Saddam Hussein is in the dock, beard neatly trimmed, wearing a dark and well-cut suit with a burgundy handkerchief poking out of one pocket. It is his second trial, the ”Anfal trial”, for the murder of 180 000 Kurdish villagers. He and his fellow defendants are seated in a row inside the ”cage”, the Special Tribunal’s oversized dock. As on most days, they are complaining. Today it is about the qualifications of their court-appointed lawyers — their own legal representatives are boycotting the trial. The defendants seem to have a case.
It is late September. The new defence counsel are struggling and under-prepared. The tough new chief judge, Mohammed al-Ureybi, shoots down their cross-examinations as ”irrelevant” or orders them to rephrase their questions, stunning them into long, ineffective silences as they shuffle their papers. Ureybi was brought in to replace Judge Abdullah al-Amiri, whom the Iraqi Prime Minister, Nouri al-Maliki, sacked, fearing he was showing too much sympathy for Saddam. Saddam himself is watching, waiting for his cue to enter the debate.
The judge chides one of his co-defendants, Sabr al-Duri, a former head of military intelligence, and tells him he may not use military titles about his co-accused, Sultan Hashim, a brigadier-general. ”You can call him brother Sultan,” says the judge. ”Don’t mention his title. None of you have a title or rank any more.” Saddam begins to speak inaudibly, but the judge shouts him down and tells him to respect the court.
It is a red rag to a bull. ”I would respect it if it was a respected court,” shoots back Saddam, holding up a piece of paper he says is a request not to attend the proceedings. ”I don’t want to sit inside this cage,” he says, ignorant of the absurdity of his statement. ”It is a shame to be here. It is a dishonour to talk to you.”
He raises his paper again. ”I have a demand that I do not have to come here,” tries Saddam again. Then the shouting starts across the court. Saddam shouts at the judge that his father was an asset for the intelligence service — the Mukhabarat. Nothing is more offensive or dangerous in the new Iraq. Then Saddam is ejected.
Amid the petulant exchanges, it is necessary to recall just how serious these matters are. How on 5 November, failing last-minute delays, Saddam will be taken from the cell where he is being held with other ”High Value Detainees” under US guard in Camp Cropper, close to Baghdad’s airport, to be told the first verdict against him in his two trials for crimes against humanity. How, given the way the trials are going, he will in all likelihood be found guilty of the slaughter of 148 villagers from the Shia village of al-Dujail, after a failed attempt on his life in 1982. And how that verdict will bring him a step closer to the gallows.
It is now mid-October, Saddam’s most recent court appearance. Maliki is in Najaf, telling reporters how the former dictator’s execution would help to ”undermine the insurgency”. It does not matter, apparently, that there is no verdict yet on the charge of ordering the murder of the villagers of al-Dujail, and the prime minister — who can, and does, interfere in the case — says he hopes Saddam will be killed soon.
At the court Saddam is listening to the evidence of Mutalib Mohammed Salman (78) from the Kurdish village of Jilamord in the district of Chamchamal. He is talking about an attack in May 1988. He describes how 200 villagers were loaded into army trucks and taken to the Taktak detention centre, where the men were separated from the women, and the young from the old. Then they were taken to Topawza prison. ”I was led into a cell and that’s the last time I saw my family. I don’t know what happened to them,” he says.
He describes being taken to Nugrat Salman prison near Samaw in the south. Here they were separated into groups of 10 to 20 and starved. ”I saw two people tied upside down on a pole by their waistbands and beaten senseless. Then … they stamped on their backs.”
He is asked by the prosecutor about other details given in his statement to an investigating magistrate in Suleimaniyeh; that a man in the prison was locked in a lavatory and starved to death, and that he saw dogs eating human remains in Nugrat prison. He denies that he said any such thing. It is Ramadan. ”I am under oath, I am fasting, I cannot lie.”
There have been many lies told in the trials of Saddam Hussein. There are certainly lies being told by Saddam and his co-accused to defend themselves. There are lies too, it appears, being told by the witnesses against him. People remember things they did not, or could not, see. In one recent court session a woman described a rape in a room, although she was not present. When challenged, she said that there could be no other reason for a man to take a woman into a room on his own. At times the written record of the investigating magistrate has been contradicted by oral examinations of the same witnesses, while at others the similarity of evidence — down to the very phrases delivered by different witnesses — is too pat, suggesting coaching by the prosecution.
But there is a bigger lie than that. With the first verdict due to be delivered early in November, the biggest lie of all may be that this is an open and fair trial. It was a legal process sold by its US sponsors as the Nuremberg of Iraq, a reckoning for decades of murder and abuse by Saddam and his lieutenants in the Baath party.
At first, Iraqis presented it in slightly different terms: an opportunity to come to terms with their country’s past in a huge judicial act of memory and reconciliation. But as the months have dragged into a long year, a different dynamic has emerged. As sectarian and insurgent violence has worsened in parallel with the stop-start of the legal process, the trial has become less important as a process that has the ability to investigate and judge and heal. Instead it has instead become an end in itself: a mechanism with no other point than to convict and execute Saddam in the hope that somehow it might staunch the violence.
So the prosecution of Saddam, a man who by any reckoning should be on trial, has turned, in large part, into an embarrassing and lethal farrago. And it has drifted from the daily consciousness of most Iraqis, few of whom could tell you much of the latest twists and turns — concentrating, as they are, on their own struggle for survival.
That sense of political ”necessity” on the part of Iraq’s Shia-dominated government, felt in particular inside the office of Nouri al-Maliki, has been driven not only by the ever increasing violence, but by the resurgence of the Baath party, largely as an underground organisation which has supplied a political logic to the nationalist struggle.
The trial is lethal for Saddam and his co-defendants because its likely conclusion is an appointment with a hangman’s noose within a month of the completion of the appeals process. It is especially lethal for those involved in a hearing marked by the murder of witnesses, for relatives of the prosecution lawyers, and for the lawyers themselves. The most recent killing took place just two weeks ago when a gunman shot the brother of the chief prosecutor in the Anfal trial. On 21 June this year, the victim was Saddam’s chief defence lawyer, Khamis al-Obeidi, who was assassinated in Baghdad.
That killing resulted in a protest a fortnight later by two of Saddam’s lawyers in the US, Ramsey Clark, a former US Attorney-General, and Curtis Doebbler, at a press conference at the National Press Club in Washington. They called for immediate security for all the Iraqi defence lawyers and complained that the trial was unfair and being pushed by the Americans. The two lawyers claimed that the US had refused to provide adequate protection for the defence despite repeated requests.
It has not only been the killings that have been a matter for serious concern. The trial of Saddam and his co-defendants has been surrounded by allegations of misdeeds on all sides. Witnesses for the prosecution have been intimidated. The defendants have complained of being ill-treated in custody. Saddam himself has been rebuked for making statements that have appeared to be nothing short of encouragement to Sunni nationalist insurgents in their struggle. So the court has turned into a dark theatre of the absurd — a place of tantrums and shouting matches and histrionics.
It has not only been Saddam’s lawyers who have been complaining about the lack of a fair trial. A number of international organisations, including Amnesty International, Human Rights Watch, and United Nations bodies, including the Working Group on Arbitrary Detention and the High Commissioner for Human Rights, have all said that the special tribunal is failing to meet international standards. Perhaps most embarrassing of all has been the decision by the UN Secretary General, Kofi Annan, not to support the proceedings, expressing his own concerns over their fairness.
Amnesty International, which has been observing the trial, has levelled some of the strongest criticisms. In August, at the completion of Saddam’s first trial, it said the tribunal had been ”a deeply flawed process and urgent changes are needed to ensure that future trials before the tribunal conform to international standards for fair trial”. The group singled out the lack of ”safeguards needed to ensure the judicial independence of the tribunal; the safety of lawyers, witnesses and others involved with the court; defendants’ rights and due process; and that defendants are not subject to the death penalty”.
They are concerns that have not been mitigated by recent events.
In the two trials that have so far taken place, marked by the surreal nature of their conduct as much as the horrific evidence before them, nothing has been more bizarre than the behaviour and treatment of the chief judges in both cases — both of whom have been replaced because they were considered ”too lenient” towards Saddam.
First to be removed was Judge Rizgar Mohammed Amin, in January. An ethnic Kurd who lives in Suleimaniyeh, Amin was the original face of the first Saddam trial — the only one of the judges who was identified by name. Selected for his independence, he had been neither a member of the Baath party nor the Kurdish Peshmerga militia. The graduate of Baghdad University had seemed, at first, a perfect candidate. Almost immediately, however, Amin ran into problems that would become the hallmark of the trials of Saddam: public and political pressure on the judges’ bench. Amin’s hesitant, and sometimes courteous, manner towards Saddam led to outcry from Shia political figures. Citing unbearable interference, he tendered his resignation.
Amin remains bitter about his treatment — and critical of the politicisation of the trial process. In July, he insisted that at the time of his appointment he had made it clear that, given the international interest and question marks over the legitimacy of the court, the process should be seen to be humane and scrupulously even-handed. And that the defendants — even Saddam Hussein — should be regarded as innocent until proven guilty. ”I wanted to show the world that we have the ability to conduct a fair trial,” he said. Since his dismissal, Amin has made it clear that he had strong reservations from the outset and would have preferred the trial to have taken place in the safer environment of Iraqi Kurdistan — or indeed outside Iraq.
Perhaps most serious of all has been Amin’s acknowledgement that there has been serious political interference not only in the conduct of the Special Tribunal, but also with Iraq’s entire legal system. If his claims might once have been regarded as sour grapes from a judge who had been widely criticised, the removal of a second chief judge in September, this time the one presiding over the Anfal trial, makes his comments far more difficult to dismiss.
In the case of the removal of Chief Judge Abdullah al-Amiri, there was no question that he had been replaced at the behest of the prime minister’s office. And once again his dismissal was surrounded by accusations that the judge was being ”too soft” on Saddam. This time they may have considerably more justification.
In a bizarre series of exchanges last month, during the cross-examination of a Kurdish witness, Amiri denied Saddam was a dictator. The judge volunteered the comment during the cross-examination of a witness whose family disappeared during the anti-Kurdish Anfal campaign in the late 1980s. Abdullah Mohammed Hussein, a 57-year-old farmer, had given evidence that nine of his relatives had vanished during the campaign and that the bodies of three of them had been identified in a mass grave opened up since the Iraq war. He said he had visited Saddam to ask about their fate and that the president had answered: ”Shut up. Your family is gone in the Anfal.”
During his questioning of the witness, Saddam questioned whether he would have paid such a visit to him if the prosecution’s case was true. ”I wonder this — why you wanted to meet with me, if I am a dictator,” he said. The judge interrupted: ”You were not a dictator. People around you made you a dictator.”
”Thank you,” Saddam responded, bowing his head in respect.
The result has been a pair of trials that have not only damaged the reputation of the legal process, but betrayed the victims of the Saddam years. For a while some of the evidence has been deeply suggestive of witnesses being led by the investigating judges into making statements that fit the case, others speak of a brutality that demands to be properly addressed. It has come in a hundred little stories of deaths and broken lives, of families splintered never to be reunited. Ragged or meandering accounts that finish in a gunshot and a pool of blood — too commonplace even to make the media’s record of the trial.
They are stories like that of the unidentified witness on Wednesday, 18 October, who described fleeing with a friend when the Kurdish village of Khader Rayhan was attacked by air and ground forces on 9 April, 1988. The witness, a draft-dodger, who said he was not a fighter in the Kurdish Peshmerga, fled with his friend Abbas Nasradin, and Nasradin’s father, to hide in the mountains until lured from their hiding place by the offer of amnesty. When they returned to their village, they were arrested and ferried between several detention facilities. A few days later the men were put in trucks and taken to the Anbar desert. As the trucks drew to a halt they heard shots and people shouting.
Realising what those shots represented, those in the truck took a dreadful decision — to fight back in the knowledge that some or all of them might die. Placing the weakest prisoners in the back, a man named Salam announced: ”I will be the first to attack them.” As the guards opened the door Salam hit one of them but was shot and killed by another.
After that the guards opened fire on the vehicle, killing several people. As two bodies fell on top of him, said the witness, he fainted. He woke, still in the truck, to what he thought at first was the sound of water. ”It was a scary sound.” In fact it was the sound of gurgling blood. He got out and ran. As he fled through the desert, by the light of a full moon he could see the graves he had escaped.
Without a proper trial, without a fair and impartial process, this is not evidence to be tested. It is just words. – Guardian Unlimited Â