Judge Ra'id Al-Saedi, Chief Investigative Judge of Iraq High Tribunal

Today I attended a lectured delivered by Judge Ra'id Al-Saedi, Chief Investigative Judge of the Iraqi High Tribunal that tried and convicted Saddam Hussein.

He spoke of the technical and legal challenges of forming the Iraqi High Tribunal and building a case of genocide against Saddam Hussein and his partners.

The Tribunal used the existing Iraqi Penal Law 111 (1969) and the Iraqi Criminal Law 203 (1971). They also drew upon the experiences of Rwanda, Bosnia, and Sierra Leone, and made use of experts that had participated in the war crimes tribunals involving those nations. However, one distinction is that those tribunals were created by an action from the UN Security Council. Given French, Russian, and Chinese opposition to the 2003 invasion, the case fell to domestic courts.

Judge Al-Saedi discussed four challenges in building the case:
1. Establishing the numbers of victims
2. Processing and identifying relevant documents
3. Excavating victims from mass graves
4. Finding witnesses to testify

Victims

He stated approximately 100,000 Kurdish civilians were killed in 1988, and 200,000 Shi'a civilians in 1991 in the uprising following Desert Storm.

Logistics were a nightmare. Initially, the IHT started with one office in Baghdad, at which they received hundreds of survivors and witnesses each day. They decided to create three additional offices, two in the north, and one in the south.

Processing Documents

Some of the documents actually came from the United States. The US acquired some of these documents during Desert Storm, and after 1991 received a stream of files from Kurds in northern Iraq.

The IHT began with 10 tons of documents. Al-Saedi hired 100 individuals and divided them into four groups. The first group separated the documents between legal and non-legal, and kept the former. The second group reviewed the legal documents and retained only the important files. The third group separated evidence from non-evidence, and the fourth group split the evidence across the 14 cases that were in preparation.

With 24 investigative judges and 100 paralegals, the tribunal scanned and examined over 6 million documents using an electronic database.

Mass Graves

While the documents were being processed, another group examined the mass graves. According to him, there were about 250 mass grave sites identified in Iraq. Each site consisted of 10 to 50 graves, and each grave contained about 80-100 victims. Taking these numbers as is, this implies anywhere from 200,000 to 1.25 million victims. Given his earlier comments, the lower of the two seems more reasonable.

The cost to excavate and examine a mass grave ranged from a minimum of $5-10 million to a maximum of $25-50 million. Some of the funding came from the Iraqi government, while many of the logistics were provided by the US and British armed forces. Some human rights organizations also provided assistance. Because of the expense, five graves were chosen for excavation.

These locations were frequently remote, requiring transport by helicopter. Al-Saedi described the process as building "a city in the desert". The graves were surrounded by a security cordon. Each location required residential facilities and communications - presumably by satellite. He mentioned that two sets of refrigerators were needed - one for food, and one for exhumed bodies. The bodies were flown by helicopter to Baghdad, where experts analyzed the remains. (For security and logistical reasons, the experts remained in Baghdad and were not located at the mass graves.)

Witnesses

Witnesses were important, not only for the hearing, but to establish the identity of the victims. If a witness confirmed that a mass grave was created prior to 1990, the victims were likely Kurdish. If it was created after 1990, the victims were likely Shi'a.


In addition to the four technical/legal issues, Judge Al-Saedi mentioned two human complications: the defendants and the politicians.

Anyone who has seen video of Saddam's ranting during the trial knows that the defendants could be defiant and disruptive. Iraqis watching the proceedings may have been nonplussed by the "rule of law". In the end, the tribunal decided that the best way to deal with defendant characteristics was to permit them to ramble and rant, and to inject questions in the middle of their tirades. In so doing, the defendants made mistakes and incriminated themselves. (I thought this was an ingenious tactic.)

In addition, the judges were under pressure from various politicians looking to push and defend their diverse agendas. Al-Saedi did not have much time to go into this, but merely said that the IHT's chief goals were to send the following messages:

1. No one is above the law, and the law serves the citizens of Iraq.
2. Judges, lawyers, and other legal professionals must bear the burden of responsibility for their country's future.
3. Politicians must accept the rule of law if Iraq is to be a real country.

Al-Saedi answered two questions, and clarified some minor points.

He was staunchly opposed to amnesty for Iraqi leaders who had committed international crimes.

Mr. Al-Saedi spoke English fairly well, though with an accent and frequent pauses. However, there was one point at which it was clear that he did not have to reach for words. A student wearing a skullcap commended his courage and character, and asked him what personal trials he endured during this process.

Mr. Al-Saedi graciously and eloquently thanked the student for his kind words, and said, without pause or qualification, that in order to do the job correctly, he and his peers had to put aside personal problems and concerns. Their obligations to their families was dwarfed by the immense responsibility to build a functioning legal system in Iraq. He said that the trials cost much, in money and in blood, and indeed, there was danger for all involved. But he compared his position to the position of the law student's father - "Your father is tremendously proud of you for being here, studying law at Cornell." In a similar way, he felt that his legacy to his children, and how he best stood for them and the people of Iraq, was to focus on building the legal system.

There is something impressive and moving about a man who works with such conviction to help build a new nation.

The task in Iraq looks more daunting than even that faced by the Founding Fathers. I recall Stephen Biddle's lecture here last summer, and wonder whether fear of genocide - perhaps legitimate - would perpetuate the political deadlock, preclude the efforts to secure the country, and destroy the possibility of the rule of law. It is easy to hope, and easier to be pessimistic. But it is hard, hard to do something tangible and concrete, or at least hard because it may be unfamiliar and risky.

But his lesson, and the lesson of the ghosts of history, is to first and foremost do your duty, with courage and candor and deed. A lesson for us all, though our challenges be minor by comparison.