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Professor Anthony D'Amato

Northwestern University School of Law
JURIST Guest Columnist

Just five days after the establishment of the Iraqi Special Tribunal for
Crimes Against Humanity,

Saddam Hussein was captured hiding in a hole in the ground. He will now have
the starring role of defendant at the new tribunal.

[1] If this were a Hollywood movie, critics would complain that it was not
true to life.

The case against Saddam could be open-and-shut. He ordered the murder of
Kurds and many of his political opponents during his wars against Iran and
Kuwait. Murder in these circumstances is a violation of international
humanitarian law.

But murder will only be one of many counts against Saddam. A multi-count
indictment might appear to be redundant from a legal point of view, but a
trial is as much about educational psychology as it is about law. For one
thing, as Professor Lon Fuller used to say, the trial brings home to the
defendant the extent of his antisocial behavior better than any punishment.
The defendant throughout the trial is paying close attention to the
testimony, hoping to contradict it, and increasingly becoming convinced that
the facts are going to convict him. The more the trial goes on, the less he
can successfully resort to psychological denial. Something like this process
seems to be going on in the trial of Slobodan Milosevic at the Hague
Tribunal; now in its second year. The physical and psychological toll on the
defendant is written plainly on his face and in his recurrent illnesses in
the detention center. These illnesses are not fake; the Dutch doctors
servicing the detention center (as I know from my own experience as a
defense counsel there) are skeptical and meticulous.

A second reason for having a thorough trial even in an open-and-shut case is
the educational effect upon public psychology. The important target audience
is those Iraqi citizens who benefited from Saddam's regime. Although Saddam
built lavish palaces for himself, the people who built them were paid good
wages. The merchants who displayed Saddam's picture in their shops, and who
had nothing but praise for his regime, did very well for themselves
economically. The soldiers in his army and elite corps did quite well. All
the relatives and close friends of leaders in Saddam's government were
enriched in various ways. Teachers, doctors, scientists, and other
professionals were pretty much left alone so long as they never criticized
the regime. These are the social leaders who will be watching the trial on
public television and who will be listening to the evidence.

Trials have an inherent drama. Will the accused be convicted? Even if
first-degree murder is an easy count, what about genocide? What about crimes
against humanity? The verdicts on these crimes will remain in doubt until
the final denouement. People will mentally evaluate the points scored by
Saddam's attorney who will challenge the evidence as it is slowly introduced
at trial. And who will not be glued to the television set if and when Saddam
himself takes the stand?

The Nuremberg precedent will surely be cited as a reason why the tribunal
should include in Saddam's trial a number of his associates - people whose
faces appeared on the 55 playing cards handed out in Iraq last March
(Saddam, as everyone knows, was the Ace of Spades.) At the trial of the
major war criminals at Nuremberg, 22 German defendants, mostly Nazis, were
sentenced at the end of the first trial. However, if Hitler had been alive,
it is unlikely that he would have been tried along with the other
defendants; he probably would have been tried separately and first. The
reason is that Hitler's presence then, and Saddam's now, would give the
other defendants a chance to say "He ordered me to do it, and we all know
that anyone who disobeyed his orders was summarily executed." Attacks by one
defendant against another in a multi-defendant case can drive a wedge of
prejudice through the prosecution's case. To be sure, lawyers will recognize
that "superior orders" is not a defense in cases of genocide, war crimes, or
crimes against humanity. Indeed, the new statute of the Iraqi Tribunal
explicitly provides in article 15, "The fact that an accused person acted
pursuant to an order of a Government or of a superior shall not relieve him
of criminal responsibility, but may be considered in mitigation of
punishment if the Tribunal determines that justice so requires." Yet this
rule of law will not necessarily stop a given defendant, who is after all on
trial for his life, from blurting out in open court and in front of the
television cameras, "He told me to do it!" These are guerrilla tactics for
the defense, to be sure, but what is a court to do? If it muzzles the
defendants, the public will say that it's a kangaroo court. If it holds them
in contempt of court, that certainly will not deter them. Thus a gambler's
odds would favor an initial trial of Saddam Hussein alone.[2]

Apart from Saddam and his associates, who else might eventually be tried by
the Iraqi war crimes court? Since the tribunal has jurisdiction only over
Iraqi nationals or residents of Iraq, no American or British soldiers or
their commanders can be tried there. This restriction is not consequential
in my opinion, inasmuch as the Iraqi invasion of March 2003 was perhaps the
most war-crimes-free military invasion in history. There were some scattered
acts of negligence on the part of soldiers in active duty, but it would be
hard to prove the degree of wanton negligence necessary to make a showing of
intentional war-crimes culpability. However, the jurisdictional restriction
to Iraqis may have been too cautious in that it disables the tribunal from
trying Saudis or Syrians or even Al Quaeda members of other nationalities
who may have assisted the Saddam regime in the commission of its crimes
against humanity.

By contrast, another jurisdictional restriction is rather progressive from
the point of view of the development of humanitarian law. The tribunal's
jurisdiction extends only to natural persons. This means, for example, that
the Baathists as a religious entity can not be indicted. At Nuremberg, the
Nazi Party was held to be a criminal conspiracy, perhaps as a way to make it
easier to convict persons just because of their membership in the Party. But
"guilt by association" usually serves no useful purpose; certainly, in the
aftermath of Nuremberg and the reconstruction of Germany, the past of many
former Nazis who had skills needed for reconstruction was conveniently

An important, but curable, drawback of the Statute of the Iraqi Tribunal is
the impression it conveys of 'prosecutor's justice'. There is very little
mention of the role of, or accommodations for, defense counsel. It seems
that every new international tribunal is fixated on the task of convicting
criminals, and has to learn all over again the importance to its world image
of having a 'level playing field' between prosecution and defense. For if
defense counsel are not well qualified and independent, the tribunal will
suffer in the mind of the public.

In this connection, let me recount briefly my initial impressions of the
International Criminal Tribunal for Former Yugoslavia when I arrived at The
Hague as lead counsel for Milan Kovacevic, the first person charged by the
Tribunal with the crime of genocide. After getting a visitor's pass, I went
to the office of the Registrar, where I was told to wait outside until
someone came to see me. The only place to wait was the dark, cavernous entry
foyer where there were uncomfortable steel benches and various soft-drink
machines. Presently a clerk from the Registrar's office came to see me with
some forms that I had to fill out. She sat on one of the benches and did not
invite me to go with her to her office. Then the prosecutor on my case came
in, introduced himself, and raised the question of whether my client was
willing to plead guilty and cooperate with the prosecutor's office in return
for consideration during sentencing. "Where's your office?" I asked; "Can't
we talk there?" He told me that the prosecutors occupy the entire third
floor of the building, and that the premises are off limits to everyone
else. I said "You mean I can't go there and watch all your people throw
paper airplanes at me?" "No," he said humorlessly, "it's off limits to
civilians." He had been a JAG officer in the U.S. Army before taking up a
job at The Hague.[3]

Not only were the prosecutors safely ensconced on the top floor above the
judges and courtrooms, but they also wore UN badges that enabled them to fly
on military planes during their fact-finding missions in Yugoslavia. Some
weeks later I asked for a similar temporary badge so that I could fly in a
military plane to Belgrade, I was informed that I would have to risk my life
by driving there or take public transportation. I suppose it was a sub-text
that if I didn't return alive, no one would miss me. Indeed, the chief
Registrar was obviously partial to the judges and the prosecutors. Although
it was a formal part of her job to treat prosecutors and defense counsel
equally, there was no mistaking the attitude written across her features
that folks like me were at best a necessary evil. We were there to subvert
the work of the tribunal, to free murderers, thugs, and genocidaires, and to
earn blood money in the process. When I said rather firmly that I regarded
myself as an officer of the court and that my role was to help see that
justice was done, all she said was that she didn't ask me to take this job,
and if I didn't like it, I could go back to Chicago.

The harder the working conditions for defense counsel at international
criminal tribunals, the less persuasive will be the final opinions of the
judges and the less respect will be accorded their judgments. Defense
counsel in the Yamashita Case in 1945 were given insufficient time to
prepare; the result was a decision on command responsibility that has come
back to haunt American military leaders today. The Nuremberg tribunal's
unjust decision against Admiral Doenitz has ever since been a black mark
against public receptivity of the Nuremberg results; again, defense counsel
was overworked and underpaid. Fortunately, the situation of defense counsel
in Iraq may soon be modified. Under Article 37 of the new Statute, the Iraqi
Governing Council has the power to establish other rules and procedures for
the tribunal.

Overall, however, the Statute of the new Iraqi tribunal is a fine
accomplishment. We should be grateful that there apparently was no pressure
to establish instead a Truth and Reconciliation Commission, for whatever the
merits of truth commissions may be, the fact is that they do not operate to
deter future war criminals. Iraq's enactment is a very important step
forward for the cause of international human rights. Bringing heads of state
to accountability for criminal behavior seemed, for many years after
Nuremberg, to be a one-sided, one-shot event. In just the last ten or
fifteen years, to everyone's surprise, the idea has changed the fundamental
expectations of people everywhere toward their own governmental leaders.

1. As I write this on the day Saddam's capture was announced, the United
States has so far not said that he will be turned over to the new Iraqi
tribunal. President Bush's brief report to the nation did not mention the
issue. The United States may be waiting to see the composition of the
Tribunal before making its decision. It may be 'holding back' Saddam in
order to have more leverage on the selection of judges, prosecutors, and
advisers. It's also possible that immediate pressure from the new Governing
Council may force an earlier resolution of the issue. However, I am
confident that Saddam will end up before the Iraqi Tribunal.
2. After the trial is well underway, other trials against other leaders can
3. I describe the complex plea bargaining in a separate article, Defending a
Person Charged With Genocide..

Anthony D'Amato is the Leighton Professor of Law at Northwestern University
School of Law. He was lead counsel for Milan Kovacevic, the first person
charged with the crime of genocide by the International Criminal Tribunal
for the Former Yugoslavia at The Hague.
December 15, 2003

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