The proceedings being taken to impose victors? justice on the Iraqi
people, including their former President Saddam Hussein, are nothing
more than another example of the United States? unfortunate disregard
for international law.
The carefully edited pictures of the trial that are allowed to be
broadcast and printed show few Americans in the Courtroom, but behind
every door and more disturbingly behind almost every action there are
Americans pulling the strings.
Why is this so disturbing? Shouldn't Americans be proud that they are
putting the Iraqi regime that they hate so much on trial? The answer is
unfortunately a resounding no. In fact the trial has become such an
embarrassment to the United States that the American puppeteers are
likely committing war crimes themselves.
Illegal from the Start
The glaring illegalities of the current process begin with illegal
origins. The invasion and occupation of Iraq is widely understood to be
illegal. On 5 March 2003, three of the five members of UN Security
Council and Germany, which was then a non-permanent member,
unambiguously declared that a US-led invasion without further Security
Council authorization would violate international law. On 16 September
2004, UN Secretary-General Kofi Annan reiterated what was by then
obvious to almost every international lawyer, that the invasion and
occupation of Iraq is illegal. In fact, this is a textbook case of
illegal aggression in violation of the prohibition of the use of force
by one country against another found in article 2(4) of the Charter of
the United Nations and under customary international law.
The Nuremberg Tribunal described such illegal aggression as
"essentially an evil thing. Its consequences are not confined to the
belligerent states alone, but affect the whole world. To initiate a war
of aggression, therefore, is not only an international crime; it is the
supreme international crime differing only from other war crimes in
that it contains within itself the accumulated evil of the whole."
It is not the person on trial in Iraq who committed this crime, but
the American President George W. Bush and his allies. Rather than being
brought to justice for their crimes, the Bush administration and it
allies resorted to trying their victims in a manner that insults
longstanding concepts of justice and fair trial ? both a central
Islamic value and an international human right. To the Bush
administration their actions apparently justified or at least
distracted attention away from their own illegal actions.
One of the ends of this illegal act was to capture, detain, try, and
execute the President of Iraq who had dared to stand up to the will of
a powerful country like the United States. The creation of the Iraqi
Special Tribunal (IST), which is sometimes known as the Iraqi Higher
Criminal Court, and the subsequent trials are acts taken to fulfill
this goal.
Under international law, when illegal acts have such consequences, all
states are obliged not to recognize them. This rule, which is adopted
in article 41(2) of the famed International Law Commission?s Draft
Article on State Responsibility, prevents states from benefiting from
their own illegal act.
As if the inherent illegality of the court were not enough, the United
States has constantly taunted the international community by
orchestrating a trial that is as widely criticized as unfair as the
invasion of Iraq is illegal.
Unfair Trial
The violations of unfair trial are too numerous to mention here, but
include almost every provision in article 14 of the International
Covenant on Civil and Political Rights that could be violated at this
juncture of the proceedings.
Among the other striking violations of the human right to a fair trial
are the lack of equality of power between the parties and the lack of
an independent and impartial tribunal.
The inequality of power can be illustrated simply in dollar values.
The United States has spent hundreds of thousands of dollars supporting
the prosecution of the Iraqi President; the defense lawyers are working
as volunteers with hardly enough money to travel to Iraq. The
inequality of power can also be illustrated in minutes, days, weeks,
and months. The prosecution alleges to have been collecting evidence
since at least 1991 ? which, of course, could only be true if it were
the United States government doing the collecting ? and has at least
been doing so since April 2003 when dozens of American lawyers and
Iraqis who had not lived in Iraq for years were shuttled in to build a
case. The defense lawyers, despite requesting visits with their client
since December 2003 when he was detained, have to date not been allowed
the confidential visits that are necessary to begin to prepare a
defense. No visits were allowed with the most senior lawyers until
after the trial had started and at each visit American officials
exercise the authority to read any materials brought into the visiting
room despite the fact that all meetings remain under close audio and
visual surveillance. As if this were not enough, evidence has been
withheld from the defense lawyers. They have been denied access to
investigative hearings; they have been denied prior notice of
witnesses, and they are prevented from even visiting the site of the
alleged crime.
All of these rights of the defendant are part of the right to a fair
trial under both Iraqi law and international law. This law is merely
violated with impunity. The extent of this impunity was evidenced on 24
January of this year when judicial clerk Riza Hasan attempted to return
a more than fifty-page brief that had been submitted to the IST
claiming that ?the judges did not want it.? Perhaps he was explaining
why none of the eight motions which have been before the IST for
months, including motions on illegality of the IST and disqualification
of specific judges, have never received a written reply.
The interference with the independence of the tribunal has permeated
all its aspects. Four out of five judges who started the cases have
been removed, two by publicly announced interference connected to the
United States occupying powers. In September 2005, four prominent
statesmen wrote the UN Secretary-General advising him of the threat to
participants in the trial in Iraq. These warnings were ignored. Several
weeks later two defense lawyers were murdered in a manner suggesting
possible involvement of the authorities in Iraq. More recently a
possible defense witness was killed when his whereabouts were disclosed
to US authorities. Even US President George W. Bush has declared that
the trial is on track and that the Iraqi President will be executed.
Such statements coming from judges of the IST also indicate a clear
lack of impartiality. In a film by Jean-Pierre Krief for Arte France
and KS Visions that was shown in France in 2005, a judge of the
tribunal states that the Iraqi President who was then about to go on
trial before them had ?persecuted the Kurds. He killed them, wiped many
of them out. He also used chemical weapons with the aim of committing
genocide against this race, against this people, to eradicate them as a
nation. He also went after the Shiites due to their religious beliefs.?
Another judge states that the President is ?one of the worst tyrants in
history.? These are not the statements of an impartial judge who in the
inquisitorial system of justice is both the evaluator of law and fact.
In March 2006 the European Court of Human Rights avoided having to
decide if the trial violated international human rights law by claiming
that it had no jurisdiction because the European allies of the United
States were not involved in the trial. The Court did implicitly seem to
agree that it was the United States ? and not Iraq ? who were
responsible for the trial. The UN Working Group on Arbitrary Detention
on 30 November 2005 and the UN Special Rapporteur on the Independence
of Judges and Lawyers in March 2006 explicitly confirmed that the
United States shared responsibility with the Iraqi authorities.
These latter two human rights experts have also condemned the trial as
unfair. In his March 2006 report to the newly created Council on Human
Rights the Special Rapporteur on the independence of judges and
lawyers, Leandro Despouy, stated that after ?analysis and special
concern of the Special Rapporteur since 10 December 2003 when the
Statute of the Iraqi Special Tribunal (IST) was adopted and throughout
its development ? [the Special Rapporteur] express[es] his reservations
regarding the legitimacy of the tribunal, its limited competence in
terms of people and time and the breach of international human rights
principles and standards to which it gives rise.?
What to do About an Unfair Trial before an Illegal Tribunal?
What is the solution for this mess? How can the rule of law be
restored?
Some answer has been given before the whole process started by the
original architect of the special Court, DePaul University professor
Cherif Bassiouni, and more recently by the UN?s expert on fair trials,
Professor Leandro Despouy. Both these formidable experts have indicated
that the trial must be before a truly international court under UN
auspices. Both have pointed to the several examples of such courts that
exist today.
Although the UN may not come with clean hands into the fray, they are
perhaps the only way out for the United States. The solutions proffered
and orchestrated by the United States to date merely emulate and
emphasize already serious violations of international law. The path
currently being followed is truly one where a cast of the worst
criminals are running the legal system. Is this really how American
democracy views the rule of law?
Perhaps a more important question is when will the international
community act?
Although the opinions expressed above indicate a widespread perception
that the trial is illegal and unfair, the international community,
particularly the Security Council, has to date refused to take on the
responsibility of ensuring respect for the rule of law.
Despite having acknowledged in UN SC Resolution 1483 that the
Secretary-General?s Special Representative for Iraq is responsible for
?promoting the protection of human rights? in Iraq, little successful
action has been taken. This was confirmed earlier this year when the
outgoing UN human rights chief in Iraqi, John Pace, described the human
rights situation as worse than under the previous regime and
deteriorating daily. Taking a stand on the issue of unfair trial would
be a good place for the UN to start promoting human rights. The
fairness of these proceedings, which are closely followed by Iraqis and
throughout the Arab world, is a crucial test of the international
community?s commitment to the rule of law.
Curtis F.J. Doebbler is an international human rights lawyer and a
member of the defense team for Saddam Hussein.
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