in establishing the IHT and conducting the trials. This international assistance, however, turned out to be intrusive and causing misunderstandings as the experts were not very knowledgeable about the customary laws and judicial system of Iraq. The nature and influence of international assistance will be expanded further in the paper. The international organizations like the UN and NGOs like the Human Rights Watch and the International Center for Transitional Justice advocated for the creation of an ad hoc international tribunal on the sample of the ICTY and ICTR, as they were worried about the inability of the Iraqi judicial system to conduct the trial inappropriateness with all international laws. Although they did not doubt the competence of the Iraqi investigative judges, they pointed out that the country was behind the rest of the developed countries in terms of legislative and judicial systems due to their stagnation under the dictatorial regime. However, the Iraqi officials agreed upon establishing the domestic tribunal with international assistance. All members of the Tribunal were to undergo intensive training in terms of the latest achievements in the sphere of crimes against humanity and other jus cogens laws. Judges were consulted by experts, former members of the ICTY and ICTR, and other specialists during the training sessions that took place in London, Rome, Syracuse, and some other cities. The task of the support the IHT’s operational endeavors and investigation until the local capacity would correspond to the international standards was delegated to the Crimes against Humanity Investigations Unit of the Office of Human Rights and Transitional Justice of the Coalition Provisional Authority.
Furthermore, the decision to establish the domestic tribunal agreed with the mood of the local population. The survey of the wishes prevalent among the Iraqi citizens was conducted by the International Center for Transitional Justice in collaboration with the Human Rights Center at the University of California at Berkeley in July and August in 2003. The majority of the population believed that the leadership of the former ruling regime should face trial for their crimes on the territory of Iraq and under the Iraqi control. They emphatically rejected even the possibility of the trials being dominated by a foreign state or international community. Their wish was granted, though the officials, in fact, did not research the national opinion of this issue. However, a great number of the shortcomings and complicated aspects concerning the IHT functioning made the population disappointed in the national judicial system and in the new government’s policy. Such a squalid situation could have been averted if the establishment of the IHT was not so rush, but on the contrary more elaborated and thought-through.
The Statute of the IHT
The Statute of the IHT was published in the Official Gazette of Iraq al-Waqai’ I al-‘Iraqiya and thus made legitimate on October 18, 2005. This Statute, as well as the whole formation process of the IHT, raised numerous suspicions among the international public. Partly, a skeptic and mildly negative attitude to the just established IHCC was called by the political situation in the country and the Iraqi Special Tribunal. The IST is considered to be the predecessor of the IHT and the main basis for its foundation. The activity of the IST was questioned in terms of objectivity and legitimacy as it was established by the U.S.-appointed Iraqi Governing Council on December 10, 2003, and approved by the Iraqi Transitional National Assembly on August 11, 2005. However, the Statute of the Iraqi Special Tribunal for Crimes against Humanity states in Article 1 (a) that “The Tribunal shall be an independent entity and not associated with any Iraqi government departments”. The impartiality of the IST was often questioned, and there were even claims that its activity was orchestrated by the U.S. government. Originally, the IST was administered by Salem Chalabi, who had to set up the organization and structure of the IST, select and vet sitting judges, prosecutors, and investigative judges. Nevertheless, his appointment had “an adverse effect on the perception of the IST in Iraqi and Arab public opinion” as he was associated with his uncle with the Bush administration.
Retrospectively assessing the establishment of the IST, it becomes obvious that its perception was misguided by the fact that it happened during a foreign occupation, thus inevitably undercutting both foreign and national trust and support for the IST. This miscalculation could have been averted if the IST was established on the grounds of the existing national laws and after the temporary U.S.-appointed government returned the seals. Nonetheless, IST is a crucial step in the development of the Iraqi judicial system. It was a forerunner of the IHT that predetermined a significant part of its Statute and the operational policy.
The IST Statute was issued on December 10, 2003, and comprises a totally of 38 articles subdivided into 11 sections. According to Article 1 (b), “The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 to 14 below, committed since July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the State of Kuwait”. The shortcomings of the IST Statute were widely challenged and considerably improved before the adoption of the Statute of the IHCC.
Although the adoption of the IHCC Statute was aimed at dissolving any questions about the IHCC’s legitimacy, its interrelation with the IST Statute raised more controversies. Article 38 states that “decisions and Orders on Procedure issued under the Iraqi Special Tribunal Law No.1 for the year 2003 are correct and conform to the law”. Legal experts suppose that though it would be formalistic, it would be relevant to re-appoint all judges and re-adopt all IST resolutions in order to affirm its legitimacy.
The IHT Statute or Law No. 10 of the Iraqi Higher Criminal Court was adopted on October 9, 2005, and came into force on the date of its publication in the Official Gazette. It comprises 10 sections and 40 articles, the content and legislative justification of which are a considerable improvement of the IST Statute. Article 1 reaffirms the provision of the Constitution that the IHT is a completely independent judicial institution. Article 3 (1) defines the structure of the IHT that should consist of a Cassation Panel, one or more criminal courts, and investigative judges. Jurisdiction of the IHT is defined in Article 1 (2) that states the Court’s power over every natural person whether Iraqi or non-Iraqi resident of Iraq and accused of one of the crimes listed in Articles 11 to 14 below, committed during the period from July 17, 1968 and until May 1, 2003, in the Republic of Iraq or elsewhere, including the following crimes: A. The crime of genocide; B. Crimes against humanity; C. War crimes; D. Violations of certain Iraqi laws listed in Article 14 below.
This article of the IHT Statute, as well as many other ones, became the center of the public discussions concerning their legitimacy and justification in the domestic legislative system of Iraq, which will be discussed in detail in further subsections of Chapter 1.
One of the essential issues concerning the Statute was language, which was regulated by Regulations of the Coalition Provisional Authority. According to CPA Order No. 48, the IST Statute had to be promulgated in Arabic and English. Moreover, CPA Regulation No.1 proclaimed that “in case of divergence, the English text shall prevail”. It clearly violated the preceding Iraqi Constitution and Article 34 of the IST Statute that explicitly established Arabic as the official language of the Tribunal. Besides, it led to confusion in the designations of the IST that received a slightly different nomination in the process of back-translation from English into Arabic. The language provision undermined the authority of the Iraqi institution favoring the occupants. This infirmity was eliminated after the adoption of the IHCC Statute. Article 34 designates Arabic as the only official language of the Court.
On the whole, despite being an improvement of the IST Statute, the IHCC Statute has several inconsistencies, obvious technical mistakes as well as shortcomings, and positive aspects that will be discussed further in the paper together with the legislative basis of the IHT functioning and its correspondence to the judicial principles and norms of the international justice.