Introduction

On October 19, 2005, Saddam Hussein and seven of his co-defendants went on trial before the Supreme Iraqi Criminal Tribunal for crimes committed in July 1982 in the town of Dujail. The tribunal was established by the Iraqi Governing Council on December 10, 2003, to adjudicate crimes committed by Iraqis inside and outside Iraq, including in Iran and Kuwait, between July 1968, when the Ba'th Party came to power, and May 1, 2003, which coincided with the fall of the Saddam regime.

The tribunal comprises five judges who elect a chief judge from among them. The presiding judge of the tribunal is Rizkar Mohammad Amin from Suleimaniya in Iraqi Kurdistan. For security reasons, the identities of the other four judges have not been revealed.

As of December 7, the court had had three sessions and two postponements. The first session was held on October 19, but was quickly postponed to allow more time both to correct some of the technical problems that marred the serenity of the occasion and to provide additional time to convince witnesses to testify. Given the lack of security for witnesses throughout the trial, it may require a lot of convincing to appear in public testifying against Saddam Hussein. The risks to their lives can be discounted only at their own peril. When the witnesses finally appeared in the third session, they were identified by an alphabetical letter and testified behind a curtain.

The second session was held on November 28 but was very brief. After the court heard the recorded deathbed testimony of Wadhah Isma'il al-Sheikh, a former officer in the istikhbarat (security intelligence) who would have otherwise been another defendant had he not been terminally ill, there was a postponement to allow Saddam's former deputy, Taha Yassin Ramadhan, to replace a lawyer assassinated immediately after the first session.

The third session was held on December 5 and was the longest, lasting three days. It started with the demand by the defense lawyer Khalil al-Duleimi that two foreign lawyers be allowed to make short statements for the defense: Ramsey Clark, an attorney general of the U.S in 1960s, would make a statement questioning the legitimacy of the court, and Najib al-Nu'eimy, the former minister of justice of Qatar, would make a statement about providing protection to the defense lawyers.

When the judge refused, all three attorneys walked out and returned after haggling for 90 minutes. Clark was granted five minutes but he complained that the time allotted was not enough because he spoke slowly and because of the time required for translation. Al-Nu'eimy was given 15 minutes which he used to question the legitimacy of the court under international law. During all the confusion, Saddam shouted that the law followed by the court was promulgated by "America" and should be rejected. He then yelled: "Long live Iraq, Long live the Arab nation." [1]

During the proceedings, Iraqis were attracted to their television sets watching the trial unfolding. The people's reaction was generally muted, as the vast majority, according to most Iraqi newspapers, believe Saddam should be sentenced to death and executed. One exception was in Tikrit, Saddam's hometown, where a few hundred of Saddam's supporters convened in the Great Saddam Mosque and then marched on the President's [Saddam] Street. [2]

Cages of the Accused

It is common in the Arab criminal legal system to place the person on trial in a special cage, known as qafas al-ittiham, or the cage of the accused. During their trial, Saddam and his co-defendants are placed in such cages. The cages are heavily protected and, save for their symbolic character, they provide the accused with comfortable chairs and enough space to move around and regularly harangue the court and the witnesses.

Saddam and his Co-Defendants at the Trial

Saddam Hussein has seven co-defendants who were involved in the Dujail case:

Taha Yassin Ramadhan, former deputy president, a Kurd with a long record of atrocities against the Kurdish people. His attorney was killed after the first session.

Barzan Ibrahim al-Hassan al-Tikriti, Saddam's half-brother and Saddam's late son Uday's father-in-law. He served, at one time, as the Iraqi ambassador to the U.N. organizations in Geneva - a position that provided diplomatic cover to Iraqi intelligence networks in Europe and, at the same time, allowed al-Tikriti to manage the family's vast investments.

Awwad Hamad al-Bandar, a former chief judge in the Revolutionary Court which handed the death sentences to thousands of Iraqis, including 135 residents of Dujail. His attorney was kidnapped from his office in Baghdad shortly after the court was adjourned. The following day the attorney's body was found riddled with bullets.

Abdullah Kadhem Ruwaid, Mudhhir Abdullah Ruwaid, Ali al-Da'i al-Ali and Muhammad Azzam al-Ali. All four suspects were officials of the Ba'th Party branch in Dujail and had a hand in the crimes committed there.

All the defendants, including Saddam, are incarcerated in the same building; however, they are permitted no contact with each other. The trial provided the first opportunity since their arrest for Saddam to be greeted by his half-brother and his former vice president. [3] Saddam is always the last to enter the "cage" and upon his appearance, the other co-defendants and the attorneys stand up as a sign of respect for "President Saddam."

When asked by the chief judge to identify themselves, six of the seven co-defendants refused to do so because their tribal headgears were taken away from them before they entered the court room. The chief judge ordered the headgears be restored.

The Case Being Tried

The case being tried involves the massacre of many residents of the town of Dujail and the torture and imprisonment of hundreds of others following an attempt on the life of Saddam. Dujail is situated 40 miles north of Baghdad on the bank of the Tigris.

On July 8, 1982, Saddam's motorcade was fired upon in the village of Dujail. Saddam was not hurt. The following few days, security forces arrested hundreds of the village residents, including entire families with their children, all Shi'a, leveled their homes, bulldozed their farms and razed their groves. The remaining residents were exiled to other parts of Iraq, and would return to their town only four years later. Of those arrested, 143 were executed in accordance with a Republican Decree signed by Saddam on June 16, 1984, following a verdict of the Revolutionary Courtissued two days earlier. [4] Dujail, whose name was changed afterward to al-Faris (the Knight, one of Saddam's titles) has acquired a significant emotional status among the Shi'a of Iraq - so much so that it is mentioned in the Preamble to the Iraqi constitution which refers to the Iraqi sufferings in the mass graves, the [drying of the] marshes and Dujail. [5]

The Selection of Dujail as Trial Case

Saddam could have been tried on a number of more serious crimes such as the use of chemical weapons against the people of Halabcha in Iraqi Kurdistan; the Anfal operation in Kurdistan, a form of racial cleansing, which resulted in the death of more than 100,000 Kurds whose bodies were found in mass graves; or the invasion of Kuwait with the subsequent indiscriminate killing or disappearance of many of its people and, finally, the setting of fire to 700 of its oil wells following the expulsion of the invading Iraqi forces from Kuwait. However, the Dujail offered the potential of a fast trial and involved no foreign governments or individuals.

The Lady with the Henna

No event surrounding Saddam lacks the elements of intrigue, and the attempt on his life in Dujail is no exception. Khalil al-Duleimi, Saddam's attorney, relates what he has heard from his client about the events that preceded the attempt on his life. Saddam was traveling in a motorcade from Tikrit to Baghdad. The motorcade was passing through Dujail, a sleepy little town on the bank of the Tigris, when, according to the story, Saddam noticed an old lady standing at the side of the road, her hands raised in fervent gesture of the desire to pay respects to him. Saddam ordered the motorcade to stop; he alighted from his car to greet her. According to his attorney, Saddam then noticed something odd: the henna (a traditional reddish dye women use to decorate their palms and the soles of their feet) on the lady's palm was wet and she seemed to be maneuvering to mark his car with the reddish henna. Saddam became suspicious of the woman's behavior and decided to switch cars. Sure enough, minutes later, the car which was smeared with henna came under a hail of bullets. [6]

The Courtroom Setting

The court met amidst heavy security inside the Green Zone in what was once known as the "Palace of the Gifts" in which Saddam displayed the gifts he received, during his dictatorship, from both Iraqis and foreigners.

Only a select group of journalists were permitted to attend the trial. And although they were seated behind armor-plated barriers, their pens and papers were confiscated. Their reporting had to be based on their recollections. [7]

The first session of the trial ran into technical difficulties. Despite ample time for preparations for "the mother of all trials" the audio was poor. Even native Iraqi speakers could not understand much of the spoken word and had to follow the proceedings through the English translation. The attempt by the chief prosecutor Ja'far al-Musawi to show a video about the events in Dujail failed because of the absence of proper equipment. In addition, the chief prosecutor rambled to such an extent that, at the instigation of the defense attorney, the chief judge asked him to adhere to the case at hand. The transmission went through some sort of internal review which delayed the "live" broadcast segments by 20-30 minutes. The delayed transmission continued through the most recent session on December 5-7. The scrambling of the voices of the witnesses from Dujail raised a problem of comprehension.

Saddam's Defiance during the Trial

On the eve of the trial, the Ba'th Party called on the insurgents to "salute" Saddam during his appearance at the tribunal by firing shells on the American and Iraqi armies. At the outset of his trial Saddam was defiant - he rejected the identification procedure (giving his name) and challenged the authority of the court to try "the legitimate president of Iraq" who was "elected by all the people of the country."

At his first appearance in the court, Saddam, with a Koran in his hand, bragged that he has been up and ready for the 9:00 a.m. court appearance since 2:00 a.m. And with a measured bravado he added, "I don't get tired." Conscious of his image in public, Saddam had requested and received black hair coloring before his appearance in court. [8]

When his guards led him to his cage he admonished them: "Be careful with me. I am your president." However, on November 29 he told his guards using the third person singular: "Saddam is no longer a lion. Don't be afraid of him." [9]

On the second day of the third phase of trial on December 6, he complained that he was unable to change his dirty clothing for days and that the defendants were unable to bathe or smoke. He asked the court to postpone the trial for a few days to give him time to rest. When the judge told him there would be another meeting the following day to hear the last of the witnesses from Dujail, Saddam told the court "I will not return to an unjust court. Go to hell. You are all agents of America." His half-brother and co-defendant Barzan al-Takriti reminded the court that "this man is the father of Iraq." [10] The following day, the opening was delayed to allow for negotiation between Saddam, his lawyers and the court. Saddam prevailed and he did not show up at the last meeting on December 7 but was promised a briefing on the proceedings. The assumption is that he will appear in most if not all future meetings of the court as it has provided him with a platform to infuse a measure of strength among his supporters.

Not Afraid of Execution

Aware that he is being tried for crimes that could culminate in a death penalty, he makes a habit to repeat that he is not afraid to die. Speaking again in the third person, Saddam told the judge in the second meeting of the third session that the Americans and the Israelis want him to be hanged. He then roared: "Neither Saddam nor any of his companions is afraid of execution." What is important to me, he shouted, "is the satisfaction of Allah and humanity, and the American peoples (al-shu'ub al-amrikiya) should know what a crime was committed by their rulers against the [Iraqi] nation." He then added: "These testimonies destroy a history of 35 years during which we built Iraq with the tears of our eyes." [11]

When one of the witnesses referred to Saddam as "Saddam Hussein al-Tikriti" which was the full name of Saddam Hussein when he first appeared on the political stage in Iraq in the 1970s, Saddam addressed the judge angrily: "Your Excellency. I am the president of your country. Have you heard anyone address me as Saddam Hussein al-Tikriti? You have not asked me, Oh Saddam Hussein, Oh the President of Iraq and the commander in chief of the armed forces for 30 years: have you been beaten, were you mistreated: Isn't this your duty?" He went on to describe his trial as a theater and added: "One day an American general told me we will make of you either Mussolini or Napoleon and I told him I am Saddam Hussein." [12]

Saddam Justifies Actions in Dujail

Responding to the testimony about the events in Dujail, he made two assertions, always out of order and in defiance of the court: "Is it not the right of Saddam Hussein, a head of state who was fired at, that his security apparatus pursue the criminals who fired at him?" As for the razing of the groves in Dujail, he said: "It is the right of the state to own or take ownership of the groves or any other land. What happened [the razing of the groves] was done in accordance with a legal order which covered five groves from which the head of the state was fired upon." He added: "We did not compensate the owners fully [initially] but when I was visited by the people of Dujail [no date was provided] I returned their land with compensation." He sternly told the judge "not to continue with this game" and, with utter contempt he referred to the judge: Oh Ustadh, the Judge [hakim - which could also mean the ruler] of Iraq." [13]

Testimonies by Two Women Victims

There have been several dramatic events in the ongoing trial, but none have been more powerful than the testimonies of the two women, identified as "Witness A" and "Witness B" to protect them from retaliation by Saddam supporters. Witness A told the court that as a 16-year old girl, she was arrested by the security forces and was forced to undress in front of five male officers. Sobbing throughout most of her testimony she told the court: "I swear by Allah that when I saw a donkey on the road I envied him for his freedom." [14] Whether Saddam was touched by the testimony is hard to tell but unlike all other sessions, which have been punctuated by his outbursts, after Witness A completed her testimony Saddam was silent.

The Conduct of the Chief Judge

There is a genuine concern among Iraqi observers that the focus of the trial among Iraqis has been shifting from Saddam Hussein and his co-defendants to the legal temperament of the chief judge and his tolerance, if not passivity, in the face of Saddam's constant interruption of the proceedings, his intemperate behavior and the constant epithets he hurls at the court. The liberal daily al-Mada referred to the concerns expressed by parliamentarians and politicians regarding what is perceived to be the weakness of the chief judge and their demand for his replacement. The critics are also concerned that the defendants and their lawyers are striving to de-legitimize the proceeding while at the same time doing their utmost to postpone or prolong the trial.. [15]

Dr. Leith Kubbah, the spokesman of Prime Minister Ibrahim al-Ja'fari, expressed the government's disappointment with the performance of the court and indicated that changes in the administration of the court may be taken up by the National Assembly. He added that the government was not prepared to undertake the cost in the millions of dollars for the "theatrics" in the court. [16]

Speaking on behalf of Ayatollah Ali al-Sistani, Sheikh Mohammed Saleh al-Heideri demanded in his Friday sermon that the government arrest Clark and Nu'eimy for entering Iraq without a visa. Al-Heideri expressed the hope "the criminal [Saddam] will get his punishment" but counseled patience. [17]

There are also those of course who praise the patience and the judicial temperament of Judge Amin and his determination to demonstrate to the Iraqis and the world that the proceedings are fair and transparent and that there was no rush to judgment. The trial, the first major one under democratic Iraq, must provide a lesson in democracy, justice, rule of law and, no less important, a measure of civility. Unlike the trials in the revolutionary court under Saddam, where the fate of accused was predetermined and their death sentence was meted out without the presence of defense attorneys and without the right of appeal, in this first trial in democratic Iraq, the defendants if, after careful examination of the evidence, found guilty, will have the right appeal. [18]

The London daily Al-Sharq Al-Awsat has complimented the conduct of the chief judge and commented that "it would be a shame if the Iraqis were to miss an opportunity to establish a fair judicial system because of [the desire] to take a revenge on Saddam. A lengthy and open trial is a prerequisite for the national reconciliation among the Iraqis." Iraq, it added, "is in utmost need to dismantle gradually the image of Saddam as 'the hero.'" [19]

First Arab President on Trial

A number of Arab dailies have underscored the fact that Saddam's trial is the first of an Arab leader made accountable for his actions. According to the London daily al-Hayat: "This is the first Arab president whose people are able to try him for a long list of charges that do not cover entirely what he has committed. The occupation has caused his downfall. Thanks to the occupation he is in court, for otherwise he would have been killed a long time ago. This is the first Arab president being on trial not only for his crimes but also because he had miscalculated his arithmetic and his challenges. He was unable, like others, to extricate himself and thus he had fallen into a trap." [20]

Conclusion

Given his record of lawlessness and as a bully, with a death penalty to be expected if he is found guilty, and with seven co-defendants cheering him on, Saddam Hussein should be expected to continue to be disruptive and abusive.

This trial will serve as watershed for the emergence of the rule of law in a country run by a lawless regime for three decades. Right now, most Iraqis appear impatient with the court proceedings; they wish to see Saddam executed and done with. The trial is, therefore, first and foremost, a civic lesson for a whole generation accustomed to courts of injustice which trampled with impunity over the most basic of human rights and human dignity. While it is important not to sacrifice the rule of law it is equally, perhaps even more, important not to convey to millions of TV viewers, particularly in Iraq, that the rule of law is equated with disorderly and abusive behavior in a court of law.

The court will resume on December 21, after the parliamentary elections scheduled for December 15.

*Dr. Nimrod Raphaeli is Senior Analyst of MEMRI's Middle East Economic Studies Program.