JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that the trial of Saddam Hussein for genocide of the Kurds should continue posthumously, notwithstanding his execution for crimes against humanity in Dujail...
The decision not to try Saddam before an international tribunal, but rather before an Iraqi court in occupied Baghdad, brought with it many complications. First, because the court was established by the U.S., subsequently blessed by both the governing council and iterim government, then embraced by the elected Iraqi government without any significant changes, it never enjoyed the gloss of legitimacy that a domestic independent national court should have. Moreover, due to the aggressive de-Ba'athification policies of the U.S., higher level judges were removed from service, leaving only less-qualified lower-level judges to contend with sophisticated defense counsel, complex international legal charges (war crimes, crimes against humanity, and genocide) and an unruly group of former tyrants. Thus, the IHT was ill-equipped to handle the trials on its docket from the outset.
Once the Dujail trial began, the IHT proved incapable of guiding the proceedings in a fair and unbiased manner. The Chief Judge resigned in disgust amidst charges of government interference with the court's independence midway through trial. Multiple defense counsel and associated personnel were gunned down in the streets, and some fled to Jordan in fear for their lives. The unstable security environment also hampered defense counsel's ability to investigate and test evidence offered by the prosecution, which only had to meet a satisfaction of guilt standard by the IHT as opposed to a "beyond reasonable doubt" standard used by international criminal tribunals.
And human rights groups, no friend to Saddam while he was in power, nevertheless uniformly condemned the IHT trials as unfair, specifically noting a lack of familiarity with international criminal law on the part of Iraqi lawyers and judges despite the fact such crimes were being charged and the extensive use of anonymous witnesses, thereby limiting defense counsel's ability to adequately counter the evidence against their clients.
So what happens now? Only one of the seven trials has been completed. Saddam was in the middle of the Anfal trial for the genocide perpetrated against the Kurds in northern Iraq during the end of the Iran-Iraq War. Because the IHT was trying Saddam's crimes sequentially instead of together, five other trials have yet to begin. The IHT's options are to end the trials of Saddam now, or continue to try Saddam posthumously. Either way, the outcome is less than optimal. Ending the trial process truncates exploration of the full guilt of Saddam Hussein for his crimes. But continuing the trial posthumously would be a one-sided affair, disallowing a vigorous and active defense the ability to test the truth of the evidence presented. Moreover, from the perspective of the victims, Kurds will be seen as not receiving justice while Shi'ites (victims in the Dujail trial) did. This would be especially true from the storytelling standpoint, which is key to national healing and reconciliation after long periods of traumatic rule by ruthless despots.
The Iraqi government should have stayed Saddam's death sentence until the completion of the trials against him, or at least until the completion of the Anfal trial for genocide, not only as a matter of justice for Iraq's Kurdish population, but because there are many aspects of genocide that remain unsettled. What the IHT may contribute to the small canon of genocide cases since Nuremberg is potentially significant. For instance, the question of whether ethnic cleansing constitutes genocide continues to be debated within the academy. Ethnic cleansing was a central aspect of Saddam's Anfal campaigns against the Kurds. Moving the Kurdish population out of the area around the oil fields and repopulating those areas with Sunni Arabs occurred relentlessly during this time frame. Kurds in northern Iraq are now dealing with the problem of resettled Arabs in traditionally Kurdish lands because of that ethnic cleansing. A judgment on whether this is genocide would be extremely helpful in the development of the law of genocide, even it comes from a somewhat flawed tribunal.
Consequently, although the great tyrant is dead, his trial should continue - even if posthumously, on the question of guilt for the Anfal campaigns. His co-defendants in that trial will remain co-defendants, but his counsel should remain at table. The law that will come out of it is important, and the quality of the trial, such as it is, will only be heightened if Saddam's more sophisticated counsel remain in the game instead of leaving it to the counsel of his co-defendants alone. Moreover, Iraq's Kurds deserve to have their victimhood, and Saddam's role in it, as legally recognized as the Shi'ite population. To be sure, the full extent of Saddam's atrocities will not be as completely appreciated as if he physically stood trial for all his crimes. But at least by letting the Anfal trial move forward, the IHT would finish some of what it started.
Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from the U.S. National Chapter of L'Association Internationale de Droit PÃ©nal.