Former Iraqi dictator Saddam Hussein is scheduled to go on trial Wednesday for the first of a series of war crime charges against him. The trial will begin by focusing on the execution of 143 people in the Shiite town of Dujail, the site of a 1982 assassination attempt on Saddam. His government is accused in the imprisonment, torture and killing of many suspected of dissent. What is the significance of Dujail, and why is this the first case to be tried? What other specific crimes will be examined by the tribunal?
Paul R. Williams, professor of International Law at American University's Washington College of Law and an expert in international law, human rights and war crimes, was online Wednesday, Oct. 19, at 1 p.m. ET to discuss the start of Saddam Hussein 's trial in Baghdad. Williams spent time in Iraq this summer as an adviser on the constitutional process and has commented extensively on the upcoming trial.
The transcript follows.
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Boulder, Colo.: What are the laws that sanction this trial and give authority to the judges? Shouldn't the trial wait until a constitution and laws are in place?
Paul R. Williams: There are a number of international laws which regulate trials for war crimes and crimes against humanity. The Iraqi Special Tribunal (IST) has a statute and rules of procedure which draw heavily from the rules governing the Yugoslavia Tribunal, the Rwanda Tribunal and the International Criminal Court (ICC). On the whole, the laws applicable in the IST are consistent with these international norms. The Iraqi government sees it as important to move forward with the trial of Saddam Hussein at the same time that it develops its constitutional process and moves into a new democratic Iraq. The reason for this is it's necessary to delegitimize the former regime as they begin to construct a new regime.
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Philadelphia, Pa.: Would it be a wise strategy of Saddam Hussein to use the tribunal to introduce testimony that would embarrass the United States, especially noting the quiet support the U.S. gave him during the Reagan and Bush administrations? While having nothing to do with his brutality, could he play for international sympathy by portraying himself as someone who was supported by the United States, even given no objection to invading Kuwait by the American Ambassador, and then invaded contrary to international law by the current government? Or is the judicial system designed to prevent such unrelated testimony from being introduced?
Paul R. Williams: Under international law, the defendant generally has wide latitude to argue his defense. In the Yugoslav Tribunal the judges have allowed the defendants to raise the argument of complicity of international actors and forces. The Yugoslav Tribunal has not, however, required international actors to come to the trial and testify. We can fully expect that Saddam will make the argument relating to international support for his activities and it will be up to the Iraqi judges to determine whether these are relevant and admissible.
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Madrid, Spain: What legal basis does the court have to try Saddam? (Set up by an invasion force, how can it be legal according to international law?)
Paul R. Williams: The initial statute for the tribunal was created by the Coalition Provisional Authority with the cooperation of the Interim Governing Council. While there may be some questions as to the legitimacy of a special tribunal created by a provisional authority, the Iraqi Assembly on August 11th adopted a more comprehensive statue and rules of procedure for the tribunal. So we now have a tribunal which has been authorized by a democratically elected assembly of the Iraq people.
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Washington, D.C.: Since Iraqi law is in flux, will that uncertainty affect the legitimacy of the court's ultimate holding? What laws and treaties will the judge look to and what is their status in Iraqi law?
Paul R. Williams: In most post-conflict societies where the country is trying to prosecute those responsible for war crimes, the domestic law is in flux and the judiciary system is in transition. It is for these reasons that the international community has developed a very detailed set of laws regulating genocide, war crimes and crimes against humanity. Over the course of the past ten years, there have been dozens of judicial decisions by the Yugoslav, Rwanda and Sierra Leone tribunals which further elaborate these fundamental principles of international law. The Iraqi judges will therefore have a wealth of international legal standards to draw upon in this case. The Iraqi judges will also, no doubt, draw upon the long experience of Iraq with the rule of law. Iraq has a long history of the rule of law dating back 2,007 years to the Code of Hammarabi.
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Ellendale, N.D.: There has been disappointment expressed by Iranians that Saddam is not being tried for the gas attacks against them. So many people have reasons to want him tried. One unfortunate fact remains. He can only be executed once.
Paul R. Williams: There are a number of practical reasons why Saddam is being tried first for the Dujail massacre. Primarily, the Dujail massacre is being tried first because it is the case with the most clear cut evidence against Saddam Hussein, and it can be prosecuted in the shortest amount of time. This provides the court an opportunity to have ample time to deal with the numerous jurisdictional and other motions which Saddam's lawyers will likely file.
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Baghdad, Iraq: For the crimes Saddam is being tried for like the massive killings of 143 people of Dujail town, my question: if he was found to be guilty is he going to take only one death penalty? Doesn't he deserve 143 death penalties? What does the law say about that?
Paul R. Williams: There are two approaches the Iraqi government may take in prosecuting Saddam. They might seek to prosecute him for all the crimes he committed. There is the risk, however, that if they take this approach they may provide a platform for the next 2-3 years from which he can seek to destabilize the political transformation in Iraq. The Iraq government might seek to prosecute Saddam simply for the Dujail massacre and then to prosecute his lieutenants for the other alleged war crimes. This provides and opportunity to limit Saddam's ability to destabilize the transformation while also providing for an accurate historical record and victim catharsis.
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Mexico City, Mexico: If he killed all his people, was it because he gave an order or because someone else accused him of it? What if he did not, and the other militaries just accused him, could it be?
Paul R. Williams: One argument that Saddam Hussein may make is that these atrocities were carried out by others without his knowledge. International law provides that an individual like Saddam who is in control of his country's military forces may be held liable under the doctrine of Command Responsibility. This doctrine provides that a political and military leader who knew or should have known that those under his control were committing war crimes is also responsible for those war crimes. It is clear from the available evidence that Saddam did exercise effective control over those in his military and thereby liability can be imputed up the chain of command.
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Oxford, Miss: Honestly, isn't the trial (at least of Saddam) kind of a moot point? Is there any chance that he's going to walk free? I understand that lesser charges for minor players might end up being hit-or-miss but really, is there even the slightest chance that this tribunal will let Saddam off?
Paul R. Williams: The evidence against Saddam Hussein is fairly clear, especially in the Dujail case. Apparently there is substantial eyewitness testimony both from victims and from members of his armed forces, as well as substantial forensic evidence. The prosecution also apparently has in its possession videotapes and documents which catalogue the atrocity and identify those who ordered it and carried it out. There is also substantial evidence linking Saddam Hussein to the orchestration of the Anfal campaign in Kurdistan.
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Washington, D.C.: Why exactly did it take so long to bring this man to justice?
Paul R. Williams: In any post-conflict situation a government finds itself for the first time facing the task of prosecuting alleged war criminals. Although Iraq, like many other post-conflict countries, has a long history of an independent, qualified judiciary, prosecutions for war crimes and genocide are highly complex. It is important when prosecuting somebody for these crimes that the judges be fully trained in the nature of these crimes, that the statue of the tribunals fully encompass the relevant norms of international law, and that the defendant be provided ample opportunity to craft a vigorous defense. By comparison, the Yugoslav Tribunal generally requires two or more years to prepare a case for trial. And a similar situation exists with the Rwanda Tribunal.
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San Francisco, Calif.: Would the U.S. tolerate a court decision that found Hussein innocent or one that simply exiled him from Iraq?
Paul R. Williams: The important aspect of the Iraqi Special Tribunal (IST) is that it is designed to provide justice in Iraq for the people of Iraq. While the United States clearly has a view as to the culpability of Saddam, and while many international entities such as the U.N. have commented on the legitimacy of the tribunal, it is important to remember that this is Iraqi justice for Iraqis. I would fully expect, therefore, for the United States and the other members of the international community to fully respect whatever decision may be handed down by the Iraqi court.
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Washington, D.C.: Professor Williams,
Do you think it would have been better to try Hussein in an international tribunal? The Iraqi Tribunal has not been functioning very long; judges may feel intimidated or fearful for their safety. In addition, can Hussein possibly get a fair trial in Iraq? International tribunals, such as the ICTY, certainly have their problems, but many they also address many of these issues.
Paul R. Williams: A number of international organizations and commentators have argued that it is not possible for Saddam to receive a fair trial in Iraq. The irony of this argument is that the victims of Saddam Hussein are the Iraqi people themselves, and therefore it would appear to be legitimate to allow the Iraqis and not the international community to try Saddam Hussein. With respect to the Rwanda Tribunal, the only country which voted against the creation of the tribunal y the United Nations was Rwanda. In the case of the Yugoslav Tribunal, many of the victims in Bosnia and Kosovo have complained that while the international community is accomplishing justice in the Hague, there is no real consideration given to victim catharsis and the healing process in the countries where the crimes occurred. In the case of Iraq, you do have a country with a long tradition of the rule of law prior to the regime of Saddam and you have an amazing ability of the Iraqi Tribunal and prosecutors and defense bar to incorporate the lessons learned from the other international tribunals. In order to ensure the fairness of this trial, it will be necessary, as in other trials, to provide an opportunity for international agencies and the media to observe the trial.
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Mt. Holly, N.J.: How much help are the Americans giving to the Iraqis in the prosecution? Is there any truth to the claim by some that this is an American-driven process?
Paul R. Williams: While this tribunal is an all Iraqi tribunal, much of the additional support both logistical and substantive did in fact come from the United States and the United Kingdom. This was necessary as the United Nations barred any of its employees or experts from assisting the Iraqis in developing their own tribunal. It's also useful to bear in mind that the Yugoslav Tribunal was initially started with financial resources and personnel provided by the United States, and that the Sierra Leone Tribunal was primarily funded in its initial stages by the United States. It is not uncommon for the United States to initially deploy these types of resources to facilitate the creation of United Nations-sponsored tribunals or local tribunals.
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Los Angeles, Calif.: During WWII, our state dept., headed by legal expert Mr. Hackworth, concluded that whatever Hitler did within Germany proper was legal. How did that position change? How can we claim that Saddam committed crimes within his borders, when he was the law?
Paul R. Williams: International law now clearly provides that the president of a country does not have immunity to commit atrocities within his own borders. Since World War II, international law has developed to prohibit acts that constitute genocide or crimes against humanity. These are the most serious and heinous crimes and therefore expose leaders to prosecution despite any provisions or guarantees provided for them in their domestic constitutions.
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Berlin, Germany: How do Iraqi Sunnis see the trial of Saddam? Is he a hero to many?
Paul R. Williams: My experience in Iraq over the summer indicated to me that Iraq is comprised of a very eclectic and heterogeneous population. While there are still some supporters of Saddam Hussein in Iraq, nearly all of the Iraqis are very firm in their view that Saddam Hussein was responsible for mass atrocities against the people of Iraq. That said, they are very committed to seeing through a judicial process and allowing Saddam his day in court.
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New York, N.Y.: Can Saddam Hussein assert the doctrine of unclean hands against his triers?
Paul R. Williams: While Saddam may seek to argue the complicity of the international community in his acts, or seek to argue the legitimacy of the occupation of Iraq, he is being tried not by the international community or the coalition, but by Iraqis themselves. This is one more reason why it is important that he not be tried in the Hague by a U.N. tribunal but that he actually be tried by Iraqis.
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Fairfax, Va.: Do we know, beyond a shadow of a doubt, that this man really IS Hussein? Before his capture, we heard a whole lot about how he had many decoys and twins.
While his defiance is expected, the unwillingness to give a name reminded me that I've never seen any proof that this IS the right man.
Were any specific (e.g., biological) tests performed? Or are we all just assuming?
Paul R. Williams: While it was reported that there were a number of Hussein decoys, the Iraqi government has gone to great lengths to ensure the identity of those charged with the crimes. My understanding is that Saddam has been interviewed by a number of Iraqis who knew him well in the previous regime and that they have positively identified this man as Saddam Hussein. Very early on, after his capture, three former Baath party members interviewed Saddam at great length to ensure that eh was in fact Saddam Hussein and they came to the unanimous conclusion that he was.
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Toronto, Ontario: If Saddam killed folks because they were considered a threat to his government and to the "good order" of Iraq and is a war criminal .... then, when the US bombs and kills folks because they are seen as a threat to "good order" .... are they not to be considered war criminals too?
Paul R. Williams: It is important to note here that Saddam Hussein is not being charged with collateral damage or negligent military acts. Rather, he is being charged for the deliberate massacre of his own people. The crimes against him are genocide and crimes against humanity. While his acts relating to certain elements of the conduct of war in Kuwait and Iran and in suppressing internal rebellions may in fact be legitimate, he does not have the right to execute innocent civilians. While it may be legitimate to engage in armed conflict with a rebel group in the north or the south, it is not legitimate to use poison gas to destroy entire populations in villages and towns, or to execute all of the men and boys in a town after the military action has concluded.
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Detroit, Mich.: Of any of the defendants, is there any possibility that there will be a plea-bargain? (Assuming they have that in Iraq.)
Paul R. Williams: There is substantial debate as to whether the tribunal should permit plea bargaining. On one hand, plea bargaining is a commonly used practice to facilitate a conviction of those primarily responsible for the war crimes. On the other hand, there is a compelling notion that no individual, no matter where they're located in the chain of command, should be able to plea bargain for a reduced sentence if they are in fact responsible for crimes as heinous as genocide and crimes against humanity.
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Olney, Md.: Excuse me, with respect to the doctrine of Command Responsibility, I specifically meant President Bush as Commander-in-Chief and Donald Rumsfeld as Secretary of Defense.
Paul R. Williams: The doctrine of Command Responsibility applies in every country throughout the world. If there is a determination by a tribunal that war crimes did in fact occur at the hands of American troops, then the military and political leadership have an obligation to ensure that those who committed the crimes are punished and that the crimes cease. If they do not take this action, then they would be liable under this doctrine of Command Responsibility.
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Annandale, Va.: Is Saddam Hussein the only world leader to have killed 143 of his own people??? What am I missing here?
Paul R. Williams: From the end of World War II until the end of the Cold War, there were a number of totalitarian regimes which committed mass atrocities. Sadly, almost all of these leaders were granted immunity or amnesty by the international community either in the form of a peace agreement or a United Nations sponsored cease-fire. Only in the past 15 years has the international community again come to recognize the value and the moral responsibility for prosecuting world leaders who commit mass atrocities. While the first case against Saddam relates to the extermination of all of the male members in the village of Dujail, it is alleged that he killed upwards of 300,000 Iraqis during his regime.
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Munich, Germany: What will weigh more heavily in this trial?: Written evidence (orders signed by Hussein, etc.) or witnesses from his ruling elite who probably aren't much more trustworthy than Hussein himself.
Paul R. Williams: It is my understanding that the tribunal does in fact have substantial written evidence of the responsibility of Saddam Hussein and his lieutenants for the crimes committed against the Iraqi people. It is unlikely that there will be many witnesses from the former Baath Party who will testify against him. However, we are likely to see a number of victims brought to the court to testify both because they are able to provide eyewitness testimony of the crimes that did occur and because it is very important from the perspective of justice to allow the Iraqi victims to face Saddam in and Iraqi court and to be able to tell their story.
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Arlington, Va.: I'd read that various European nations have refused to provide evidence that could be used in the trial, due to their opposition to the death penalty. How has this affected the trial?
Paul R. Williams: One of the disturbing elements of the participation of the international community is that all of the European states and the U.N. have refused to provide assistance to the tribunal. They rationalize this by their opposition to the death penalty. The United Nations and the international community, whether or not they are opposed to the death penalty, should respect the right of the Iraqi people to determine for themselves the punishment which should be carried out against individuals if they are found guilty of genocide. The international community has put its own interests in front of the interests of the victims of these atrocities. This is one reason why the Rwandans have opposed the Rwanda Tribunal and many of the victims of the Milosevic regime feel that they have been denied justice by the Yugoslav Tribunal.
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Paul R. Williams: Thank you for joining me today.
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Paul R. Williams: For more discussion on this, go to Public International Law Policy Group/Case School of Law blog for the Saddam Hussein trial.
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