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Hussein Verdict Near After Trial With 'Serious Shortcomings'

By Ellen Knickmeyer
Washington Post Foreign Service
Saturday, November 4, 2006

BAGHDAD, Nov. 3 -- The Americans serving as legal advisers for Saddam Hussein's trial likened it to the judgment at Nuremberg. But as the trial nears its conclusion, with announcement of a verdict scheduled for Sunday, they admit the reality turned out messier.

From the day the proceedings opened 12 1/2 months ago, spectacle attracted more attention than substance. Images of Hussein's co-defendants coming to court in their underwear and sitting with their backs to judges, and of Hussein himself shouting with his finger perpetually thrust in the air, stole the scene from the aging, downtrodden Iraqis testifying to wrongs done them by their country's former leader.

Outside the courtroom, the onset of sectarian killing between Sunni Arabs and Shiite Muslims, the majority sect that now rules Iraq, made the U.S.-backed quest to convict Hussein increasingly irrelevant for many Iraqis. The alleged crime for which he and seven others were being tried occurred more than two decades ago, in 1982, when an attempt to assassinate Hussein in the Shiite town of Dujail unleashed a lethal campaign of retaliation against its residents.

"What Saddam did to Dujail is the same as this government is doing now," said Naeem Khalid, a 42-year-old taxi driver in Baghdad's Karrada district. "At least what Saddam did was in self-defense."

Nevertheless, when the Iraqi High Tribunal announces the verdict for Hussein and his co-defendants, the ruling will be of tremendous importance, Western legal experts say.

"It was quite a messy trial, as the whole world knows," said Michael P. Scharf, a professor of international law at Case Western Reserve University who advised Iraqi officials during the trial. But "all the arguments about a fair trial are pretty much moot if the evidence is not in question," he added.

The trial is the first of its kind against a former leader to be conducted in his own country, by his own people. As in the Nuremberg trials, when the World War II Allies prosecuted leading Nazi figures for war crimes, world opinion and history will judge whether the new Iraqi government and its U.S. patrons conducted a fair trial or a victor's vendetta.

In addition, Hussein's trial may also set an unintended but potentially crucial legal precedent for the Bush administration, Scharf said. By cracking down on Dujail in response to one assassination attempt and in a bid to discourage others, Hussein was dealing with a continuing threat, like President Bush after the attacks of Sept. 11, 2001, Scharf said.

"The biggest question of our time, that we're living through right now, is where do you draw the line on war in terror? This is the first trial in modern time to address that issue," Scharf said by telephone from the United States.

"It's a question the United States is facing right now in Afghanistan, Iraq, Guantanamo Bay," Scharf said. The findings "are going to be just as applicable to the United States as to Saddam Hussein."

In Baghdad, U.S. officials close to the trial deny that the announcement of the verdict, set for two days before U.S. congressional elections, was timed to give a boost to the Republican Party.

"If we had that kind of power to set dates like that, the trial would have been concluded in about five months," said one of the officials, who all spoke on condition they not be identified further. "The fact of the matter is: No way."

Testimony from more than 80 Iraqis laid out the case over 40 court sessions: On July 8, 1982, while Iraq was locked in a war with both Iran and Shiite rebels allied with Iran, attackers armed with automatic weapons opened fire as Hussein's motorcade toured Dujail. "Bullets were in front of me and here and there," Hussein testified. "It was God who wanted to save me."

The retribution all but wiped out Dujail. Of 148 townspeople charged, all signed confessions -- allegedly under torture -- and were condemned. Mistreatment killed 46 of them before they could be executed. Ten of the 148 were boys ages 11 to 17. The government held them in prison until they turned 18, then hanged them.

Hundreds more townspeople were forced to a remote desert camp, where many men, women and children died. Bulldozers razed Dujail's orchards.

When the Americans led the invasion of Iraq in 2003, they made a priority of prosecuting Hussein, both for the Dujail incident and in larger cases involving alleged campaigns of genocide against the Shiites of southern Iraq and the Kurds of the north. The trial of Hussein and others in connection with the so-called Anfal campaign aimed at exterminating the Kurds in 1988 is currently in progress.

The U.S. government spent $128 million in funds earmarked for Iraqi reconstruction just on exhuming five mass graves, and poured millions more in U.S. funds into renovating the courthouse in Baghdad's Green Zone, training Iraqi court officials and conducting and guarding the proceedings. Preparations included repeat viewings of "Judgment at Nuremberg," a 1961 Hollywood film, Western officials said.

American advisers to the Dujail trial say it was the yellowing files of Hussein's bureaucracy -- execution orders allegedly signed by Hussein, reports held together with straight pins or bound with shoelaces by the officials who prepared them -- that provided much of the evidence linking the defendants with the retaliation in the town. Hussein's own courtroom statements could be equally damning, according to Scharf and the U.S. officials in Baghdad.

"Where is the crime?" Hussein demanded at one point, speaking of his government's confiscation of the orchards.

"I signed that decision," he continued, "and nobody forced me to sign that decision."

"I am Saddam Hussein, and at the time of leadership, I am responsible," he said. Lapsing into the presidential third person, he added, "It is not his habit to rely on others."

What many saw as courtroom antics distracted from the testimony and drew international criticism. Co-defendants frequently stood up in court to declare, "Long live Saddam Hussein!" Hussein repeatedly cursed the tribunal's three judges, the U.S. occupation and U.S. leaders, ordering Bush "to hell with his father."

A co-defendant, Barzan Ibrahim, Hussein's half brother and former security chief, at times attended court in his underwear, turning his back to judges to show his contempt. Tariq Aziz, a witness and once Hussein's top envoy, testified in his pajamas. Hussein staged hunger strikes. He and his fellow accused frequently walked out on or boycotted the proceedings.

At other times, especially as the trial wore on, Hussein could be decorous and easily the most charismatic figure in the courtroom. He bested his prosecutors in pointed exchanges and sometimes expressed sympathy for weeping witnesses, his copy of the Koran always at hand.

Officials in Iraq's Shiite-led government tried several times to rein in the defendants, triggering complaints by international rights groups; Amnesty International, Human Rights Watch and some U.N. agencies all faulted the proceedings.

"Undoubtedly, there have been serious, serious shortcomings," said Richard Dicker, director of Human Rights Watch's international justice program.

The trial's chief judge resigned midway through the proceedings, complaining that Shiite and Kurdish political leaders and officials were pressuring him for being too easy on Hussein. The judge in line to succeed him was blocked by Shiite officials because he had been a member of Hussein's Baath Party. Such intervention "constitutes improper political interference and undermining of the political independence of the court," Dicker said.

Judges allowed prosecuting attorneys to introduce evidence without giving the defense a chance to preview it, something Dicker called "trial by ambush."

As the defense was laying out its own evidence near the end of the trial, the new chief judge, Raouf Rasheed Abdel-Rahman, shut down testimony with some defense witnesses still waiting to take the stand. "We are done with witnesses. . . . If those 26 were not able to make the case, then 100 will not," Abdel-Rahman declared.

The turmoil outside also intruded. Gunmen assassinated three of Hussein's lawyers and other lawyers working for his co-defendants.

"It's fair to say that really the tribunal failed to meet key fair-trial standards in its conduct of this Dujail trial," Dicker said by telephone from New York. The failures, he said, will "put into serious question the legitimacy of the verdict."

If the verdict for Hussein is guilty and the sentence death, the 69-year-old former dictator would go to the gallows. Western analysts differed over whether such an outcome could be supported.

Dicker rejected the idea that Hussein convicted himself with his courtroom boasts. "I was never clear what the scope of the responsibility he was assuming was," Dicker said.

Scharf, on the other hand, described Hussein's statements of accountability as capping the case and called the procedural shortcomings incidental.

A five-judge panel has been preparing the verdicts for months. Charged with capital crimes, in addition to Hussein, are Ibrahim and former vice president Taha Yassin Ramadan; the rest of the defendants were comparatively low-ranking Baath Party functionaries and are believed by observers to have the best chance of acquittal.

Any convictions would automatically go to a nine-judge appellate panel. The panel has unlimited time to rule, but once it does, any sentences must be carried out within 30 days.

Iraq's Defense Ministry announced Friday that it was putting its soldiers on alert and canceling vacations in anticipation of the judges' ruling.

"This is a precaution in case a verdict is issued against the tyrant, no matter what the verdict might be," said Mohammed al-Askari, a ministry spokesman.

Special correspondent Naseer Nouri contributed to this report.

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