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Hussein Verdict Offers Lessons for Future Tribunals, Say Two U.Va. Visiting Law Professors

November 8, 2006 — The verdict calling for the death of Saddam Hussein came as no surprise to visiting University of Virginia law professors Chibli Mallat and Linda Malone, who recently assessed the trial of Hussein and others involved in the murder of 148 Shiite citizens of Dujail in retaliation for an assassination attempt on the former Iraqi president.  Malone held an open session of her Iraqi Tribunal Clinic at the Law School to discuss the implications of the verdict Nov. 6.

The tribunal, which consists entirely of Iraqi judges, Malone explained, has jurisdiction over both international and domestic charges. Crimes such as genocide, crimes against humanity, war crimes, squandering of public resources and assets, waging a war of aggression, and manipulation of the judiciary are within the jurisdiction of the tribunal.

A host of criticism was levied at prosecutors for leading with the Dujail incident.  But in comparison to other crimes committed by Hussein, it was the most straightforward, concise, and concrete, and prosecutors determined it was a good starting place, Malone said. Hussein had admitted that he was responsible for ordering the mass trials that executed, imprisoned, and tortured Dujail citizens, as well as for destroying date trees and farmland. There was also extensive documentation of Hussein’s orders carrying out these crimes.

Hussein and his head of secret police, Barzan al-Tikriti, were sentenced to death for willful killing, forced deportation, imprisonment, torture, and other inhumane acts. The former vice president of Iraq, Taha Yassin Ramadan, received life in prison. Awad Hamed al-Bandar, the judge of Hussein's Revolutionary Court, was sentenced to death for willful killing by virtue of his sentencing 148 people to death without due process. Three local Baath Party officials who helped round up individuals were given 15 years in prison for willful killing, forced deportation, and torture. One Baath official was acquitted on all charges due to a lack of evidence.

Mallat, who was instrumental in advocating for Hussein’s trial by an international tribunal, has long been familiar with the former Iraqi president’s atrocities.

“Saddam Hussein was behind the assassination attempt of Ambassador Shlomo Argov, the Israeli ambassador to London…It was later discovered that [the arrested suspects had] connection[s] with the Iraqi embassy,” Mallat said.  “And that’s my frustration with the Iraqi tribunal. These things have not come out and they should have come out.”

Hussein has continually committed horrific crimes throughout his reign because he was never contested, Mallat explained.  “There is not a single nationality in the world that has not suffered Saddam Hussein’s brutality.”

It is important, Mallat continued, that this trial be successful.  Mallat pushed for the trial to be moved outside of Iraq due to the danger to those involved in the trial, which is one of the reasons Mallat turned down a position in the court. Many people were killed in the process of trying Hussein and his co-defendants.

Even if the trials cannot be moved outside of Iraq, Mallat said, “I still believe that the case is so important that you need to bring in, whether it continues in Iraq or not, some serious improvements on the conditions in which it is taking place.” Hussein’s antics and outbursts in the courtroom should not have been tolerated, he asserted.

“It was no surprise to see Saddam Hussein and his defense counsel and others taking the positions that they did, disrupting the courtroom, throwing things in the courtroom, showing up half-dressed, you know, whatever shenanigans there might have been,” Malone added.  “But even though there may have been the legal basis for clamping down much more severely on both the defendants and the defense counsel, perhaps it was better to let the shenanigans continue rather than engender more criticism for anti-defense bias for reacting more harshly to these antics.”

The United States controlled the trial’s television feed, which was cut off at times to control Hussein’s “rants and raves,” Malone said. Even though shutting off the feed mitigated distracting behavior, some considered the action to be undermining the process because Iraqis were not at the controls.  

“The ferocity of the Iraqi anger against Hussein with the demand for the death penalty, which we’ve discussed in the clinic, has been the principal reason why there has been no United Nations support. The U.N. of course would never support a tribunal of any kind…that allowed for the death penalty and it became fairly clear early on, it’s my understanding, that the death penalty was absolutely intractable in terms of the Iraqi demands as to what had to be provided in terms of the sentence.”

Under Iraqi law, the execution of Hussein has to be carried out within 30 days, Malone explained.  There will be an automatic appeal, which is a function of the tribunal charter and the Iraqi criminal code. The appeal will probably take several months, forestalling the execution.

A Lebanese tribunal is currently under construction with Mallat’s support.  The tribunal is being set up with U.N. support, without the death penalty—a remarkable feat because the Lebanese people are as angry as the Iraqis are with Hussein, Malone said. “Much of that same motivation and anger and demand for that penalty had to be relinquished in order for it to proceed.”

One lesson Mallat will take from the Iraqi tribunal is that the Lebanese tribunal should be accelerated as much as possible, “The longer you wait, the more people get killed in association with the investigation of the tribunal,” he said.

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