TRIAL PRACTICE
Gathering Evidence Against the Regime of Saddam Hussein

By Anne Tompkins and Gregory Paw

With no formal office space, files, evidence, or game plan, four American lawyers arrived in Iraq in spring 2004. Our mission was to assist the Iraqis in the historic task of investigating and prosecuting crimes committed by Saddam Hussein and his former Iraqi regime leaders. Because our Iraqi partners were not yet organized, we had very little existing administrative structure working in our favor. Moreover, as the war continued to rage, our mobility was seriously limited. This obstacle, more than anything else, changed the face of our well- intentioned plan to travel the country freely to gather evidence and conduct witness interviews accompanied by the Iraqi investigators.

In mid-2004 the Iraqi interim government had established the Iraqi Special Tribunal (IST) to investigate and prosecute these crimes. Our mission would be to assist the IST in these tasks and provide expertise and training to the Iraqis. In fall 2004 an Iraqi investigative judge delivered a list of possible crimes for review by the IST. Although the tribunal list contained events with which we had become familiar during our six months in Iraq, the entry for “the Dujeel Crime” was one we had not before heard. As we and the world soon learned, this crime involved the brutal slaughter of more than 100 Shia villagers.

After locating a wall-sized military map of Iraq, we began searching for the small dot that would represent the village of Dujeel. After hours of tedious searching, a name jumped off the map. We had stumbled upon the tiny Shia village of Ad-Dujayl in the middle of the Sunni Triangle, about 60 miles northwest of Baghdad. We quickly learned that we were at the beginning of a life-altering investigation into a crime against humanity that ultimately would become the center-piece of the tribunal’s work.

We discovered a great resource in the work underway by the international team searching for weapons of mass destruction. Working from a former Iraqi government palace, this group had interviewed high-level Iraqi regime officials and collected mountains of documents from Iraqi government offices. Our operation digested these millions of documents in search of material concerning the cases, and we produced at trial significant records supporting the prosecutions of those in Saddam’s regime.

We negotiated with the international team to join their operation and place lawyers and investigators at their facility. This move proved fruitful, for not only did it greatly expand our knowledge base, but we gained access to potential witnesses by being involved in their operation. Through this effort, we were able to begin interviewing former members of Saddam’s regime.

But to prove crimes on the scale of international humanitarian law, we would need more than a piggyback ride on their investigative work. We needed to find ways to bring proof of Saddam’s crimes from the countryside into a courtroom. Forming creative support partnerships with the U.S. military and local Iraqi leadership would prove critical to this task.

When we faced mountains of documents in Arabic, we created “gisting operations.” We recruited interpreters to give us the gist of documents before we ordered longer, more detailed translations. Ultimately, we created a searchable database of “gisted” documents with English keywords so we could further organize the available documents for our Iraqi counterparts in the IST.

No project, however, required more creative thinking than our work exhuming mass graves. We settled on a location in Hatra, in the desert of northwestern Iraq that had been a killing field for Saddam’s regime. Our goal was to conduct the exhumations and the collection of evidence in a manner that would be “trial ready.” Therefore, every aspect of the process was documented, photographed, and tagged with exhibit markers. These efforts paid off, as evidence and identification cards of the women and children taken from these graves provided a vital evidentiary link back to the Kurdish region from where they came. This evidence gave us the foundation we needed to expand our investigative operations into the Kurdish region and to begin to tell the personal stories of the victims. We learned of a crime wave against the Kurds of the late 1980s that was called “the Anfal.” The main thrust was a major military campaign against civilians in an effort to control the Kurdish population. Iraqi military and intelligence forces swept over the small and remote villages in this region, removed families from their homes, and destroyed the villages.

Telling the stories of these victims, and explaining the Anfal through their stories, was an important goal. Knowing how to link the identification cards back to the tiny mountain villages, however, proved a significant task that would have been impossible without local knowledge and cooperation. With the identification cards exhumed from the Hatra grave in hand, our interpreter visited local census offices and began piecing together family histories, as well as cross- referencing the cards against lists of known Anfal victims. After a time, we placed a team of lawyers and investigators in the Kurdish region to interview survivors and piece together proof of the Anfal killings.

Good fortune led us to an amazing find in the Ad-Dujayl case. After locating Ad-Dujayl on the map, we learned that in 1982 a small group of local rebels tried to kill Saddam as he passed through town. A shaken Saddam retaliated against the entire town. We initially had few leads in investigating these events. Then we received a huge break when a military officer brought us in contact with an experienced prosecutor from the Manhattan district attorney’s office, Vincent Heintz, who happened to be a captain in a U.S. Army reserve unit stationed near Ad-Dujayl. While meeting townspeople, Heintz learned of Saddam’s crimes. He took witness statements and began developing a case. He had forged great alliances among the local people and was able to bring together leaders and people from many walks of life to meet with us and share their information.

Another critical alliance involved our work with the Iraqi judges and investigators who would take the cases to trial against Saddam. We needed to establish a strong and trusting working relationship with the Iraqi staff to be effective in our work. We did this the same way that work relations are established anywhere: with personal and patient contact.

We left Iraq in spring 2005, before trials against Saddam began, and handed our work off to a new team of Justice Department lawyers. Our efforts in the Ad-Dujayl case became a centerpiece of Saddam’s first trial, resulting in his conviction for crimes against humanity.

As with so many other aspects of the war effort, the end results were mixed. Although the tribunal shed light upon certain atrocities, the manner in which sentences were meted out caused further division rather than healing. Conducting the trial in Iraq had been a central goal of the tribunal. In the end, however, conducting trials in an ongoing war zone introduced filters upon the proceedings that limited the overall achievement of accountability in a manner that also allowed former adversaries to live with each other rather than continuing to destroy one another.

The goal had been a tribunal whose work brought people together, not one that made it harder for those of differing backgrounds to reconcile. History will judge whether that goal was met.

For More Information About the Section of Litigation

- This article is an abridged and edited version of one that originally appeared on page 6 of Litigation, Spring 2008 (34:3).

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- Books and Other Recent Publications: The Litigation Manual: Jury Trials; Model Jury Instructions: Copyright, Trademark and Trade Dress Litigation; The Attorney-Client Privilege and the Work-Product Doctrine, 5th ed.; Internal Corporate Investigations, 3d ed.; Law Makers, Law Breakers and Uncommon Trials; Raise the Bar: Real World Solutions for a Troubled Profession; The Curmudgeon’s Guide to Practicing Law; The Litigation Manual: First Supplement; The Litigation Manual: Depositions; Model Jury Instructions: Employment Litigation, 2d ed.; The Trial Lawyer: What It Takes to Win, DVD/book package; Motion Practice and Persuasion; McElhaney’s Trial Notebook, 4th ed .

Anne Tompkins practices with Alston & Bird in Charlotte, North Carolina; she may be reached at anne.tompkins@alston.com. Gregory Paw is director of the New Jersey Division of Criminal Justice in Trenton; he may be reached at pawg@njdcj.org.

Copyright 2009

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