Saddam Sentenced to Death

Michael A. Newton
Vanderbilt University Law School
Monday, November 6, 2006; 1:00 PM

Michael A. Newton , a professor at Vanderbilt University Law School who helped establish the Iraqi High Criminal Court, was online Monday, Nov. 6, at 1 p.m. ET to discuss the verdict announcement in the trial of Saddam Hussein . The former Iraqi dictator was sentenced to hang for the deaths of 143 people in the town of Dujail.

Newton, also a former senior adviser to the U.S. Ambassador-at-Large for War Crimes Issues, has made three trips to Baghdad to advise and assist court personnel and has spent extensive time with Iraqi investigators, judges, and prosecutors on issues of international criminal law.

The transcript follows.


New York, N.Y.: It certainly seems correct that this man face execution for the crimes he has committed against civilians.

But what precedent does this lead to?

Are those who are responsible for the bombings, and loss of life among the civilian population of Iraq, subject to review by Iraq courts; somewhere down the road?

Michael A. Newton: There is a distinction between jus in bello law [what we typically refer to as the law of armed conflict], which is the body of law regulating the conduct of hostilities, and the substantive body of crimes against humanity. These officials were convicted of crimes against humanity, which required affirmative proof of a widespread or systematic attack pursuant to or in furtherance of a State or organizational policy to attack civilians. There are many other forums for addressing war crimes committed during armed conflicts. In fact, there have been a number of trials in both American and British military courts for offenses alleged to have been committed against civilians.


Anonymous: If and when an execution takes place, would it be public or televised in Iraq?

Michael A. Newton: Like every other aspect of this trial, it will be determined by the Iraqi judges applying their law in the manner best fit to their legal traditions. The one aspect of Iraqi culture that is perfectly clear is that ordinary people will tend to believe that the sentences truly have been carried out only after they see visual evidence. Remember that many doubted that it really was Saddam captured in December 2003 until they saw him live. Others doubted that Saddam's cruel sons were actually dead until they saw the bodies. I believe that the Iraqis will do what they deem to be in the best interests of upholding Iraqi law and the needs of society. On interesting twist to all of this is that Iraqi law does provide that the body of any person subject to capital punishment is to be returned to the family after the sentence has been carried out.


New York, N.Y.: I was under the impression that Hussein's trial was to be a South Africa-style reconciliation that promoted national healing. But the celebration after the announcement of the verdict was almost exclusively Shiite. It seems Sunnis -- at least those from Saddam's hometown -- doubted the legitimacy of the trying court.

If a guilty verdict plunges the country into more sectarian violence, will that mean it has been a failure?

Michael A. Newton: The one thing that united all Iraqis under the regime was the osmosis of fear and control in which they lived. there are other investigations that directly involve victims from all ethnic and societal groups. The Iraqis intend for this process to illustrate international standards in practice, and they also intended this to stand in sharp contradistinction to the executions that routinely occurred in Iraq with no public disclosure or right to prepare a defense. The process is intended by the Iraqis to serve as a doorway for the introduction of this complex body of international law to the wider Arab world. One of the most persuasive arguments for televising the trial in its entirety was to permit ordinary Iraqis the opportunity to see people just like themselves look the Ba'athists in the eyes and describe what happened to them and to their families. This is a completely new model in that part of the world, and like any other new process has not gone been flawless. In the end, these trials will serve the ends of justice and reconciliation among ordinary Iraqis.


McLean, Va.: I'd like to begin by thanking you for being here. My question has to do with the sentencing. How can death by hanging be viewed as legitimate or acceptable by anyone with any regards for or belief in international human rights standards? This verdict undermines any legitimacy of the courts, let alone steps towards Iraqi reconciliation at this already delicate time. Could you please share you opinion on death by hanging? Thanks again.

Michael A. Newton: The Iraqis insisted, and rightly so in my view, in conforming their processes to preexisting Iraqi law. The most illegitimate form of law enforcement in my view would have been to demand that they ignore their suffering and apply only a process externally imposed. Remember that these judges have experience and that this tribunal is based on existing Iraqi procedural law, with the caveat that the gaps have been filled with the incorporation of international substance and standards when necessary. Sovereign authorities empowering their courts to impose sanctions for the most serious crimes known to mankind [genocide, war crimes, and crimes against humanity] is the most legitimate and practicable form of enforcement. This is PRECISELY what governments that adopt the International Criminal Court statute are doing in their own domestic courts.


Brookeville, Md.: C'mon, wasn't this result a foregone conclusion? I can't believe that anyone on earth was honestly surprised by the result.

My question is, I've wondered all along why he was tried for actions that took place over 20 years ago. Wouldn't it have been easier to prove more recent charges?

Michael A. Newton: The legal conclusions are based on the very detailed body of evidence adduced in open court. One of the tensions in this process was between attempts to divert attention from the evidence and the purpose of the bench to keep out irrelevant political considerations and conduct an orderly trial based on the principles of law and evidence. The outcome and sentences were in no way a foregone conclusion. In fact, the imminent publication of the detailed written opinion will be one of the most telling moments of the entire process. The Statute requires publication of such a written opinion making explicit linkage between the individual actions of each accused and the findings and sentence imposed by the bench. The other primary purpose of the written opinion will be to record the rulings from the bench related to the legitimacy of the trial itself. As to the substance of the charges and the sequencing of cases, those are decisions driven by Iraqis based on when cases are ready for trial and based on the reports of investigative judges regarding the legal efficacy of the evidence.


West Orange, N.J.: What share of evidence presented at Saddam's trial would be admissible in a U.S. court? Did anyone consider trying him first for crimes against Sunnis? Might that have cut perceptions that the trial was a sectarian vendetta? Were Saddam's courtroom antics unusual, or did Tojo and Goering also rant and defy the judge? Will Saddam's execution reduce or exacerbate sectarian violence in Iraq?

Michael A. Newton: As to the evidence, the relevant standard derives from international law. The entire referral file prepared by the investigative judge and admitted at trial here was provided to the defense a full 60 days before the onset of trial and would have been admitted in other tribunals applying international law and based on international standards. The Iraqi constitution provides that "the right of defense is sacred at all stages of investigation and prosecution." this is no idle sentiment in their legal culture, as evidenced by the fact that the judges recited this from the bench during trial on a number of occasions. Having said that, the right of defendants to participate in their own defense is a qualified right and not an absolute right. As expected, some of these defendants engaged in outrageous conduct designed to appeal to forces outside the courtroom. In response to these attempts to avoid engaging on the actual evidence and to demean the proceedings, the judges did precisely what is done in the International Criminal Tribunal for the Former Yugoslavia. The judges in Baghdad took precisely the same measures adopted in the ad hoc international tribunals, Milosevic and Seselj are two representative cases. They would admonish defendants and then remove from the courtroom if necessary where they would watch the proceedings on closed circuit TV from their cells. When they were ready to come back and act with proper decorum they were always permitted to come back. There were several occasions when Saddam and other defendants would actually apologize to the bench.


Norfolk, Va.: Is it just a coincidence that the sentencing of Saddam Hussein occurred just two days before the midterm Congressional elections?

Michael A. Newton: The timing is a complete coincidence. For months, the judges here have been under pressure from around the world and from their own people to move as swiftly as possible. Remember that the criticisms of the pace of trial and its handling prompted the first judge to resign in protest. There was simply no way to please every observer or commentator with regard to either timing or conduct of the proceedings. The judges delayed issuing the verdict from its previously scheduled mid-Oct date because it was simply not ready. Even though the verdict was issued, the formal written opinion that is detailed and comprehensive in explaining the legal reasoning has not yet been published, possibly because it to is still being completed.


Bowie, Md.: I supposed the million-dollar question is whether this verdict will be considered a legitimate act of jurisprudence by the Iraqi justice system; or if the people of Iraq and the rest of the Muslim world think the United States implicitly demanded it as a condition for independence.

Michael A. Newton: One of the Iraqi judges asked me one time whether people would study their opinions in much the same manner as they study the Nuremberg processes. This trial is truly groundbreaking in that region. The judges know that ordinary people are following its proceedings with rapt attention. The process of ordinary Iraqis facing down the people who caused their suffering is the most legitimate and demonstrated example of the rule of law in practice. This is almost a unique example in any country for the former leaders of that nation to be prosecuted in its own courts. As other trials unfold, and the people continue to see the rule of law in practice, I believe that the legitimacy and credibility of this process will be well established in historical hindsight. No one can tell for sure what happens to the long term rule of law in Iraq, but this process must stand in very sharp contrast to the secretive Special courts in which Ba'athist judges condemned people with no trial or opportunity to present a defense. One of the most dramatic exchanges of the entire trial from my perspective was the moment when the trial judge demanded that the former judge of the Revolutionary court,Awad Bandar [a co-defendant, also sentenced to death for imposing a death sentence on Dujaili civilians with no trial] explain "what kind of judge were you."


Saranac Lake, N.Y.: Did Saddam get a fair trial, according to our notions of jurisprudence? Why wasn't he tried by a jury?

Michael A. Newton: This trial, while far from perfect, was absolutely in accordance with international standards of justice. There were indeed some technical defects along the way and some things that from the outside I wish had been handled differently, but the defense had a full right to participate. The international law term is "equality of arms" and they had every chance to present their defense perspectives. These defendants were not tried by a jury because the norm in other international tribunals is to use benches of judges [Nuremberg, ICTY, ICTR, ICC, Sierra Leone Special Court, etc.] and because the tribunal is grounded in Iraqi procedural law. Their system is an inquisitorial system in which the role of judges and prosecutors is much different from our own adversarial model. The norm in Iraq is for criminal trials to be held before judges. The inherent legitimacy of using Iraqi domestic law as the cornerstone of the court meant that external demands for them to change their system would have resulted in a process seen by the Iraqi people as an illegitimate form of foreign domination. Remember that the fundamental goal here is to serve as a model of the rule of law in practice, and that goal is best served by the kind of open transparency demonstrated here.


South Padre Island, Tex.: I recall reading that Paul Bremer abolished that death penalty and believe that Saddam Hussein was charged at that time. If my memory is correct, once Bremer left power, the death penalty was reinstated and was claimed applicable to Hussein because even though he was charged when there was no death penalty, he committed his crimes when there was one. This would not, I think, hold under U.S. law though that's not what applies here. Will this likely be a point of appeal?

Michael A. Newton: Great question with a great legal insight. The relevant principle derived from international human rights law is called lex mitior, meaning that the defendant is entitled to the benefit of a lesser punishment enacted by law. The critical point here is that as a party to the International Covenant on Civil and Political Rights the Iraqi criminal code adopts the lex mitior principle precisely. This principle is embedded in Iraqi procedural law in Paragraph 2, Part One, Section Two, of the 1969 code as follows:

(1) The occurrence and consequences of an offence are determined in accordance with the law in force-at the time of its commission and the time of commission is determined by reference to the time at which the criminal act occurs and not by reference to the time when the consequence of the offence is realised:

(2) However, if one or more laws are enacted after an offence has been committed and before final judgment is given, then the law that is most favourable to the convicted person is applied.

Bremer's decree, while valid under occupation law, had temporary force only during the period of occupation. It did not purport to be, nor was it the legal equivalent, of a "law enacted after an offence" required by Iraqi law to obviate a capital sentence as one of the range of options available to these judges.


Provo, Utah: When will the execution take place? Will it be fairly soon, or will it happen years down the road?

Michael A. Newton: the Iraqi process of appeals in capital cases is far far quicker than our own model. While no one knows the future, unless these capital verdicts are overturned for technical legal reasons, then they will probably not take years to implement.


Atlanta, Ga.: Most Sunnis see Saddam's conviction and sentence as illegitimate, written by Americans, and an affront to Iraqi sovereignty. The Shias, Kurds and Americans may think it's justice, but to Sunnis it only undermines already shakey-to-nonexistent faith in their legal system, and makes Saddam a martyr. Wouldn't it have been better to extradite Saddam to the ICC, or at least wait until the Americans had left?

Michael A. Newton: The ICC has no jurisdiction to hear this case because it cannot fit within the parameters of the requirements from the Rome Statute of the International Criminal Court. The offenses occurred before the July 1, 2002 threshold and Iraq is not a state party to the ICC. No other international forum had jurisdiction. The United States could, in theory, have simply instituted a form of occupation courts to enforce the law, but that would have been properly decried as an illegitimate external domination. The Iraqis demanded a form of accountability be developed from the very first days that they had a voice after the downfall of the regime in the spring of 2003. the most legitimate process is precisely what happened -- the Iraqis implemented international law into their own system and re-ratified that step at every point, to include after the return of full sovereignty. The Iraqis are best positioned to determine whether implementation of this sentence will make these Ba'athists into martyrs or not. Remember that there are other trials involving the full scope of Iraqi groups and many many other defendants possible.


Baltimore, Md.: My understanding is that ordinarily a written verdict would have been handed down, and turned over to the defense so that it could begin to prepare an appeal, at the same time as the oral verdict and sentence that was delivered yesterday. This wasn't done; it has been reported that the written verdict won't be ready until Thursday.

Is my understanding correct? If so, what was the urgency requiring the oral verdict and sentence to be delivered, irregularly, before the written verdict was ready? Why not wait until Thursday and eliminate the suspicion that the oral verdict was rushed out in order to be used in the U.S. campaign?

Michael A. Newton: I do not know, except to speculate that the court did not want to deviate from the announced November 5th date. One possible reason for going ahead as scheduled is that perhaps defense counsel had come into the country from outside and did not want to wait around for the simultaneous pronouncement of verdict and issuance of the formal and detailed opinion.


Newport, R.I.: Could you please discuss the IHT appeals process?

Michael A. Newton: Like other tribunals, the IHT has an Appeals chamber [normally referred to in Iraqi law as the Cassation Court]. The prosecution could have appealed the finding of not guilty as in other tribunals, but they announced at yesterday's press conference that they did not intend to do so. The Cassation court can hear appeals if the verdict is in contradistinction with the law or if there is an error in interpreting it, or based on an error of procedure or an error regarding a material fact that resulted in a miscarriage of justice. The Cassation court can overturn, reverse, or revise the decisions of the Trial chamber.


Gaithersburg, Md.: Not directly about the verdict, but what has been learned to date about who killed the former defense lawyers?

Michael A. Newton: No one knows. The murders were truly tragic and completely avoidable. Having said that, there are any number of reasons why someone would have killed them. The court condemned the murders from the bench and granted delays to the defense when needed to permit them additional time to prepare. The court also ordered that procedures for the security of defense counsel be updated and each defense counsel was under the security provisions that he selected from the possible options.


San Jose, Calif.: How does the legitimacy of this court stand up to recognized international standards? How can a defendant have a fair trial if his defense attorneys were murdered one after another. In my opinion, this trial should have taken place outside of Iraq.

Michael A. Newton: Your note tells me that you live in California -- how would you feel if someone demanded that the persons who made your town suffer could only be tried in Canada? You would want to see the process of accountability, and if you were a witness you would probably not want to travel to another country to participate in a foreign and unfamiliar trial setting. The Iraqis were no different. Despite the enormous difficulties posed by the security environment, there were both willing and able to conduct these trials. International criminal law in its modern evolution puts the primacy on domestic forums conducting cases when they are willing and able to do so, which was the case here.


Virginia: Thank you for taking the time to answer questions today.

It appears to me that the Hussein trial backfired. He was given an opportunity to grandstand and rally the spirits of hardline Baathists and Sunnis who are already looking back at the Hussein era with nostalgia. The proceedings have stuttered along in between the assassinations of its participants. I presume we have a few more trials to go through as Saddam is tried for other crimes. Though important for establishing precedent, I don't understand why the Iraqis didn't start with less charismatic underlings before bringing the main act on stage.

Michael A. Newton: One of the most striking features of this trial for close observers [and very powerful evidence of its overall fairness] is that the judges continued to allow Saddam and other defendants the right granted to them to participate in their defense even AFTER it became obvious that they would commingle legitimate participation in the trial with illegitimate exhortations to the insurgents and completely improper appeals to political processes or ideals. The judge tried to walk the fine line between a fair trial and maintaining orderly and appropriate decorum in a court of law. He had a very difficult position. As I noted the Seselj, Milosevic, and Massouai trials all posed the same types of challenges.


Alexandria, Va.: How do you think the international community will react to the sentence - not just to death by hanging - but to the imposition of death in general, as much of the international community opposes the death penalty?

Michael A. Newton: Despite their rhetoric and public convictions that the rule of law and the end of impunity is important, much of the international community turned its back on the Iraqis when they asked for assistance. Despite the provision allowing for international judges and advisors, no government allowed its judges to participate. The Secretary General of the United Nations forbade the experienced judges from the ICTY in The Hague from meeting with the Iraqi judges to share their experience and perspectives. Much of the international community was willing to demand that the Iraqis ignore their centuries old legal traditions in favor of simply deferring to external standards. For me, this is a betrayal of the real principles of legitimacy and accountability that should unite all nations of the world. This was one of the cruelest and most murderous regimes in world history, and we place principle over pragmatism when we decline to assist because of OUR notions rather than assisting them in modernizing and implementing a fair system in THEIR country for THEIR people.


Sun Prairie, Wis.: Mr. Newton: Good day. What do you say in response to the argument that the trial of Saddam Hussein, which to date has taken almost exactly twice the amount of time needed to arrest, try, convict, and execute sentence on all the senior Nazis at Nuremberg, has been a fiasco that has succeeded only in getting a lot of people killed?

The process of preparing a trial in the first place required keeping the one man less popular in Iraq than the occupation out of sight and out of mind for over a year while violence in the country grew progressively worse. The trial itself became a circus, as Milosevic's trial had, but punctuated in addition by the assassination of various officers of the court or their relatives. And in the end this notorious dictator got more consideration than almost any Iraqi accused of far less serious crimes.

This doesn't look like a triumph of justice and rule of law to me. It looks instead like a bizarre exercise that while making any number of international lawyers feel good about themselves has contributed substantially to Iraq's bloody descent over the last three years. You bear some responsibility for the trial of Saddam Hussein; what is your response?

Michael A. Newton: The point of this exercise was to demonstrate the rule of law in practice complying with international standards but demonstrated by Iraqi judges. An ordinary Iraqi engineer recently told me when I asked his opinion that he believed it to have been a mistake to televise the proceedings because it made the trial unlike other trials in Iraq and allowed the defendants to posture for the cameras. Having said that, he believed that it would be a far worse mistake to take the proceedings off camera once they were initiated. In terms of these types of trials, the length has not been inordinate. The first ICTY trial took one year to the day, and others have taken far far longer than this one.


Chicago, Ill.: I don't mean to appear as an apologist for Hussein, but I fail to understand under what law Hussein has been tried under and, to the extent he is not being tried under existing statutes, to what extent can the convictions be understood as legitimate?

Michael A. Newton: This tribunal did precisely what the world did in the context of the international ad hoc tribunals. The Iraqis created a statute, think of that as the formal constitutive document or legal authority for the process, that implemented existing international standards. They fully incorporated the most modern standards of international criminal law into their system and implemented the full range of international legal procedural standards as well. They will benefit from the long term restoration of the rule of law only to the extent that their practices and opinions continue to conform to the mixed Iraqi/international processes.


San Antonio, Tex.: What effect will the death sentence of Saddam Hussein have on the leaders of the other two countries names in the "axis of evil", Iran and N. Korea? We already have seen that by just naming them as part of that axis has seemingly spurred them on to develop nuclear weapons more vehemently. Their reasoning being they need to "fend-off" pre-emptive attacks by the U.S., or more correctly, the Bush administration.

Michael A. Newton: Many proponents of enforcing international standards of justice argue that prosecution of violators has some deterrent effects. This is indeed one of the primary arguments that people use to justify the creation of the ICC. There is some anecdotal evidence that even the Iraqis modified their practices because of the fear of ultimate prosecution [for example ordering memos to be written as "it was ordered" rather than "X official has ordered"]. Time will tell whether these processes have any deterrent effects beyond Iraq, but is very important to remember that these would only be collateral benefits at best. The real beneficiaries of this process are the Iraqis who have dedicated themselves and their lives to building a better nation.


College Park, Md.: 1. What particular lessons were learnt from the Nuremberg trials of WWII (if any) and applied to the prosecution of Saddam and his cohorts?

2. Would you consider this a milestone in Iraq's effort to establish itself as a country with an independent judiciary or did the whole process limp along with US support (financial, political and military)?

Michael A. Newton: The signers of our own Declaration of Independence ended that historic document with the explicit assurance that they pledged their "lives, fortunes, and sacred honor" to the pursuit of its principles. These courageous Iraqis, all of them involved in this process, have taken no less noble a gesture. Remember that there will be other trials. The Anfal trial, which in my opinion and in the opinion of Human Rights Watch absolutely constituted a genocide, is ongoing. The Anfal trial will reveal to ordinary Iraqis the mass graves filled with women and children and shot at close range in the back of the head. Hundreds of Kurdish villages bulldozed under the ground. Young men and boys murdered and thrown into mass graves wearing blindfolds and with their hands tied. There are numerous other trials and defendants yet to come. One of the main lessons of Nuremberg and the other tribunals is that the process of accountability has an ameliorative effect over the long term even as it provides the irrefutable historical record. This is indeed a milestone in that region for Ba'athist party officials to be held accountable by their own people under their own law [implementing international norms and procedures]. thank you all for the comments and insights. My extensive experience with these Iraqis has led me to reaffirm our individual commitment to stand up for the principles of justice and ordinary human decency, and I hope that those who follow these trials closely will share that reaffirmation.


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