By Sudarsan Raghavan
Washington Post Foreign Service
Monday, November 20, 2006
BAGHDAD, Nov. 19 -- The trial of former Iraqi president Saddam Hussein, in which he was sentenced this month to death by hanging, was marred by flaws so serious that they undermined the trial's fairness and called into question the verdict, an international human rights watchdog group said in a report to be released Monday.
From the outset, the Iraqi High Tribunal's independence and perceived impartiality was weakened by actions of the Iraqi government, Human Rights Watch said in the 97-page, 10-month-long analysis of the trial, which condemned Hussein and seven co-defendants for the torture and execution of 148 people in the hamlet of Dujail more than two decades ago.
The report, based on courtroom observations and dozens of interviews with judges, prosecutors and defense lawyers, is the first significant challenge to what the Iraqi government and its U.S. patrons assert was a fair, if messy, trial.
The report asserts that there was failure to disclose key evidence to Hussein's attorneys and that there were violations of basic rights of the defendants to confront witnesses. The chief judge's outbursts in court undermined his impartiality, it said. There were also gaps in the evidence that weakened the prosecution's case and "put in doubt whether all the elements of the crimes charged were established," the report said.
"The tribunal squandered an important opportunity to deliver credible justice to the people of Iraq," Nehal Bhuta, the report's author, said in a statement. "And its imposition of the death penalty after an unfair trial is indefensible."
On Sunday, two U.S. advisers to the tribunal denounced the report as "misguided" and said that the trial was conducted properly and that a credible justice was delivered. They said the report did not take into account the tribunal's written judgment on the trial, expected to be completed, they said, as early as Monday.
"To question the overall integrity of the justice without reading the judgment is premature, at best," said one of the advisers, who spoke on condition of anonymity.
Richard Dicker, director of the International Justice Program at Human Rights Watch, said such claims were "irrelevant" because the report does not speak to the quality of the judgment.
"What is done in a very careful, specific way underscores the major procedural flaws in the conduct of the proceedings that undermined the verdict of the trial," Dicker said in a telephone interview.
The Dujail trial was the first of its kind to be conducted against a former leader in his own country by his own people, and the first since the World War II Allies prosecuted the Nazi leadership at Nuremberg to try nearly an entire senior leadership for crimes against humanity.
Along with Hussein, two co-defendants were also sentenced to death by hanging, four received prison terms ranging from 15 years to life and one defendant was acquitted. The verdicts and sentences are under appeal. If Hussein's death sentence is upheld, Iraqi law requires him to be executed within 30 days.
But the trial's shortcomings, the report asserts, also "call into question subsequent proceedings at the tribunal."
The chief judge, Raouf Rasheed Abdel-Rahman, lost his temper many times during sessions and exchanged insults with the defendants, the report said. He also had made "erratic and often unexplained decisions limiting the rights of defense counsel to question witnesses."
The U.S. advisers said Abdel-Rahman was simply trying to take control of a court that Hussein and his defense team mocked. Hussein boycotted proceedings or often wagged his finger, shouting. His co-defendants appeared in their underwear.
The prosecution, the report asserted, engaged in "trial by ambush," in which important documents were not handed to the defense in advance. As an example, the report cited an instance when 23 prosecution witness statements were read into the court record without any of the witnesses being made available for questioning by defense counsel.
The U.S. advisers said the prosecution followed proper procedures.
The former chief judge, Rizgar Mohammed Amin, resigned after members of Iraq's parliament denounced him as "weak" and too lenient toward the defendants, the report said. There was heavy pressure to side against Hussein, it said.
"The attitude of the cabinet towards the court and the trial is one of a consumer who pays money for a product," one judge said in the report. "They give money, and they demand results. The government treats the court like a factory."
The report added that the judges lacked the experience to conduct such a complex trial and urged Iraq's government to allow international judicial experts to take part in future proceedings.
"For justice to be done, the trial has to be fair. There were large, large shortfalls in the fairness," Dicker said. The trial, he said, "certainly fails as a reference point historically for what happened and who was responsible in the way the Nuremberg trials did."