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I. Introduction

On December 30, 2006, the government of Iraq put former President Saddam Hussein to death by hanging, in an execution widely condemned for its sectarian overtones and disorderly implementation.¹

The crimes for which the government executed Hussein relate to the aftermath of an attempt on his life during his visit to the town of Dujail on July 8, 1982. The prosecution claimed that, soon after the assassination attempt and in retaliation for it, Dujail was the object of a “widespread and systematic attack” in which security forces detained over 600 men, women, and children, and tortured an unspecified number. After a year of detention in Baghdad, the authorities transferred approximately 400 detainees to internal exile in a remote part of southern Iraq and referred 148 men and boys to trial before the Revolutionary Court. The court convicted and sentenced them to death in 1984, after a summary trial. Of these 148, as many as 46 died in detention between 1982 and 1984. The government executed most of those who survived detention in 1985. The authorities seized large swathes of agricultural property in Dujail and bulldozed homes.

Saddam Hussein was executed pursuant to a death sentence imposed by the First Trial Chamber of the Iraqi High Tribunal (IHT) on November 5, 2006, after it found him guilty of crimes against humanity against the population of Dujail.² The IHT’s Appeals Chamber upheld the conviction and sentence on December 26, 2006.³

Also convicted and sentenced to death in the same case were Saddam Hussein’s half brother Barzan al-Tikriti and former Chief Judge of the Revolutionary Court ‘Awwad al-Bandar.⁴ Their convictions and sentences were similarly upheld by the Appeals Chamber. Former Vice-President Taha Yassin Ramadan was initially sentenced to life imprisonment, but was later sentenced to death after the Appeals Chamber remitted his sentence to the trial chamber for more severe punishment; the trial chamber complied and imposed the death sentence, without giving further reasons.⁵ Al-Tikriti and al-Bandar were executed on January 15, 2007, in a procedure that was marred by the apparently inadvertent decapitation of al-Tikriti, and Ramadan was executed on March 19. Three lower-level defendants⁶ were convicted of aiding and abetting crimes against humanity and sentenced to 15 years’ imprisonment each. One defendant, Muhammad ‘Azzawi, was acquitted at the request of the prosecution.

The executions, and the controversy surrounding them, marked the conclusion of a criminal proceeding that failed to ensure the essential fair trial guarantees provided for in international human rights law. In a lengthy report issued in November 2006,⁷ Human Rights Watch documented deep institutional dysfunction at the IHT and fundamental procedural flaws in the Dujail trial, including:

• government actions that undermined the independence and perceived impartiality of the court;
• a failure to ensure adequately detailed notice of the charges against the defendants;
• numerous shortcomings in the timely disclosure of incriminating evidence, exculpatory evidence, and important court documents;
• violations of the defendants’ basic fair trial right to confront witnesses against them; and
• lapses of judicial demeanor that undermined the apparent impartiality of the presiding judge.

In addition, Human Rights Watch concluded that the substantive case presented by the prosecution and investigative judges suffered from gaps that indicated an inadequate understanding of the elements of proof required to establish individual criminal responsibility under international criminal law.

Human Rights Watch’s interest in the fairness of the proceedings stems from its commitment to justice for the victims of grave human rights violations under the former Ba’thist government. Human Rights Watch has long demanded the prosecution of senior figures in the former government, including Saddam Hussein, and has documented some of the worst atrocities committed under the former government.⁸ The first trial was an unprecedented opportunity to begin the process of creating a historical record concerning some of the worst cases of human rights violations, and to initiate a methodical accounting of the policies and decisions that gave rise to these crimes. But in order for this record to be credible, and to be able to refute the arguments of those who in the future might deny the crimes or individual responsibility of former officials, the IHT had to ensure the fairness and impartiality of its proceedings and judgments. Trials that meet international human rights standards of fairness will be more likely to ventilate and verify the historical facts at issue, contribute to public recognition of the experiences of victims of different religious groups and ethnicities, and set a more stable foundation for democratic accountability after periods of conflict or repression. The necessity of fairness and credibility in the proceedings and judgment was made all the more pressing by the intensifying polarization and sectarianism of Iraqi politics, after the beginning of the trial in October 2005.

Regrettably, the proceedings in the Dujail case failed to meet this legal and historical test. The serious procedural flaws that Human Rights Watch documented in the Dujail trial cast doubt on the soundness on the trial chamber’s verdict. Moreover, the implementation of death sentences after such an unfair trial is indefensible, as well as a violation of the right to life guaranteed by article 6 of the International Covenant on Civil and Political Rights.⁹ The hope that the trial might have served as a model of impartial justice for a “new Iraq,” by upholding international human rights law and enforcing international criminal law, remains unfulfilled.

This briefing paper completes Human Rights Watch’s scrutiny of the Dujail proceedings. The paper reviews the written judgments of both the First Trial Chamber and the Appeals Chamber, with a view to evaluating the application of and compliance with the international criminal legal standards it was mandated to enforce. While the IHT is constituted as an Iraqi court, its statute mandates it to interpret offenses defined in contemporary international criminal law—such as crimes against humanity, war crimes, and genocide.¹⁰ The defendants in the Dujail case were uniformly charged with crimes against humanity rather than offenses drawn from domestic Iraqi law. Thus, whether the international criminal legal principles were appropriately understood and applied, and whether the requisite evidentiary standard required under international law was met, are crucial to the soundness of the court’s verdict. On this depends the ultimate determination of whether the court can be a vehicle for a true testament to the appalling crimes that occurred, or rather, in the long run will fail to do the victims justice.

Based on its review of the decision,¹¹ and deep familiarity with the dossier of evidence and the conduct of the case, Human Rights Watch concludes that the trial judgment made substantial factual and legal errors that open the basis of the convictions to serious question in all but one case.¹² Moreover, in the judgment the evidentiary basis of certain key factual findings is so weak that the decision cannot be regarded as a credible historical record of either individual criminal responsibility or the bureaucracy of repression of the Ba’th government. The cursory and inadequate review conducted by the Appeals Chamber failed to correct these errors and, in fact, compounded them by misstating several essential legal principles.

This briefing paper, in considering key substantive and procedural findings by the trial chamber and Appeals Chamber, does not address every legal and factual issue, but rather focuses on the most serious errors—those that serve to undercut the soundness of the judgment. These errors arise from a misunderstanding and misapplication of international criminal law principles governing the knowledge and intent of the defendants, and also in respect of findings of fact concerning their knowledge and intent. The paper sets forth some discussion of relevant legal principles to put the evidentiary shortcomings into the proper context. As discussed below, these errors appear closely connected to the failure of the investigative judge and prosecution to present evidence that was essential to establish knowledge and intent in the manner required by international criminal law.

The judgments in the Dujail case represent a lamentable landmark in a process where the warning signals of problems were there from the beginning, but largely ignored. The Iraqi government and its United States backers have squandered a unique chance to deal fairly and credibly with the most senior leadership of the former Iraqi government, and have put in jeopardy the likelihood that the process or the outcome will stand the test of time. In an often-quoted speech, Nuremberg Chief Prosecutor Robert Jackson warned, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”¹³ Sadly, both the government of Iraq and the IHT seem to have proved unable or unwilling to heed this warning.