The Public Prosecutor in the High Iraqi Court et al. v. Saddam Hussein Al Majeed et al.

Court	Iraqi High Tribunal (Appeals Commission), Iraq
Case number	29/c/2006
Decision title	Opinion
Decision date	26 December 2006
Parties	Public Prosecutor Saddam Hussein Majid Barazan Ibrahim Hassan Taha Yassin Ramadan alias Tah al-Jazrawi Awwad Hamad al-Bandar al-Saadoun Abdullah Kadhim Ruwayid alias Mizher Abdullah Kadhim Ruwayid al-Mashaikh Ali Dayeh Ali al-Subaidi
Categories	Crimes against humanity
Keywords	children, detention, forcible transfer of population, Murder, persecution, torture
Links	Opinion

Summary

In July 1982, a convoy carrying the President of Iraq, Saddam Hussein, was fired upon by unknown individuals as it was visiting the town of Al Dujail. In response to what the President perceived as an assassination attempt but which did not injure anyone, a systematic attack was launched against the residents of Al Dujail as they were fired upon from aircraft and their property was destroyed. A Revolutionary Court sentenced 148 residents to death without trial for their alleged involvement in the assassination attempt. Of those that were hanged, the Tribunal identified a number of children. Countless others died in detention, as a result of torture at the hand of the Investigation Services, or from malnutrition, lack of access to medical care and poor hygienic conditions.

At first instance, the Iraqi High Tribunal convicted seven of the eight defendants charged, including Saddam Hussein who was sentenced to death by hanging along with his brother, Barazan Ibrahim, the head of the Intelligence Services. On appeal, the Appeals Commission of the High Tribunal upheld the convictions and sentences and found cause to increase the sentence of Taha Yassin Ramadan, Deputy Prime Minister and General Commander of the Popular Army, to death. Since the judgement, the Iraqi High Tribunal has come under criticism for the alleged unfairness of its proceedings owing, partly, to the continued interference of the Iraqi government in the trial.

Procedural history

On 31 July 2005, the defendants, Saddam Hussein Majid, Barazan Ibrahim Hassan, Taha Yassin Ramadan, Awwad Hamad al-Bandar, Mizher Abdullah Kadhim Ruwayid, Abdullah Kadhim Ruwayid, Ali Dayeh Ali, and Muhammad Azzawi Ali al-Marsumi were indicted on 10 charges of crimes against humanity: wilful killing, extermination, enslavement, displacement or forcible transfer of the population, imprisonment, torture, sexual violence, persecution, enforced disappearance and other inhumane acts.

By a decision of 5 November 2006, the Iraqi High Tribunal convicted seven of the eight defendants (Muhammad Azzawi Ali was acquitted) for crimes against humanity for their involvement in the attack on the town of Al Dujail and its residents, Both the Public Prosecutor at the tribunal and the convicted parties appealed the decision to the Appeals Commission.

Related developments

Pursuant to the sentence of the Iraqi High Tribunal, Saddam Hussein was executed by hanging on 30 December 2006 (see also S. Raghavan, 'Saddam Hussein is Put to Death', The Washington Post, 30 December 2006).

Taha Yassin Ramadan was executed on 20 March 2007.

Legally relevant facts

On 8 July 1982, the president’s convoy was travelling through the town of Al Dujail when it was fired upon from a position behind a tree in one of the town’s orchards. As a result of the incident, the town was placed under the control of a Special Republican Guard under the authority of the defendant, Barazan Ibrahim Hassan, the brother of then President Saddam Hussein, another of the defendants in the present case (pp. 8-9).

The town was encircled by members of the army, special security forces, intelligence groups and popular army forces. Shots were fired from warplanes and helicopters at the orchards and some of the interior streets of the town.

Although no-one was injured in the attack upon the President’s convoy, the President nonetheless commissioned Barazan Ibrahim to discipline the residents of Al Dujail. As a result of this operation against Al Dujail, some 149 people were killed and property was destroyed, including homes, furniture, cars, water pumps, as well as the aqueducts that drew water from the Tigris and irrigated the orchards (p. 8, Trial Verdict).

148 Al Dujail residents were sentenced to death in sham trials before the Revolutionary Court in 1984, including children. The defendant Awwad al-Bandar served as the Court’s President (pp. 62-63).

Many more were imprisoned at the Ba’ath party headquarters in Al Dujail, at Abu Ghraib prison, at the Hakimiya jail and the desert detention centre of Lea. Some died of torture administered at those locations (p. 97). Others died as a result of the poor conditions including lack of proper hygiene and food (p. 103).

Core legal questions

Does the crime against humanity of murder require a State policy element?
Is the defendant Saddam Hussein entitled to immunity in respect of the offences with which he is charged owing to his former position as President of the Republic of Iraq and Chairman of the Council?

Specific legal rules and provisions

Article 2 of Penal Code No. 11
Articles 1, 11 to 14, and 15(1) and (2) of Supreme Iraqi Criminal Tribunal Law No. 10.

Court's holding and analysis

According to Article 12 of Law No. 10 (2005), crimes against humanity are acts committed on a large scale or in the course of a systematic attack against any group of civilian population. It is therefore clear that where such crimes are committed and directed against the civilian population, then it is necessary that that results from the policy of a state that commits its acts through perpetrators either in authority or not (pp. 7-8).

Immunity is a practical immunity that is limited to the period of time during which the individual in question holds that office; it does not continue beyond that time. Immunity is not intended to serve the interests of the individual but to ensure the welfare of society.. Therefore, no government has the right to grant immunity from prosecution to its officials for committing crimes against humanity or ethnic massacres. Since Law No. 10 (2005) allows the trial of any person, regardless of official capacity, the immunity claim of Saddam Hussein does not bar the exercise of jurisdiction by the Iraqi high Tribunal (p. 9).

The Court upheld the convictions of the seven appellants and their sentences, with the exception of Taha Yassin Ramadan whose sentence was increased to the death penalty (pp. 19-20).