Debate: did Saddam get a fair trial?

• Position: Symposium: 'Lessons from the Saddam Trial' - Discussion

On October 6, 2006, the Frederick K. Cox International Law Center sponsored a public symposium reflecting on the proceedings of the Iraqi High Tribunal. The following transcript is excerpted from the day-long event. The speakers' remarks have been edited for length. ([dagger])

MODERATOR:

Gary Simson, Dean, Joseph C. Hostetler-Baker & Hostetler Professor, Case Western Reserve University School of Law

ARGUING NO:

Kevin Jon Heller, Faculty of Law, University of Auckland, New Zealand

Kenneth Roth, Executive Director, Human Rights Watch

ARGUING YES:

Michael P. Scharf, Professor of Law and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law

Michael A. Newton, Acting Associate Clinical Professor of Law, Vanderbilt University Law School

DEAN SIMSON: I thank all of you in the audience for coming and those of you who will be hearing the debate or are hearing it right now as it is broadcast.

This conference comes almost a year since Saddam Hussein and seven of his cohorts went on trial before the Iraqi High Tribunal. They were charged with destroying an Iraqi town and torturing and murdering its Shiite inhabitants. The proceedings, which were televised around the world, were anything but orderly, including events such as assassinations of defense counsel and resignation of judges. The tribunal will reconvene on October 16[, 2006] for a judge's review of the process, and at that point, prior to verdict, it is quite possible some witnesses may be recalled.

The debate that follows will look at the fairness of the trial. Did it comport with international standards of due process? Two of the people seated here will argue that it was unfair. Professor Kevin Jon Heller, a member of the law faculty of the University of Auckland in New Zealand, will be up first. His life, as well as his teaching and writing, are profoundly international. He has a J.D. from Stanford, several years of criminal defense practice in Los Angeles, and then headed off to New Zealand.

Kenneth Roth will speak next. He is the executive director since 1993 of Human Rights Watch, which, as you know, performs extraordinarily important functions as far as investigating, reporting on, and attempting to reduce human rights violations around the world. He is a graduate of Yale Law School, and Human Rights Watch has grown enormously in stature and scope under his leadership.

[Among the] two who will argue that the trial was fair is Professor Michael Scharf, of this law school, who was a member of the team of experts who trained the judges of the tribunal that tried Saddam Hussein. With Gregory McNeal, he co-authored the first book that has appeared on the trial. He is a Duke Law graduate, and he has been an invaluable member of this faculty since coming here in 2002.

Michael Newton of the Vanderbilt Law faculty will also speak. He is a graduate of the University of Virginia Law School. He practiced law in the military for some time. He served as senior advisor to the United States Ambassador at Large for War Crimes Issues.

The debate will go as follows: First, Professor Heller and Mr. Roth will each get twelve minutes to argue why the trial was not fair. And then, Professors Scharf and Newton will get twelve minutes to argue why it was fair. In the same sequence then, each participant will get two minutes to respond to arguments from the other side. So let me begin with the first speaker, Professor Heller.

PROF. HEELER: First, thank you to Michael [Scharf] and everyone else for having me here.

I want to begin my presentation by offering three basic assumptions that frame my approach to this issue. First, there is no question in my mind that Saddam Hussein is guilty of most, if not all, of the charges against him. I also believe, however, that Saddam would have been found guilty after a perfectly fair trial ... that you did not need to cut corners in order to convict him. And third--and probably most important--the fact that Saddam is guilty of most, if not all, of the charges against him in no way justifies depriving him of the [ICC Statute's] legal guarantees required by international law.

Now, I want to focus on five critical flaws with the IHT's procedures, flaws that I believe undermine the fairness of the Dujail trial and perhaps, given the nature of this get-together, will continue to undermine the fairness of any trial that is held. So I want to focus really on the statutory law as opposed to simply the conduct of the trial itself. And my point is hopefully constructive and not simply critical. Just as I feel about international criminal law generally, if there were not so much promise, if there were not so much strength, there really would not be much point in offering criticisms.

So that said, the first flaw I want to focus on is the burden of proof. I believe [the IHT] used an inadequate burden of proof. According to the code of criminal procedure, the tribunal could convict, "based on the extent to which it is satisfied by the evidence presented during any stage of the inquiry or the hearing." Now, there are always difficult translation issues. It has been suggested that instead of "satisfied," the translation should be "conviction." But as I will try to explain, even if that is the case, it is still--at least under international standards--an inadequate burden of proof.

Every tribunal since the NMT, since the Control Council trials, has used "proof beyond a reasonable doubt." The Human Rights Committee has continually emphasized proof beyond a reasonable doubt is necessary to give effect to the presumption of innocence. And I think it is important--despite the attention the issue has gotten from Amnesty International, Human Rights Watch, etc.--to focus on the burden of proof here, because Professor Scharf has claimed on a number of occasions that, in fact, the standard that the IHT uses is not inadequate. And I am going to quote him ... he says, "The traditional standard with civil law judicial systems like France and Holland employ a phrase that is functionally equivalent to the American 'beyond a reasonable doubt' standard." With all due respect to Professor Scharf, I do not believe that is correct. The only civil law system that uses even a remotely similar standard is, in fact, the Netherlands, which uses a "gain the conviction" standard. That standard is arguably more stringent than a "satisfied" standard, if that is the correct interpretation or translation.

But even that standard has been criticized within the civil law community as not being stringent enough. By contrast, France uses an "inner-most conviction" or an "intimate conviction" standard that the European Court of Human Rights says is, in fact, equivalent to "beyond a reasonable doubt". Italy uses a "definitive conviction" standard. Germany uses a leaves-no-reasonable-doubt standard. Spain uses a "reasonable doubt" standard. Russia uses a "reasonable doubt" standard. Greece uses a "reasonable doubt" standard. Venezuela uses a "reasonable doubt" standard. So really, by any civil law standard, the IHT's "satisfaction" standard or "convinced" standard is inadequate, and I think that is a very important point. Professor Scharf continually dismisses the IHT's flaws by analogizing to the harmless error doctrine that we all know is such an integral part of American criminal law. If we extend that analogy further, in the U.S. an inadequate burden of proof is never harmless error. It is, per se, a structural error, requiring reversal of the defendant's conviction, even if the defendant never objects. So this is an extremely critical structural flaw regarding the burden of proof that the IHT uses.

The second flaw--and we have heard a lot about it so far--is the IHT's lack of independence from the Iraqi government. I will not bore you with the same details that we have heard earlier, but I just want to root the problem in the text of the statute.

Article 4 of the IHT Statute gives the Iraq Government complete and unreviewable discretion to decide which judges remain and which do not remain on the Tribunal. It says the Presidency Council, in accordance with a proposal from the Council of Ministers shall have the right to transfer judges and public prosecutors from the court to the higher judicial council for any reason. And we have seen--as was discussed earlier--the consequences of that: two judges removed at the Dujail trial, most recently through a specific invocation of Article 4 to remove the Anfal judge.

Now, nobody wants a biased tribunal, whether that tribunal is for or against Saddam. But what is critically important to note is that there are already provisions in the IHT Statute for removing a biased judge. Rule 8 of the Rules of Procedure enacted by the IHT allows for either party to make a motion to remove a biased judge and requires the decision to be made on that motion within three days.

What is the difference between Article 4 and Rule 8? Well, Rule 8 is an internal process. It is the judiciary itself deciding whether a judge is biased--whereas Article 4 is the Iraqi government--the executive--determining for the judiciary who will be on the tribunal and who will not. And that is where the fundamental--and so necessary--independence of the IHT breaks down.

Third--and this one I think can not be emphasized enough--the tribunal does not confirm an indictment until the middle of a trial, after the close of the prosecution's case in chief. One of the provisions of the Iraqi Code of Criminal Procedure describes the initial phase of the trial as hearing the testimony of the complaining witness and the prosecution's evidence. And then you have paragraph 181, which provides, "If it appears to the court after the aforementioned steps have been taken that the evidence indicates that the defendant has committed the offense being considered, then he is charged as appropriate." The charge is read to him and clarified, and he...