Judging Saddam Hussein
Inside the Trial of the Iraqi Dictator
In 2004, Michael Scharf wrote that the Iraqi High Tribunal set to try Saddam Hussein would be seen as no more than a “puppet court of the occupying power.” In numerous op-ed pieces, the war crimes expert and Nobel Peace Prize nominee criticized the fledgling court, as well as the war in Iraq. When he received a phone call from Baghdad asking him to help train the tribunal’s judges, just as he had for the trials of Yugoslavian and Rwandan war criminals, he was incredulous. The voice at the other end of the phone argued that he could either guide the proceedings from the inside or mock them from the outside. It was a good argument. Scharf accepted the invitation.
Along with fellow war crimes expert Michael Newton, Scharf helped write the rules of procedure, train judges and provide legal advice throughout the overthrown Iraqi dictator’s trial. In their new book, Enemy of the State: The Trial and Execution of Saddam Hussein, Newton and Scharf offer an inside look at the real-life courtroom drama, shedding new light on the historic proceedings.
On July 1, 2004, seven months after he had been captured, 67-year-old Saddam Hussein was brought before an Iraqi High Tribunal judge for arraignment. Under Western practice, the word “arraignment” can mean either the defendant’s first appearance in court before a magistrate or a later appearance, in which the defendant is advised of the formal charge and called upon to enter a plea. The purpose in this case was to inform Saddam of his rights and that he was a defendant in a criminal case before the Iraqi High Tribunal. The timing was critical because the occupation was about to officially end and it was important that the Iraqis establish their lawful right to maintain Saddam and the others in custody following the return of Iraqi sovereignty.
The former leader of Iraq was flown from the detention center by helicopter to a hastily converted building at Camp Victory, a sprawling U.S. military base near the Baghdad airport. Flanked by two Iraqi prison guards and four Iraqi policemen, Saddam was ushered into the small courtroom in handcuffs and with a chain around his waist. Dressed in a dark suit, polished brown shoes, and a crisp white shirt buttoned to the collar, Saddam sported stylishly coiffed hair and a neatly trimmed beard that was a far cry from his scraggly Ted Kaczynski/Unabomber look at the time of his capture in December 2003. The Arab world had never seen anything like this scene, which was broadcast repeatedly over the next 24 hours. In a region of the world accustomed to tyrants and despots, a seemingly invincible dictator was hauled before a court of his own citizens.
The television broadcasts of the event showed only the back of the judge’s head and his name was not mentioned for security reasons, but a few months later the world would learn that the man who read Saddam his rights and summarized the charges on that July day in Baghdad was 35-year-old Ra’id Juhi.
Built like a football player, the youthful judge was a graduate of Baghdad Law School. He was originally one of the investigative judges of the CCCI, Iraq’s newly established criminal court for ordinary crimes. Judge Ra’id had come to the attention of American authorities in 2003 while serving in Najaf when he courageously signed an indictment for notorious Shiite warlord Moqtada al-Sadr, charging him with murder. The public revelation of the Moqtada al-Sadr indictment placed the young judge and his family in great danger, and they were relocated for their protection to the International Zone in Baghdad, where they resided until the end of the Dujail trial [Saddam’s trial for attacks on the town of Dujail]. Because of his solid command of English and his unflappable demeanor, Ra’id Juhi became an obvious choice to head the investigation phase.
When the authors asked him why he agreed to serve as the investigative judge for such a sensational, challenging, and dangerous case Judge Ra’id answered simply: “This is my job, my responsibility, my duty to my society.” He added, “Many Iraqi people thought that there was no law, no rules, no order, and we wanted to bring the rule of law and justice back to Iraq.” In response to the follow-up question of how it felt to be face-to-face with one of the world’s most ruthless dictators, Judge Ra’id merely shrugged his shoulders and said, “I just tried to think of him as an ordinary criminal defendant.”
The guards removed Saddam’s handcuffs and gently guided him to his chair across from Judge Ra’id, who sat behind a table. The dictator and the judge faced each other about eight feet apart, with a low railing separating them. The first moments were palpably tense. Saddam, who apparently thought he was about to be summarily executed, was visibly anxious. But in a preview of things to come in the later trial, during the 26-minute session, Saddam went from being nervous and hesitant to being confrontational and belligerent, while at the same time displaying legal acumen and even a sense of humor. CNN correspondent Christiane Amanpour, who was one of three reporters permitted to observe the proceedings, described Saddam as looking like a shadow of his former self, alternatively downcast and defiant. Answering the judge’s request to state his name for the record, Saddam said, “I am Saddam Hussein, the president of Iraq.”
“Former president of Iraq,” Judge Ra’id corrected. To which Saddam insisted, “No. Present. Current. It is the will of the people.”
As the hearing got under way, Saddam began to challenge Judge Ra’id, asking who he was and under what authority he was holding the hearing. Judge Ra’id proceeded to explain that the tribunal that would be trying him had been set up under the U.S.-led occupation. “So you are representing the coalition?” Saddam asked. “No,” the young jurist replied, without showing emotion or raising his voice. “I am an Iraqi representing the Iraqi judicial system.”
Next, Judge Ra’id summarized the general charges against the former dictator, which included gas attacks on Kurdish villages, mass murders in the suppression of uprisings, political assassinations, and the invasion of Kuwait. Saddam sat passively as the judge read the charges until Kuwait was mentioned, at which point he exploded: “How could Saddam [referring to himself in the third person] be tried over Kuwait? He defended Iraq’s honor and revived its historical rights over those dogs.” And when Judge Ra’id told Saddam that Iraqi law would be governing the proceedings, the former dictator remarked, “So now you are using the law that Saddam signed against Saddam.”
When Judge Ra’id asked him if he could afford a lawyer, Saddam sarcastically replied, “The Americans say I have millions hidden in Switzerland. How can I not have money to pay for one?” He then added with a smile, “I don’t want to make you feel uneasy, but you know that this is all a theater by Bush, the criminal.” As the session drew to a close, Judge Ra’id handed Saddam a sheet of paper to sign, indicating that he had been informed of the charges and understood his rights. But Saddam refused to pen his name to the document, saying he would not sign anything without lawyers present. By this time, Saddam’s wife and daughters had retained a team of 20 foreign defense lawyers, among the best money could buy.
The hearing ended with Saddam asking the judge, “Have you finished?” “Yes,” Judge Ra’id answered. “Khalas! [meaning ‘finished’],” Saddam exclaimed. The scene was essentially repeated 11 more times that day, as Judge Ra’id arraigned each of the other senior members of the Baathist regime. Over the next several months, Judge Ra’id would interview the defendants (always with their lawyers present), and compile a dossier, called a referral file, against Saddam and the others, containing over a thousand pages of witness statements and incriminating documents—many bearing the former leader’s signature. In the Iraqi system, the investigative judge serves to collect all available evidence, whether it tends to incriminate or exonerate a potential defendant. Judge Ra’id told the authors [of this book] that during the Dujail investigation, he kept at least four copies of the entire referral file hidden in various places at all times because he was worried about things that could derail the investigation—bombs, rockets, fires. One was stored in the secure evidence unit, one was kept in the Iraqi High Tribunal office building, and two more were kept in secret places that he changed from week to week.
Training the Judges
While Judge Ra’id and the other investigative judges were busy poring over witness statements and documents, the Regime Crimes Liaison Office (RCLO) decided the time had come to begin to train the newly appointed Iraqi High Tribunal judges to preside over some of the most complex and challenging cases ever to be tried. First the Department of Justice and JAG lawyers who made up the RCLO held a series of afternoon sessions in Baghdad to familiarize the judges with the substantive offenses, unique defenses, and procedures that would govern their trials. Next, in a trip organized by the U.S. Institute of Peace, a dozen of the judges were transported to The Hague for three days of informal meetings with the international judges and the prosecutors of the Yugoslavia Tribunal. The group especially benefitted from the discussion of lessons learned from the plodding trial of Slobodan Milosevic, and from viewing the sophisticated software and monitors that the Hague-based tribunal employed in its three high-tech courtrooms.
The third phase of their training would consist of several weeklong sessions featuring some of the world’s foremost experts in international criminal law; these sessions were held in London and Stratford-upon-Avon. In early September 2004, the RCLO enlisted the authors to design and lead these sessions. (First-person references in this section are to Michael Scharf.) Although I had recently conducted a series of human rights training sessions for Iraqi judges and lawyers held in Dubai, UAE, I was quite surprised by the call from Baghdad.
“Professor Scharf, would you be willing to help us train and provide legal advice to the judges who will be presiding over the trial of Saddam Hussein?” Greg Kehoe, of the Regime Crimes Liaison Office, asked in a surprisingly clear voice. “I’m not sure you have the right guy,” I replied. “Are you aware that I’ve taken strong public stands against the U.S. invasion of Iraq, and I have been highly critical of the Iraqi High Tribunal?”
In fact, I had recently published an article in the widely read Journal of International Criminal
Justice that advocated for an international trial for Saddam Hussein and opined that the Iraqi High Tribunal would be viewed as a U.S. puppet court and that the Iraqi judges would not be up to the challenge of prosecuting the former dictator.
“Yes, we’ve done our homework,” the voice from Baghdad answered. “We also know that you helped create the Yugoslavia Tribunal when you worked for the Department of State Offi ce of Legal Adviser, that you’ve trained judges from all over the world in international humanitarian law, and that the War Crimes Research Office you run at Case Western Reserve University currently provides research assistance to the Yugoslavia Tribunal, the Rwanda Tribunal, the Special Court for Sierra Leone, and the International Criminal Court.” He then told me that the content of my training sessions would be completely up to me to design, and that I could publicly say anything I wanted about the IHT when I returned from the training sessions. “Listen, Professor Scharf,” he pressed. “Do you want to stay on the sidelines and hurl criticisms at the tribunal, or do you want to get involved in an effort to make it a more fair and effective judicial process?”
I found this appeal hard to resist, as it reminded me of a favorite quote from President Theodore Roosevelt that Mike Newton had long ago shared with me—words upon which we have both endeavored to approach life’s challenges. Roosevelt said: “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; … who at best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”
A month later, on Oct. 13, 2004, Mike Newton, four other international trainers, and I arrived at the Crowne Plaza London—St. James Hotel, where we were introduced to the 42 newly appointed judges of the Iraqi High Tribunal. The other trainers included Geoffrey Robertson, an internationally recognized author in the field and a sitting judge serving on the Special Court for Sierra Leone; Professor Christopher Greenwood of the London School of Economics; Joanna Korner, former senior prosecutor at the Yugoslavia Tribunal; and Gabrielle Kirk McDonald, the former president of the Yugoslavia Tribunal.
The judges were a mix of ethnic Shiites and Kurds (including some Sunni Kurds), but no former Baathists as the IHT statute precluded their appointment. They ranged in age from the youngest, 35-year-old Ra’id Juhi, to Judge Ra’ouf Rasheed Abdul Rahman who was 30 years his senior.
They were dignified and professional, and their sincerity was apparent even across linguistic barriers. But they knew that they were unprepared for the rigors that lay ahead. Saddam had prevented Iraqi lawyers from traveling abroad to learn the detailed provisions of modern international criminal law. Iraqis were often embarrassed that the regime had kept them from staying abreast of the latest developments in the integrated body of law that developed since the end of the Gulf War in 1991. The trainers in London were notable experts in the complex body of international law that would need to be used by the Iraqis.
The judges were attentive both in large groups and in the small working groups. This week of training was followed by a mock trial held at Stratford-upon- Avon, as well as more training at the International Institute for Higher Studies in the Criminal Sciences in Siracusa, Italy. The tribunal investigators had a special training session dedicated to their unique needs held in Bournemouth, England. The director of the RCLO at the time, Greg Kehoe, helped to arrange and fund these training events. Kehoe, an American, is a booming man with an imposing presence. He believed that the Iraqis could deliver a fair and independent trial. “The whole process is very important for re-establishing the rule of law in Iraq,” he would say. “The trials not only have to be fair, but also have to be seen to be fair. A rush to judgment would do nothing to restore the Iraqis’ faith in the rule of law.” These aspirations would be put to the test in the Baghdad courtroom almost exactly two years later.