April 24, 2006
JURIST Special Guest Columnist Curtis Doebbler, an American member of Saddam Hussein's legal defense team and a professor of law at An-Najah National University on the Palestinian West Bank, says that Hussein's trial is unfair and orchestrated by the United States, and that the rule of law has been irreparably damaged as a result...
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.
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.