by Michael P. Scharf and Gregory S. McNeal. Durham, North Carolina: Carolina Academic Press, 2006. 438pp. Paper. $29.95. ISBN: 9781594603044.
Reviewed by Marvin Zalman, Department of Criminal Justice, Wayne State University. Email: aa1887 [at] wayne.edu.
The practice of international tribunals to try war crimes and crimes against humanity languished for decades after the post-World War II tribunals completed their work. Tragically, large scale atrocities continued to occur. In reaction, the international community has recently established international or internationalized domestic courts to try violators in, for example, the former Yugoslavia, Rwanda, and Sierra Leone. These tribunals, however imperfectly, have been significant markers in advancing the rule of law and have been accompanied by significant scholarship.
Although SADDAM ON TRIAL, by Michael P. Scharf and Gregory S. McNeal, discusses a plethora of points pertaining to the trial of Saddam Hussein, the convicted and executed ex-dictator of Iraq, its larger question is whether the trial has contributed to the rule of law project; or, in grandiose terms, “Is the Saddam Hussein Trial One of the Most Important Court Cases of All Times?” (Michael Scharf: qualified yes; Leila Sadat: not really, pp.229-232). The book examines the creation of the Iraqi High Tribunal (IHT) and its first trial: that of Saddam and his co-defendants for killing 248 Iraqi civilians following a failed assassination attempt in 1982 in the Shiite town of Dujail. The IHT decided not to conduct a single comprehensive Nuremberg-like trial but “a dozen mini-trials” covering various atrocities committed by Saddam and his regime, like the chemical-gas poisoning of thousands of Kurds in Halabja in 1988 (pp.58-59). The second IHT trial, the so-called Anfal trial, recently concluded with a guilty verdict and death sentence against Saddam’s cousin, Ali Hassan al-Majid, known as Chemical Ali. This case detailed a campaign of attack against hundreds of Iraqi Kurdish villages accompanied by torture and starvation that killed as many as 180,000 civilians (Burns 2007).
SADDAM ON TRIAL, an interesting, unusual, and highly specialized, book is an emblematic postmodern product, as it has been culled from entries of the Grotian Moment blog devoted to Saddam’s trial that is maintained by Scharf and McNeal: (available at http://www.law.case.edu/saddamtrial/index.asp ). In the preface they tell us that the blog logged more than 100,000 visits (readers of the book are thankfully spared responses to the blog essays). The present book could also be subtitled “a sourcebook on the trial of Saddam Hussein.” Given its provenance and unusual structure (a third of the book consists of appendices), it helps to describe the book’s contents. It consists mainly of 85 signed articles of varying length (from one to thirty-three pages) by the authors and 15 experts. It is divided into four parts: Part I. Background (4 essays); Part II. The [*551] Iraqi High Tribunal; Part III. Expert Analysis of Discrete Issues, Section 1. Establishment and Approach of the Tribunal (16 essays); Section 2. Conduct and Administration of the Trial (31 essays); Section 3. Issues of Proof (18 essays); Section 4. Issues of Impact (4 essays); Section 5. The Next Trials (5 essays); Part IV. Looking Forward: The Trial in a Broader Context (7 essays). Part II includes a useful time line of the Dujail trial and the charges against Saddam. The sprawling and episodic nature of the book makes its helpful index a blessed inclusion.
The Appendices (136 pages) include a glossary of key legal terms, the indictments against Saddam’s seven co-defendants, an English translation of the 2005 Iraqi High Tribunal (IHT) statute (typographical errors evidence haste in assembling the book), an English translation of the IHT Rules of Procedure and Evidence, a Summary of 1971 Iraqi Criminal Procedure Law, and biographies of the authors and the 15 expert contributors.
Given that the essays were written in media res by experts with impeccable credentials, they will be valuable to a future author who writes a comprehensive book on Saddam’s trial or on the entire work of the IHT, which continues. Many of the contributors helped to train IHT judges and prosecutors. The episodic format of the book however, which includes a number of mini debates (e.g., William Schabas, Michael Newton and Michael Scharf spar over whether Saddam should be exposed to the death penalty (pp.102-107), a now moot point) is too extended and perhaps too exasperating a form for the nonspecialist reader. Six essays on “Who Won the Battle of Wills in the December Proceedings . . .?” (pp.126-133), for example, really is inside baseball. Still, for readers who wish to closely follow all the essays, they should have included their dates of appearance as many were written in reaction to specific trial and external events.
Essays by M. Cherif Bassiouni, the dean of international criminal law scholarship, at the beginning and end of the book (pp.9-15, 245-252) shed light on questions about the IHT’s structure, legal context, and legitimacy. The options for a trial of a vanquished dictator and his bloody regime include an international tribunal established under Security Council auspices, a mixed international-national tribunal, and using an Iraqi court with some international support. Another approach, favored by Bassiouni, is the truth and reconciliation commission model. (In this regard, Mark Drumble asked “to what extent does the artificial reductionism of the criminal trial shield much deeper inquiries?” p.213). Purely domestic tribunals have also been used – e.g., Adolf Eichmann tried by Israel; Klaus Barbie tried by France (see Leila Sadat, p.231). Bassiouni preferred using Iraqi courts as a means of advancing international criminal justice and the rule of law. Despite his praise for the courage and commitment of the Iraqi prosecutors and investigating and trial judges, Bassiouni felt that the shortcomings of the proceedings and the heavy and politicized influence of the United States in forming the IHT failed to advance institutionalized justice in Iraq. [*552]
The book examines many topics related to the creation of the IHT and the conduct of Saddam’s trial. As a non-specialist in international law, I will address only one issue, but one that ought to be of interest to all law and courts scholars. I come to this review having taught judicial process and court administration to political science and criminal justice students, honors seminars on political trials, and with a disciplinary grounding in substantive criminal law, constitutional criminal procedure, and criminal justice policy. Potential readers with similar backgrounds would find much food for thought in the essays.
For law and courts scholars, the trial raises significant issues about the meaning of criminal law in a time of civil war and the virtual fragmentation of a nation-state. Criminal law is a central pillar of state authority and has been bound up with state formation in western nations. Is criminal law meaningful or even possible without a state context, or does it shade into lynch law, partisan justice, or sheer terror? Most of the contributors’ essays properly delve into various trial details in order to determine whether procedures and events met standards of due process and whether they can provide useful precedents to future hybrid internationalized domestic tribunals. But looming over these detailed explorations is the big question of what this means as Iraq experiences a sectional and confessional civil war set off by America’s ill-conceived and disastrously conducted invasion, occupation, and continued presence in that country.
These issues were raised in a few of the essays, but not worked out in any systematic way. Mark Drumble notes that
The choice to prosecute Saddam and to see his trial as promoting justice and establishing a historical record was made at a time of ex ante optimism about the ability to maintain security in Iraq. Although peace and justice aren’t viewed as incommensurable by international lawyers such as ourselves, what might the purpose be of proceeding with the Saddam trial amid such great instability (and it is unclear to me whether relocating internationally would help)? (p.210)
David Crane agrees in a lesson learned: “peace first—then justice.” He makes the obvious point that the “significance and public impact of the trial is lessened as the society in which the victims and their families struggle daily for a sense of normalcy” (p.239).
David Scheffer argues, to the contrary, that as civil war “consumes Iraq” the trial ought to be moved to a secure, international location, noting that this would require “a far more energetic diplomatic effort by the United States and Iraqi authorities,” (pp.215-217) a most farfetched hope at this point. Michael Scharf (pp.210-212) and Michael Newton (p.243) put this worry aside by positing that the real value will be in the long term future when an idealized western-style rule of law sensibility will grip the hearts and minds of Iraqi elites (assuming there is an Iraq as we know it in the long term).
Without diminishing the noble aspirations that underlie the prosecution [*553] of those responsible for major atrocities, we need to hold open the possibility of a failed trial. Bassiouni alludes to such negative precedents as the miscarriage of justice in the trial and execution of General Yamashita (1945-1946) and the failed post-World War I Leipzig trials (1923). Perhaps more relevant is the point that, without a culture that remembers trials as significant cultural milestones, they mean nothing. The Tokyo War Crimes Trials (International Military Tribunal for the Far East, 1945-1948) have apparently vanished from consciousness in East Asia and plays no part in the lingering debates from that era (Brackman 1987).
The work of the IHT may indeed provide precedents for future international tribunals, as the Milosevic debacle convinced the IHT to embark on a series of trials. The community of international law scholars and jurists will move on, but there is at present raging violence in Iraq and the promise of worse when the American military effort bows to political and logistic realities and leaves the field. The de facto cantonization of the Kurds is occurring, the influence of Iran is growing, and the possible emergence of an Islamist state cannot be discounted. In light of all this, what will the trial mean? It may bring some satisfaction that justice has been achieved to individuals who can focus on such things, assuming that their lives have been untouched by the wave of killings (perhaps 70,000 by recent counts) that American troops cannot control or by the close to 2 million who have fled the country. The irreconcilable factions are more likely to interpret the trials as partisans than as patriots of a unified nation. Indeed, the second IHT (Anfal) trial has concluded, and the verdict “came at a time when Iraqi public interest in the trials has flagged. Only a handful of Iraqi reporters attended the session . . . and none form the country’s Kurdish newspapers. There was only a handful of Western reporters, too” (Burns 2007).
A perplexing aspect of the book it its closure before the verdicts and sentences in the Dujail trial were announced (on Dec. 5, 2006) and before Saddam’s death sentence was executed (on December 30, 2006). The book’s time line ends with the inaccurate statement that the judges announced their verdict on October 16, 2006. The not-unexpected verdict and sentence but the unexpectedly swift execution, and the mixed and politicized reactions to them in Iraq, the Arab world, and the United States, certainly cast a shadow on the meaning of the trial. It may be that the book was facing publication deadlines (according to the blog, it comes with a student guide), or was deemed by the authors to be sufficiently lengthy, or was meant to capture the thinking of the authors and contributors at the close of the trial itself. Like a post-modern novel, the book allows readers to create their own assessment and conclusion. Yet, knowing how the trial ended will leave readers wondering. To find out what an author thought, readers will have to turn to the Grotian Moment blog (hint: search for Dujail Issue #46: Saddam’s Execution).
The expertise of the authors and the contributors (all specialists in the rarified world of international criminal tribunals [*554] and the broader fields of international human rights) ensured that the essays are uniformly well written, focused on important topics, and interesting. The book’s format, however, precludes its usefulness as an upper division or even a graduate or law school text in courses on international human rights. It could be a useful supplement in courses on the international trials and the prosecution of state actors. Specialists on international criminal trials would want to have the text on their shelves as a reference work.
Brackman, Arnold C. 1987. THE OTHER NUREMBERG: THE UNTOLD STORY OF THE TOKYO WAR CRIMES TRIALS. New York: William Morrow.
Burns, John F. 2007. “Hussein’s Cousin Sentenced to Die for Kurd Attacks.” NEW YORK TIMES. June 25.
© Copyright 2007 by the author, Marvin Zalman.