The Iraqi Special Tribunal must direct a verdict of acquittal and dismiss the Dujail case for failure to prove its charges.
The prosecution has completed its presentation of evidence on the Dujail charges and must be judged on that evidence just as the Chief Prosecutor at Nuremberg asserted that the Nuremberg Tribunal and Prosecutor would be judged on the record there.
The whole prosecution case presented in this first trial before the IST is either a profound misunderstanding of the time, the place, the people, the events and the circumstances addressed, or it is a deliberate misrepresentation of them.
The failure to properly prepare its case and the chaotic manner in which witnesses arid documents were presented by the Prosecutor contributed to the confusion in the courtroom and misunderstanding by the media.
The complete failure of the Prosecutor to provide the defence with exculpatory documents and evidence, repeatedly requested witness statements and specified documents, strongly suggest it knew its case could not withstand the truth.
The failure of the court to decide issues repeatedly presented by the defence, such as those raised concerning its own legality, specific charges that it lacked independence, detailed allegations that Judges were prejudiced and to act on demands for documents and transcripts of the trial testimony need to enable the defence to question witnesses concerning their own testimony and show inconsistencies among witnesses, all as required by law, compounded the chaos, confusion and misunderstanding that permeated the proceedings.
The resulting appearance of concealment of evidence and deliberate frustration of the defence supports the conclusion that misrepresentation and concealment of the facts were deliberate.
Despite all these failures or malfeasances, the controlling facts concerning this minor episode in the tragic eight year war between Iran and Iraq, which took a million lives, are clear from the evidence presented by the Prosecution alone.
The facts require a verdict of acquittal and dismissal of the charges.
The controlling facts follow:
1- In July of 1982 Iran and Iraq were locked in the second year of a major war that threatened the sovereignty of each nation.
Iran had a population more than three times greater than Iraq, but its large professional military services, which had the most advanced weapons in the region, were severely depleted by desertion and abandonment following the flight of the Shah, the collapse of his government and the success of the Islamic Revolution led by Ayatollah Khomeini.
2- Iran and Iraq shared a long irregular, often rugged border stretching from the Persian Gulf south of Basra and Abadan to the point where their borders meet with Turkey more 600 miles to the north.
Each nation was vulnerable to infiltration and attack over a long often thinly populated expanse.
3- Both Iran and Iraq had large segments of their population whose 1oyalty in the war was uncertain.
Hundreds of thousands of Arabs lived in Iran primarily in the area across the Shaat-al-Arab from Iraq.
Iranian Kurds from northern Iran opposed to the government of Iran would flee from Iran into northern Iraq for safety.
These conditions still exist.
Iran is alleged to have fired mortars into Iraq in late April and early May 2006 against Iranian Kurds it claimed were attacking it from Iraq.
Turkey sent division strength armoured forces into northern Iraq in the mid 1990s destroying villages and killing Kurds.
Turkey is said to have massed 200,000 troops on the border with Iraq in late April 2006 threatening to invade and attack Kurdish fighters.
Turkey claims Kurds from Turkey take refuge in Iraq and ferment rebellion in Turkey where repression of Kurds is intense.
For decades the many Shias who live in Iraq and in Iran who have relatives and ties to communities and organizations in both countries have crossed the border between Iran and Iraq frequently.
Tens of thousands of Iranian Shies have entered Iraq on annual, pilgrimages to Najaf, Karbala, Baghdad, Samarra and other holy sites before and after the Iran-Iraq war which ended in 1988.
Ayatollah Khomeini lived in exile in Iraq from 1964 to 1978. Many Shias in Iraq identified strongly with the revo1uton he was leading in Iran, in part through the distribution of thousands of tape cassettes recorded and available in Iraq.
The Dawa Party, a political organization formed by Shia in Iran opposed the government of Sadden Hussein. Members of the Dawa Party in Iraq were considered a threat to its government.
4- Dujail is close to both the Iranian border and Baghdad. Its population is predominately Shia. It was a centre of the Dawa Party in Iraq in 1982 in a strategically dangerous location.
5- In July 1982 an assassination attempt was made on the life of President Saddam Hussein in Dujail. The automobile in which the President was riding was hit by gunfire from a group of assailants concealed in date orchards adjacent to the highway, the main north-south road linking Baghdad, Samarra, Tikrit and Mosul.
A fire-fight followed.
Helicopters and ground troops were brought to the scene and attacked hostile forces hiding in the orchards and nearby locations. Men were seen fleeing towards Iran.
Sporadic fighting and the search for assailants and their supporters continued for several days.
6- To secure Dujail and the surrounding area and to protect the nation, persons suspected of participating in or supporting the assault on the President and the violence that followed were arrested. Many more people were interrogated.
Families of persons believed to have participated, provided shelter or other support or who were believed to be disloyal and a threat to Iraq were identified and relocated. Some were sent to the Abu Graib prison outside Baghdad which was close and available. They were held there pending further investigation, or while decisions on longer term relocations were made.
The entire families were removed from Dujail. Families were kept together so they could care for each other and their own children and elders. They were relocated to prevent them from aiding hostile elements and to prevent use of their homes to provide refuge and support to enemies of Iraq.
With no provocation and posing no significant threat, tens of thousands of Japanese, merely because they were Japanese, were relocated from cities in the Pacific coast states of the US to remote desert camps in 1942 and confined there during the second world war. Their property was confiscated. Conditions were harsh.
7- Orders to destroy the orchards and farmlands that could provide cover and protection for Iranian or disloyal Iraqi forces along the major north-south highway through Dujail were carried out without discrimination, as a security measure.
Compensation was made to persons whose properly was destroyed. The orchards of two of the defendants in the Dujail case who lived there were destroyed and they were compensated.
8- The investigations of the assassination attempt, the supporting actions, and the ensuing violence continued.
Prosecutions were initiated by the late spring of 1984 nearly two years after the acts occurred. During the investigation of the major offenders, 148 males had confessed to participation, or providing support in the assassination attempt and related hostile acts in the Dujail area in July 1982.
9- The investigative records in the 148 cases with the confessions were presented to the Revolutionary Court. It found the confessions and investigative records supported the findings of guilt.
There were no trials because the defendants admitted guilt.
The President the Revolutionary Court before and during the trial repeatedly requested the records of the Revolutionary Court to prove it had acted professionally and in accordance with law. They were never provided. It is clear that these were confessions in the cases which are unchallenged in the record.
10- The offense charged was treason - taking up arms against ones own country in time of war and supporting its violent overthrow. The death penalty was mandatory. The Court had no discretion under the law.
Death warrants were entered by the Revolutionary Court in mid-1984, two years after the attempted assassination. There was no rush to judgment.
11- A review of the sentences was conducted by a prominent committee of Iraqi judges. A year later, it affirmed the death sentences. President Saddam Hussein, as required by Iraqi law, reviewed and approved the orders of execution.
It is common for the law to require the highest official of a State to approve and sign death warrants.
George Bush signed 152 such warrants as Governor of Texas. His reviews took about 30 minutes for each case. He never granted clemency, or a pardon.
Women, minors, retarded people and aliens in violation of the Vienna Convention on Diplomatic Relations, were executed by his order.
12- President Saddam Hussein ordered the initial investigation of the assassination attempt. He was the intended victim.
An investigation was essential for the national security and would have been made without his order.
In a video tape made in Dujail shortly after the assassination attempt, President Saddam Hussein, appearing calm and talking by the highway with townspeople is heard to refer to supporters of Khomeini.
He testified at the trial and it was not disputed that the first announcement of the assassination attempt on his life came from Tehran.
He received an oral report concerning the clearing of the orchards and commented only, "fine", if the recording introduced in evidence on 15 April 2006 is authentic.
It was nearly three years later before he was presented the 148 death warrants for approval.
There is no evidence of his intervention in the investigation, or any interference in the judicial proceedings.
The only rational explanation for the passage of time is that the proceedings were regular without any pressure for expedited action.
In time of war, the risk of summary executions for their deterrent effect is high.
No other evidence to support the charges against President Saddam Hussein, or of merely wrongful conduct by him, was presented by the prosecution.
The defendants are entitled to directed verdicts of acquittal and dismissal of the charges.