International Criminal Law Case Study: Saddam Hussein's Trial

This case study examines the trial and execution of Saddam Hussein, focusing on the legal aspects and context surrounding the Iraqi Special Tribunal Court (ISTC) and the International Criminal Court (ICC). It explores the charges against Saddam Hussein, including the Dujail massacre, and analyzes the arguments from both the prosecution and defense. The study raises questions about the fairness of the trial, the independence of the ISTC, and the potential violation of international legal standards. It compares the trial's outcome with what might have occurred at the ICC, considering due process, the presumption of innocence, and the role of the US in the proceedings. The case study also considers the political context and the impact of the execution, prompting a critical evaluation of the justice served and the adherence to international legal principles. The case study aims to provide insights into the complexities of international criminal law and the challenges of ensuring fair trials in politically charged situations.

Running Head: SADDAM HUSSEIN CASE STUDY 1
SADDAM HUSSEIN CASE STUDY
Name
Institutional Affiliation

SADDAM HUSSEIN CASE STUDY 2
Introduction
At what point does respect for the judiciary, sovereignty, and jurisdictions of a nation
come in with respect to the manner in which Saddam Hussein was tried and executed? As much
as the US was actively involved in the largest manhunt in human history for Saddam Hussein,
did they have any right to involve themselves with his trial and execution? During his term as
president of Iraq, was Saddam Hussein involved in activities that would warrant his search, arrest
and execution? If he carried out crimes against humanity, which party in the international
community has jurisdiction to put him to trial? Anyone who has interest in the due process
within the international community should be able to ponder upon such questions. Additionally,
did the execution of Saddam Hussein violate stipulations under the ICC.
Did Saddam Hussein receive fair justice for purported crimes that he had committed?
This research will try to answer these questions by exploring activities surrounding Saddam
Hussein’s arrest and execution. The report will focus on the context of Special Tribunal Courts in
Iraq and the ICC. The former is where trial and execution of Saddam took place, while the latter
is where it should have taken place. The difference in results that were obtained and those that
could have been obtained if he were tried at The Hague will be compared so as to ascertain
whether Saddam Hussein received fair justice (Peterson, 2007).
Facts of the case
A number of charges were brought against the former president of Iraq, and they include;
Shiite suppression, gassing of Kurds, Dujali massacre, and also suppression of Kurds over the
thirty-seven years that he was in power. He was also charged with hunting and killing religious
leaders in 1974 and lynching anyone who differed in opinion. On the international level, Saddam
was charged with unnecessary invasion of Kuwait. Domestically, hunting and killing
approximately 190,000 Kurds, an event which came to be known as the Dujali Massacre. This
was the most serious allegation that was brought against Saddam (Clark, 2006). Saddam
Hussein was arrested in 2003 once the United States invaded Iraq, and this was motivated by the
desire of the US and allies to capture Saddam for the crimes he had committed. However, after
his capture, his trial couldn’t be undertaken immediately since the fall of his regime went down
with all the judicial institutions that had been established (Falk, 2007).
Court it was Tried In
The US decided to form a coalition with the Iraqi government, which would allow the
formation of a judicial and political apparatus. This would help guide the country back to
sobriety. This led to the creation of the Iraqi Special Tribunal Court (ISTC), which was created
and entirely funded by the US. Iraqi lawyers were trained by US lawyers and Statues to be used
were largely written by the US (Dimitrova & Lee, 2009). Therefore, this raises eyebrows when
questions about the legitimacy of ISTC arise since it was purely an extension of the US legal

SADDAM HUSSEIN CASE STUDY 3
system. Consequently, this allowed the US to have extensive say with regards to how trial in the
ISCT would be conducted against Saddam Hussein.
There are three main reasons why the ISTC was viewed to lack independence and could
be easily influenced by external parties. First, the ISTC was a brainchild of the US (which is a
foreign government) whose objective was to pursue personal objectives. Secondly, the US could
easily influence the persons who could sit on the tribunal, thereby, creating impartiality. Finally,
the judge’s credibility was in question. Some of the judges didn’t have a clear concept of the
laws that apply in ICC (Sissons & Moghalu, 2006). Most of the judges were political activists
who were on a vengeance spree against Saddam’s Bathic regime. Proponents of the court argue
that the use of the old Iraqi Judicial System was impossible since it was inefficient. However,
they failed to comprehend the fact that the old constitution assured independence of the judicial
system from any other arm of government (Human Right Watch, 2006). The Iraqi High Tribunal
Court (HTC) has stipulations that may counter the independence of the courts. Article 4(4) of the
IHTC allows the cabinet to revoke judges from siting on the bench absent of logical reason. On
the other hand, article 33 of IHTC disallows judges associated with the Baath party to hold a sit
in court. This is a loophole that allows judges with anger against the Baath to vent out their
vengeance against the latter in court proceedings. These factors made the IHTC to become weak,
fall short of International Standards, and definitely become impartial (Moghalu, 2006).
Legal aspects
The Dujali massacre is a highly complicated matter that challenge the understanding of a
layman. The incidence occurred as an aftermath of the assassination attempt on Saddam Hussein
and Baath leaders who had gone to Dujali to try and convince Iraqis to stand against the Iran’s
efforts to undermine the former. The assassination attempt was seen as an act of treason by
Saddam Hussein, and as the government, he had the constitutional mandate to investigate the
parties involved in the attempt like any other federal authority (Noxell, 2012).
Dujali was a city that Iran intensively used to recruit Iraqis and change their ideology
against Saddam Hussein. In any case, Saddam was doing the right action in the efforts to try and
find the assassinators and ensure that justice is availed. It is unarguable that tons of people died
in the city of Dujali. However, it goes against logical reasoning to simply implicate Saddam on
the massacre specifically due to the following reasons. First of all, the massacre in Dujali may
not have been orchestrated by Saddam as a way of cleansing the Dujali community. Rather, there
is a huge possibility that Iran was actively involved in the assassination attempt. Iran may also
have taken part in the civil conflict that arose in an effort to ensure that Saddam’s human rights
image is tarnished in the eyes of the international community (Lagrou, 2013).
Arguments from both the parties
The prosecutors who were involved in Saddam’s case never conducted investigations to
try and ascertain the matter, and in case they did, the information was never made available for

SADDAM HUSSEIN CASE STUDY 4
scrutiny. Hence there is a possibility that evidence might have been altered in order to suit the
prosecution. This made it hard to ascertain if Saddam’s government was solely responsible for
the killings or if they had been carried in part by the Iranians (Albadry, 2014). Secondly, some
people argue that the Massacre in Dujali was as a result of armed conflict and the assassination
attempt on Saddam was just a way of linking the anticipated massacre on a single individual.
Supporters of the case could argue that the hatred towards Saddam from the international
community was merely a creation of his own. Saddam was actively involved in terrorism, and
this made people fear and at the same time hate him. Actually, most people would argue that he
received more than a fair trial considering the number of people he was responsible for killing.
He not only undertook the killings in his own country, but also on other countries that appeared
to stand against terrorism and his regime. Hence, efforts were made to pin down the crimes on
him (Praful, 2007). Armed conflict definitely leads to the death of innocents. If this happened to
be the case, it is possible that Iraq’s government was involved in a war. In this case, prosecutors
tried to ensure as much as possible that irrefutable proof could be offered against such a
proposal. In order to ensure that Saddam did not survive the trial, efforts to prove that Saddam
was entirely responsible for the massacre were totally ignored. Thirdly, no proof was presented
by the courts to show if the massacre was undertaken in a systematic or widespread manner. The
court simply based its argument on the fact that 190,000 people had died in Dujali under
Saddam’s regime Clark, 2006). Information for this case was obtained in a bizarre manner since
the prosecution side obtained incriminating data from the UN, which had conducted interviews
with Dujali people. Such information is unreliable and unusable in any criminal court as outlined
under the statutes of ICC (Montgomery, 2012).
Rather than Dujali people making efforts to negotiate with their leaders, they tried to
assassinate them. When the leaders decide to conduct investigations as directed under the
constitution in matters pertaining to treason, the government ends up being blamed for the deaths
(Der-Hagopian, 2009). The western community tried to exaggerate the matter so as to ensure that
Saddam is hastily executed. In Saddam’s argument, all the actions were done according to the
book, and in the end, even those who were hanged for participating the assassination had
received a fair trial as stipulated under the old judicial system (Sceats & House, 2005). However,
unlike the case of the people whom he had directed that they be hanged, Saddam was denied a
fair trial. This is because the international community, as convinced by the westerners, believed
that Saddam was a murderous monster. Charges against Saddam on the Dujali incidence was
highly politicized and this evidenced by the fact that the ISTC courts denied the defendant the
option of using testimonies of those who had been prosecuted for participating in the
assassination efforts. Doing so would have showed that Saddam Hussein simply acted in a
presidential capacity under the constitution, rather than as an individual who was angered by
those who tried to assassinate him (Scharf, 2006).

SADDAM HUSSEIN CASE STUDY 5
Judgement of the trial
If at all the US really wanted Saddam Hussein to rightfully answer for his crimes against
humanity, efforts shouldn’t have been made to ensure that the ISTC was set up hastily. Rather,
Saddam should have been taken to the ICC which is most suitable for seeking redress on crimes
that were committed on a transnational level (Human Rights Watch 2006). As much as the US
did its best to build a case against Saddam Hussein, the prosecution did not attain the
internationally accepted threshold as stipulated by the ICC which include;1) Assumption of
innocence until the the prosecutor is able to prove the guilt of the accused. 2) Ensuring that the
Accused is fully aware of the charges that are being brought against them as early as possible. 3)
Providing the defendant adequate time to prepare themselves. 4) Following Due process.
The ISTC undertook premature actions and this was motivated by the backers of the
system who in the case is the US and the UK. Extensive investigations should have been
conducted and all types of evidence should have been considered before finally deciding the fate
of Saddam Hussein. Questions such as; was Saddam trying to preserve Iraq’s constitution when
he ordered the search, arrest and execution of traitors? Was never considered. Since the Iraqi
invasion by the US, the UN approximates that about 660,000 women and children were killed
(Jørgensen, 2006). Such facts prove that the involvement of the US in Iraq’s issues matters has
led to the death of many people even that those who perished under the hands of Saddam
Hussein. Therefore, why isn’t the US being implicated for crimes against humanity?
These are elements that should be upheld by any legal system despite the crime that has
been committed by the defendant. Since after the prosecution of Saddam Hussein, tons of
problem arose with regards to the Iraqi High Tribunal Court and ISTC. First of all, numerous
questions still exist with regard to the due process that was followed and reasons that motivated
the creation of the court. The independence of the legal system has badly been tarnished by the
US and Iraqi government that was formed forthwith (Kelly, 2008).
My Personal Analysis of the Criminal Trial
Critics of the due process that was followed in executing Saddam Hussein can never stop
to consider the legal ramifications that would have resulted if Saddam was tried at the ICC. It is
unarguable that the outcome in such a case would have been very different. Firstly, since the trial
would have been undertaken in the presence of an international community, it would have been
conducted very thoroughly, and the death penalty would have not resulted since ICC never
recognizes or recommend a death penalty (Praful, 2007). Probably, the outcome of the case had
already been pre-determined even before it started by the Shiite leaders and the Americans. This
could be a major reason why the US refused to surrender Saddam to the ICC. Saddam had
definitely committed monstrous crimes against his own people that amounted crime against
humanity when he was in power.
The itching questions that history will have to tackle revolve around how Saddam was
executed, the processes that was taken to carry out the execution, and what the execution meant

SADDAM HUSSEIN CASE STUDY 6
to the hegemony of the United States. Questions as to whether the justice that was meted on
Saddam was just, and how different would the results have been if the trial was conducted on an
international platform will forever continue to echo through the minds of historians. Based on the
evidence presented by this article, it is evident that Saddam did not receive the trial that he truly
deserved. Rather, his execution and trial were surrounded by controversy that was created by the
interests of those who wanted him dead, and those who were against his untimely execution.
Most historians consider the trial as being carried out in a mob style and this will forever elicit
dissatisfaction from people who adore actual justice. The trial also puts to question the future of
Iraq’s democracy which is very fragile. If prosecutions will continue to be undertaken in the
same manner, then it will be impossible to verify that fair justice is being passed Iraq.

SADDAM HUSSEIN CASE STUDY 7
References
Albadry, A. S. S. (2014). Challenges to the Iraqi parliament’s functions in the post Saddam
Hussein Regime (Doctoral dissertation, Universiti Utara Malaysia).
Der-Hagopian, K. P. M. (2009). Iraq:-The Way Forward A Political Strategy To Win & End the
War In Iraq.
Dimitrova, D. V., & Lee, K. S. (2009). Framing Saddam's execution in the US press. Journalism
Studies, 10(4), 536-550.
Falk, R. (2007). Show Trial or Necessary Proceeding?. Global Dialogue, 9(3/4), 136.
Human Rights Watch. (2006). Judging dujail: The first trial before the Iraqi high Tribunal.
Retrieved March 2, 2010 from Human Rights Watch, Human Rights Web site:
http://www.anthropos.gr/Data/Resources/iraq1106webwcover.pdf
Jørgensen, N. H. (2006). The Problem of Self-Representation at International Criminal
Tribunals: Striking a Balance between Fairness and Effectiveness. Journal of International
Criminal Justice, 4(1), 64-77.
Kelly, M. J. (2008). Ghosts of Halabja: Saddam Hussein and the Kurdish Genocide: Saddam
Hussein and the Kurdish Genocide. ABC-CLIO.
Lagrou, P. (2013). ‘Historical trials’: getting the past right–or the future?. The scene of the mass
crime: History, film, and international tribunals, 9.
Montgomery, B. (2012). Saddam Hussein's Records of Atrocity: Seizure, Removal, and
Restitution. The American Archivist, 75(2), 326-370.
Moghalu, K. C. (2006). Saddam Hussein's Trial Meets the “Fairness” Test. Ethics &
International Affairs, 20(4), 517-525.
Noxell, A. T. (2012). United States: A Global Criminal.
Peterson, J. (2007). Unpacking show trials: Situating the trial of Saddam Hussein. Harv. Int'l
LJ, 48, 257.
Praful, B. (2007). Saddam hanging boosts case for international criminal court. Retrieved March
3, 2010 from Global Security, Global Policy Forum Web site:
http://www.globalpolicy.org/intljustice/tribunals/iraq/2007/0106iccboost.htm
Sceats, S., & House, C. (2005). The Trial of Saddam Hussein. Chatham House (Royal Institute of
International Affairs).
Scharf, M. P. (2006). Lessons from the Saddam Trial. Case W. Res. J. Int'l L., 39, 1.
Sissons, M., & Moghalu, K. C. (2006). Symposium: The Trial of Saddam Hussein. Ethics &
International Affairs, 20(4).