the smoking gun in saddam's trial

[samclemens]

This blog is a great discussion of the saddam trial:http://www.law.case.edu/saddamtrial/index.asp

 

the best part is further down where he discusses the "smoking gun" evidence against saddam. for people who still consider this trial and/or the evidence against saddam to be illegitimate, read up:

 

"Is the Execution Order the Prosecution’s “Smoking Gun” Against Saddam?

Yes – by Kevin Jon Heller

 

During the February 28 trial session, the Chief Prosecutor, Jafaar al-Moussawi, presented a presidential order allegedly signed by Saddam Hussein approving the execution of the 148 Dujail villagers whose deaths are the centerpiece of the case against Saddam and his co-defendants. Earlier, Al-Moussawi has presented a document signed by Awad al-Bandar, the former Chief Justice of the Iraqi Revolutionary Court, announcing that the villagers had been sentenced to death and listing them by name.

 

There is no question that the execution order is critical to the prosecution’s case, because it provides the first documentary link between Saddam and the executions. But is it the proverbial “smoking gun”?

 

edit: that smile in the middle was inadvertant from code citation

 

At the outset, it is important to note that we do not know the precise charges that have been brought against Saddam – the Iraqi High Tribunal (“IHT”) has not made his indictment public. Nevertheless, it is safe to assume that he has been charged, inter alia, with the crime against humanity of “Willful Murder,” a violation of Article 12(1)(A) of the IHT Statute. It is that crime I will focus on here.

 

According to the IHT’s Elements of Crimes, which “shall assist” the IHT in interpreting Articles 11, 12, and 13 (i), Willful Murder has three elements:

 

1. The perpetrator willfully killed one or more persons;

 

2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and

 

3. The perpetrator knew that conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

 

Although Saddam did not personally kill the villagers, Article 15(2)(B) of the IHT Statute provides that a person who orders the commission of a crime is no less criminally responsible for it than the actual perpetrators. The real question, then, is whether the execution order satisfies the elements of Willful Murder under Article 12(1)(A).

 

Given the evidence that has been presented at trial thus far, it seems clear that it does. The first element is satisfied, because the order led directly to “one or more persons” – 148, in fact – being killed. “Willful” here is synonymous with “intentional” (ii) and simply reflects the IHT Statute’s general requirement that the defendant must have “meant… to cause a particular consequence” when he committed the act in question (iii). Saddam obviously intended for the condemned villagers to be killed, so there is no question that he acted intentionally for purposes of Article 12(1)(A).

 

The second element is also satisfied. “The widespread nature of the attack can be derived in particular from the number of the victims” (iv). 148 executions most likely qualify as a “widespread” attack under this standard; although no international court has ever specified a minimum number of victims, the International Law Commission’s commentary to the relevant provision speaks only of a “multiplicity” of victims (v). Moreover, even in the unlikely event that the IHT were to hold that 148 executions are not sufficient to satisfy the “widespread” requirement, the executions would still clearly qualify as a “systematic” attack. In the context of crimes against humanity, “systematic” simply refers to “the organized nature of the acts of violence and the improbability of their random occurrence” (vi). It is difficult to imagine a more organized, less random series of acts than Saddam’s brutal reprisal against the Dujail villagers following the attempt on his life.

 

Finally, the third element is easily satisfied. Saddam personally ordered the executions; insofar as they qualify as a widespread or systematic attack, therefore, he clearly knew and intended his conduct to be part of that attack.

 

The second and third elements of Willful Murder, of course, require the attack be directed “against a civilian population.” Saddam has argued that the villagers were executed because they had participated in the attack on his life – actions that would arguably have deprived the villagers of their civilian status (vii). Nevertheless, it should not be difficult for the prosecution to show that most of the executed villagers did not take part in the assassination attempt; after all, the doomed group contained at least 10 minors, including a child who was 11 years old. The distinction is critical, because the presence of a small number of combatants among an otherwise non-combatant population does not deprive that population of its civilian status (viii).

 

Saddam has also argued – more centrally to his defense – that the death sentences were lawfully imposed by the Iraqi Revolutionary Court and that, as the President of Iraq, he had every right to order them carried out. That argument seems to have impressed various observers of the trial; a representative of Human Rights Watch, for example, commented: “What we saw today was not Saddam admitting guilt, but admitting to the fact that he acted in accordance with his official duties and powers.”

 

With all due respect to Human Right Watch, that simply isn’t accurate. Although Paragraph 223 of the Iraqi Penal Code of 1969 prescribes death for murdering the President of Iraq, Paragraph 31(1) expressly provides that the punishment for attempting a felony punishable by death is not death but life imprisonment. As a result, Saddam did not have the authority to order the executions even if they were involved in the assassination attempt – the order was nothing more than an ultra vires act neither legitimated nor justified by his authority as President of Iraq.

 

It is difficult to overstate the importance of the ultra vires nature of the execution order. If Saddam could not lawfully have ordered the villagers to be executed, the execution order is, in fact, the prosecution’s “smoking gun.” It does not matter whether Saddam properly referred the villagers’ cases to the Iraqi Revolutionary Court. It does not even matter whether, as al-Moussawi contends, the death sentences were imposed after “imaginary” trials. By signing the execution order, Saddam essentially admitted that he committed Willful Murder as that charge is defined by the Article 12(1)(A) of the IHT Statute – and most likely signed his own execution order, as well."

 

edit: that smiley is inadvertent from code citation

Edited March 12, 2006 by samclemens

[Gregory Pratt]

Dude! Saddam's as good as dead.

[kevin57]

I honestly can't believe there's anyone, no matter what their ideology, who does not believe Saddam to have been a genocidal maniac. Of course, there are those who don't believe in the Holocaust, either. :banghead

[NorthSideSox72]

Seriously, who are the supposed doubters on this board? I don't think I've seen anyone here post anything about Saddam not being guilty of these things.

[samclemens]

Seriously, who are the supposed doubters on this board?  I don't think I've seen anyone here post anything about Saddam not being guilty of these things.

 

im not calling anyone out by any means. its just an interesting topic, and i cant help but put a bit of a republican slant on everything i say.

[Soxy]

im not calling anyone out by any means. its just an interesting topic, and i cant help but put a bit of a republican slant on everything i say.

Saying Saddam is a murderous bastard really isn't that republican--it's sort of a bi-partisan declaration. . .

[samclemens]

Saying Saddam is a murderous bastard really isn't that republican--it's sort of a bi-partisan declaration. . .

 

this isnt about calling saddam something we all know he is. its about the legitimacy of the trial of saddam and the evidence against him. and i personally know many liberals (i do live in MI) who persistantly question both those aspects of the proceedings against saddam.

 

sorry you dont think this is worth bringing up. i do.