January 20, 2005
Although continued attempts are being made to establish access to the President of Iraq who has been held without access to a lawyer, only one meeting has been arranged more than one year after the detention began. This meeting took place with one of the lawyers of Committee under strict monitoring (both visual and audio) whereby two US military officials were present at all times. This meeting was not under conditions that meet the minimum standards for access to legal counsel provided by international law (e.g. in article 14 of the ICCPR). Neither has this meeting been followed up with additional meetings. It is estimated that counsel need at least several hours of daily contact with their client to be able to consult with him and to
facilitate the preparation of his defense. Unless such access is immediately provided all charges against the defendant should be dropped because of the serious violations of his human rights.
Furthermore, legal counsel’s inability to have access to evidence or formal charges also contributes to the irreparable violation of defendant’s rights. For more than one year, and despite statements by United States and Iraqi government officials that huge amounts of evidence exist, no access to any of this evidence has been granted to defense counsel.
Finally, legal counsel for the President continue to dispute the legitimacy of the Iraqi Special Tribunal for the following reasons:
1. The tribunal is the result of an illegal invasion of Iraq which unequivocally violated international law, namely article 2(4) of the Charter of the United Nations. Attempts to justify this use of force as somehow justified by Iraq’s reaction to UN Security Council resolutions are inconsistent with statements of the majority of both the permanent members of the UNSC and the total membership of this body and are devoid of any legal basis. To satisfy basic principles of justice any court concerned with trials in Iraq that have resulted from the United States’ illegal use of force must be able and willing to try American’s who have committed crimes against peace, including American President George W. Bush.
2. The tribunal is illegal because it is constituted outside the ordinary Iraqi judicial and as the result of steps by the United States as the occupying power in Iraq to interfere with the existing judicial power in Iraq in a manner that renders it liable to violate international human rights and humanitarian law. An occupying power is forbidden from destroying the judicial of an occupied territory and replacing it with a judicial with allegiance to itself that will not prosecute its own soldiers who have violated international law. Nevertheless, the United States did just this in vetting all Iraqi judges for their political opinions and affiliations and removing
those judges who disagreed with the occupiers’ political opinion. This action contravenes general international law that provides that an occupation is not sovereignty and therefore prohibits the occupier from changing the institutions of government when the changes contribute to the violation of international law.
3. The extraordinary nature of the Iraqi Special Tribunal is evidenced by the fact that it would have been illegal even under the Iraqi Administrative Law of 8 March 2004, except for the special dispensation which is given in that law. Despite the dispensation, however, the Special Tribunal does not meet the minimum standards of international law required for a fair trial and is thus illegitimate.
4. The Iraqi Special Tribunal does not meet the requirement of being a competent, independent, and impartial tribunal. It is not competent because it has been established by an occupying power in violation of international law as an attempt to usurp the sovereignty of the Iraqi people. It is not independent because it his been established by the United States as the occupying power and not a sovereign Iraqi government and because it lacks the authority and will to trial United States citizens who have violated international law by illegally invading Iraq. It is not impartial because the judges remain anonymous and "faceless judges" have been held to be prima facie violation of the requirement of impartiality.
5. The Iraqi Special Tribunal also violates international law because it denies defendant’s basic fair trial and due process rights. Defendants have not been able to meet their lawyers in any meaningful way. Evidence of torture and mistreatment of defendants has not been investigated. Defendants have been denied facilities to prepare their defense. Defendants have not been charged. Defendants have been denied access to any of the alleged evidence against them. All of these failures constitute violations of defendants’ rights.
Only a tribunal created by international mandate and with truly impartial judges sitting can try a head of state who has been captured pursuant to an illegal invasion of his country. The Iraqi Special Tribunal is not such a tribunal and constitutes a serious violation of international law.
At the end of December 2004, Mr. Ramsey Clark formally joined the defense team efforts. He will be responsible for legal action taken in the United States and contacts with the press in the United States. He will also advise the legal team being assembled in Jordan under the auspices of ISNAD.
On Saturday, 22 January 2005, at 7 p.m. EST, C-SPAN will carry a debate between Mr. Michael Scharf and Dr. Curtis Doebbler about the legitimacy of the trial of the Iraqi President in Iraq.
N.B. – This report represent the personal view of the author and is without prejudice or connection to any matter that may be privileged between a lawyer and his client. Nothing in this report should be viewed as a comment on the defense case.
Dr. Curtis F.J. Doebbler
3003 Van Ness Street, NW, W623
Washington, D.C. 20008