Journal of International Criminal Justice Advance Access originally published online on April 26, 2007
Journal of International Criminal Justice 2007 5(2):264-271; doi:10.1093/jicj/mqm005
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Editorial Comments |
An Intentionally Unfair Trial
* Professor of Law (visiting), An-Najah National University, Nablus Palestine and an international human rights lawyer. Dr Doebbler has been a member of the defence team of Saddam Hussein. [cdoebbler{at}gmail.com].
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Abstract |
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Numerous flaws made the Dujail trial a violation of the internationally protected human right to a fair trial. The United States and the Iraqi authorities conducted an unfair trial knowing that both the Third and Fourth Geneva Convention describe ‘wilfully depriving’ a person ‘of the rights of fair and regular trial’ as a war crime. Even if Saddam Hussein was not to be regarded as a prisoner of war, that is, merely as a civilian, in any case his right to fair trial was protected by international law. According to the author, both the relevant states and the individuals involved in the unfair Dujail trial bear responsibility for breaches of international law.
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1. Introduction |
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The question of whether the trials before the Iraqi Special Tribunal (IST)1 are legal and fair is not a matter of mere academic interest. If the trial of Iraqi President Saddam Hussein2 was unfair, his human rights were violated and his execution was a serious violation of the human right to life and the prohibition of cruel and inhumane punishment.
Perhaps, even more important for the development of respect for international criminal law, if the trial was unfair, it is possible that an international crime has been committed. And if this is the case, there may be not only a moral, but even a legal duty to bring the perpetrators of the crime to justice.
This commentary briefly examines the unfairness of the trial and suggests that the most important lesson is yet to be learned. This lesson, it is suggested, can only be learned when the persons who have orchestrated the unfair Dujail trial are brought to justice for having committed this international crime.
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2. The Unfairness of the Trial |
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The defence lawyers laid out in strenuous detail the numerous flaws that made the Dujail trial a violation of the internationally protected human right to a fair trial.3 The IST's Trial Chamber did not seriously address the allegations that it was illegal, biased, not independent from political interference and unfair. Instead it summarily dismissed these charges, which had been briefed in more than one hundred documented pages, as if they were groundless and malicious allegations. Even when these deficiencies were pointed out in open court by the defence lawyers, the Trial Chamber flippantly dismissed them as irrelevant.
The appeals court dealt with the approximately 130 pages of documented fair trial deficiencies with only the following paragraph in its 21-page opinion handed-down less than 2 months after the Trial Chamber's; decision and just 2 days before the execution of the Iraqi President:
As for the other defences, the defendants were given enough guarantees to have fair trials. Each suspect was informed of the kind of accusations filed against him. He was given ample chance to defend himself and to choose his legal advisors and attorneys in person with the assistance of legal counselors. He was given the chance to interview the defence witnesses. He used his rights to fully defend himself. He was not forced to say what he did not want to say. Then the defence he is using in this regard is rejected too.4
In fact, every independent legal expert that reviewed the trial had found it to be unfair. But this was apparently irrelevant to the Iraqi authorities and their American mentors.
UN Special Rapporteur on the independence of judges and lawyers, Professor Leandro Despouy, warned that the trial was unfair and thus in violation of international law. He did this publicly for more than 2 years before the execution of the Iraqi President and right up to the day before the execution. His calls for stopping the trial and holding a fair one were ignored by the Iraqi and American authorities.
The UN Working Group on Arbitrary Detention issued two legal opinions stating that the trial was unfair. To arrive at its opinions, the Working Group considered hundreds of pages of documents submitted by all the relevant parties over a period of almost 2 years. On 30 November 2005, the Working Group even undertook the unusual step of issuing a Preliminary Opinion advising the US government and the Iraqi authorities how they were violating international law. Almost a year later, after both these parties had ignored the Working Group's Preliminary Opinion, a Final Opinion was issued on 1 September 2006. This was also ignored, in no small part undoubtedly because the United Nations itself refused to take any significant steps to urge the US government and the Iraqi authorities to comply with the opinion. The UN High Commissioner on Human Rights, instead of referring to the Working Group's opinion, said just days before the Iraqi President was executed, and after she had been informed that his execution was imminent, that she needed more time to study the appellate opinion of the Iraqi Special Tribunal which had confirmed the sentences. She did not make even passing reference to the fact that if the trial was unfair, as the Working Group had unambiguously found it to be, an execution would violate the right to life. Ironically, the High Commissioner submitted an amicus curia brief to the same unfair IST arguing that the Dujail trial had been unfair — more than a month after the Iraqi President had been executed. Why did not the UN's most senior human rights expert speak up clearly earlier, as she was repeatedly urged to do?
Ominously, the Special Rapporteur on summary, arbitrary and extrajudicial executions also remained silent after he had been informed that the execution of the Iraqi President was imminent. He was joined by the UN Secretary-General, who made some weak and ambiguous statements, and several governments who lamented the use of the death penalty, but who generally ignored the unfairness of the trial.
Some non-governmental organizations such as Human Rights Watch, Amnesty International, the International Action Center and Transitional Justice did speak out some weeks before the execution. The most comprehensive statement was made by Human Rights Watch in a 97-page report they released in November 2006 which concluded that the IST's conduct
... reflects a basic lack of understanding of fundamental fair trial principles, and how to uphold them in the conduct of a relatively complex trial. The result is a trial that did not meet key fair trial standards. Under such circumstances, the soundness of the verdict is questionable. In addition, the imposition of the death penalty — an inherently cruel and inhumane punishment — in the wake of an unfair trial is indefensible.5Human Rights Watch could also have pointed out that an unfair trial does not bring justice. The result of an unfair trial — whether or not the verdict is of guilt or innocence — is essentially irrelevant to achieving justice. Instead, an unfair trial reiterates the failure of the rule of law.
The views that the trial was unfair and the execution unlawful were shared by the overwhelming majority of independent jurists who reviewed the trial. Hardly any lawyer, except those who had a direct interest in the trial — such as advisors or trainers of the judges, or American or Iraqi officials — even attempted to defend the trial.
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3. Who is Responsible for the Unfair Dujail Trial? |
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According to American sources the Dujail trial was run by the Iraqis.6 American officials have even gone so far as to suggest that they even tried to delay the execution of the Iraqi President.7 The facts indicate otherwise.
First, the IST was created as the consequence of an act of aggression by the United States against the Iraqi people. The US government admitted to the Member States of the United Nations that it had attacked Iraq.8 The overwhelming majority of the international community and international legal experts condemned this attack as illegal.9 Furthermore, the United States admitted that one of the goals of its attack was to kill the Iraqi President. The US President has stated that its use of force against Iraq was done with the intention of removing the lawful government of Iraq, specifically the President of Iraq.10 The creation and functioning of the IST is an integral part of the use of force against Iraq and the occupation of Iraq, which share the primary goal of removal of the lawful President of Iraq. It is a long-standing rule of customary international law that ‘[n]o State shall recognize as lawful a situation created by a serious breach ...’ (emphasis added).11 This principle was expressly agreed to by the United States in Article 11 of the Montevideo Convention on the Rights and Duties of States12 and by the United States’ support of the resolution of the Sixth International Conference of American States condemning aggression that was adopted on 18 February 1928.
Second, the United States created the IST while it was the occupying power in Iraq.13 The Statute of the IST was drafted in English and signed into law by the US-created Coalition Provisional Authority Administrator Mr L. Paul Bremer, who did not even understand Arabic. The attempt to re-promulgate the Statute after an Iraqi government had been elected was just a fool-hearted attempt to cover-up a serious violation of both international and Iraqi law with a fig leaf. It meant that when the Dujail trial started an official copy of the IST's Statute was not even available to the defence lawyers.
Third, the creation of the IST by an occupying power violated international humanitarian law that prevents the occupying power from re-writing the laws of the occupied country14 and international human rights law requiring a competent court created by pre-existing law for a trial to able to be fair. The UN Working Group has stated that ‘one of the most serious causes of arbitrary detention is the existence of special courts’.15 The establishment of ‘special courts’ generally violates the principle of jus de non evocando that is part of the requirements of fair trial (the need for a competent court) found in Article 14 of the International Covenant of Civil and Political Rights.16 This is especially the case when the special court is intended to rubber stamp a summary, arbitrary and extrajudicial execution.
Fourth, there is evidence that the United States chose the judges, not only before the trial but when it did not agree with particular judges during the trial. In any event, there is strong evidence of the US influence, either direct or indirect. The first investigating judge was a junior lawyer who had worked as Mr L. Paul Bremer's translator. The first chief judge of the Trial Chamber, Kurdish judge Mr Rizgar Hama Amin, was forced to resign because, he claimed, political pressure was put on him by the US-created Iraqi authorities.17 The next chief judge, Judge Saeed al-Hammash, said he was forced to resign by the US-created de-Baathification Committee.18 And the judge who finally presided over the Dujail trial — who never refuted an affidavit submitted to the court by the defence lawyers that testifies that the judge had said that the Iraqi President should be executed without trial even before he became chief judge — was chosen through a murky process which it is likely the United States controlled as much as it controlled other aspects of the IST.19
Fifth, it is likely that lawyers beholden to the US wrote or strongly influenced the final judgment. This is apparent from the fact that the Iraqi judges, as Human Rights Watch concluded after having observed the Dujail trial, lacked the fundamental capacity to deal with such complex international legal issues. Instead, both the trial judgment and the Appeals Chamber judgment of the IST read like students’ work that has been corrected by a professor in an attempt to make it look reasonable. One of the self-proclaimed advisors and trainers of the judges, Mr Michael Scharf, an American law professor, even suggested he knew almost exactly the number of pages in the judgment about a month before it was handed down by the Trial Chamber of the IST and about 7 weeks before it was made available to the defendants.20
Sixth, the United States hired individuals who obstructed the defence during the trial. Not only did the United States choose and pay the judges, it even hired individuals to obstruct the meagre effort that the defence was able to make in an environment characterized by the un-investigated assassination of four defence lawyers, physical assaults on several defence attorneys (including one by a US marshal), and regular threats to defence lawyers.
This paragraph has been removed in accordance with legal advice.
The list of obstructive activities is much longer than can be discussed in this brief commentary. The defects of the trial are summarized in more detail in a report produced by some of the defence lawyers21 and have been presented to the IST, the Iraqi government, the US government, and the United Nations and many of its Member States. Such blatant interferences with the judicial procedure constitute the crime of obstruction of justice in legal systems around the world. Yet, these allegations received no response from either the Trial Chamber or the Appeals Chamber of the IST in their opinions. Perhaps, they were relying on the fact that no trial transcript of the proceedings before the IST was ever produced despite approximately 40 audio and visual recording devices stationed at very conceivable angle in the courtroom and despite repeated requests from the defence lawyers for a transcript or record of the trial proceedings.
The United States and the individuals they enlisted did all these things knowing that both the Third and Fourth Geneva Convention22 describe ‘wilfully depriving’ a person ‘of the rights of fair and regular trial’ as a war crime. Whether the United States is bound by its initial declaration that the Iraqi President was a prisoner of war or whether he was to be merely considered a civilian, his right to fair trial was protected by international humanitarian law.23
Why did the Americans lie about their role in the trial and about its fairness? Why did the US government hand over the Iraqi President to his enemies for execution after a trial that they had repeatedly been warned was unfair, even by the UN body they had designated to make this determination? Why did the US government enlist persons to obstruct the fairness of the proceedings? Did the US do these things wilfully? Did the persons involved, and acting on behalf of the US, know or intend that the trial would be unfair? And if they did understand their actions what consequences follow from their commission of acts that appear to be war crimes?
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4. The Consequences of Committing War Crimes |
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If we are to take international criminal justice seriously, we must investigate those who abuse it even in the processes that might have been established to ensure its application. Abuses to these processes are, perhaps, the most serious and damaging of all crimes to the system of international criminal justice.
The above cited Articles of the Third and Fourth Geneva Conventions state unambiguously what the consequences are for all States Parties — almost every state in the international community today — when grave breaches have been committed.
On the one hand, there is state responsibility for violations of the Conventions by the State Parties, in this case, at least the United States. On the other hand, there is the individual responsibility of those who have contributed to or alleged to have contributed to an unfair trial, a grave breach of both the Third and Fourth Geneva Conventions. This individual responsibility gives rise to an additional state responsibility that applies to every State Party to the Third and Fourth Geneva Conventions to ‘search for persons alleged to have committed, or to have ordered to be committed, such grave breaches’ and ‘bring such persons, regardless of their nationality, before their own courts ... [or] ... to hand such persons over for trial to another’ State Party.24
There is at least credible evidence that war crimes have been committed by some of the individuals who participated in the Dujail trial. This credible evidence should be investigated by an independent body and where evidence of war crimes exists the perpetrators should be brought to justice. To date there has been no concerted international effort to punish the individuals who established and guided the IST through to its unlawful conclusion. Such initiatives,25 however, could do more to restore some confidence in international justice than the continued unfair trials before the IST and the gory executions which now follow as a matter of course from the unfair proceedings.
The international community did little to stop either the trial or the ensuing executions despite the widely shared perception that the trial was unfair. Failure to investigate and punish the people responsible for the unfair trial will compound the harm already done. Moreover, this failure will significantly devalue the rule of law in the Arab and Muslim world and in the eyes of fair-minded human rights defenders everywhere. At a time when the international community is struggling to quell the violence in Iraq and in the Arab-dominated Middle East in general, sending a message that judicial means of peaceful settlement of disputes does not work because the law can be abused with impunity is not the best message. When the rule of law is debased in such a serious and public manner, respect for the law suffers a setback. When no or insufficient action is taken to redress such an abuse of law people everywhere see the law as weak and ineffective. Unless the people behind the creation and functioning of the Iraqi Special Tribunal are investigated for their role in debasing the law and are brought to justice where there is credible evidence to indicate that they willingly participated in an unfair trial, the legacy of the Dujail trial will be the memory of a ‘travesty of justice’.
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Notes |
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1 The author uses the name ’Iraqi Special Tribunal’ (or the abbreviation ‘IST’) as it is the name the Tribunal itself used in its initial communications with the author and which was used when the Dujail proceedings commenced.
2 The author refers in this paper to Saddam Hussein as the Iraqi President, as it is common practice in Iraq, as well as in the United States, for a President to maintain his title for life and to be referred to as President. Editors note: The editors are of the opinion that after the occupation of Iraq and his arrest, Saddam Hussein was no longer the Head of State, and indeed could no longer exercise the functions pertaining to that position.
3 A copy of a 129-page report written by the author and Mr Ramsey Clark, a former US Attorney-General, can be purchased from http://cdpublishing.org. This report is based on the submissions made to the Iraqi Special Tribunal in December 2005 and August 2006. For months, the IST refused to accept any challenges to either its fairness or its legality. The IST sent a clerk to return to the defence lawyers the submissions they had made in November 2005, saying that the IST did not want them and would not decide upon them.
4 The excerpt is taken from an unofficial English language translation of the Arabic opinion of the Appeals Chamber of the Iraqi Special Tribunal delivered on 28 December 2006.
5 Human Rights Watch, Judging Dujail: The First Trial before the Iraqi Special Tribunal, Vol. 18, No. 9(E) (November 2006), at 88.
6 See, for example, E.R. Ward and M.R.A. Heiman, ‘Iraqi-run Tribunal is Major Progress toward Democratic Rule of Law’, in the Christian Science Monitor (19 July 2005).
7 See, for example, CNN report entitled ‘Iraqi PM says he refused U.S. request to delay execution’ at 16:57 EST (USA) on 9 January 2007.
8 ‘Statement by Ambassador John D. Negroponte, US Permanent Representative to the United Nations, on Iraq, Before the Security Council’ on 27 March 2003, United States Permanent Mission to the United Nations, Press Release No. 40(03) (27 March 2003).
9 See Doebbler and Clark, supra note 3, at 18 endnote 16 (citing the numerous statements of states, inter-governmental bodies, and legal experts).
10 Speech by United States President George W. Bush on 14 December 2005 available at www.whitehouse.gov (visited 15 December 2005); Speech by US President George W. Bush on 12 December 2005 available at www.whitehouse.gov (visited 15 December 2005); Speech by US President George W. Bush on 7 December 2005 available at www.whitehouse.gov (visited 15 December 2005).
11 See Art. 41(2) of the International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the 53rd Sess., I.L.C. (2001), G.O.A.R., 56th Sess., Supp. 10 and Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Grotius Press, 1987), 389.
12 Ratified on 29 June 1934, T.S. 881, 49 Stat. 3097, entered into force for the United States on 26 December 1934.
13 CPA Doc. No. CPA/ORD/9 Dec 2003/48.
14 Art. 64 of the Fourth Geneva Convention Relative to the Protection of Civilians Persons in Time of War, 75 UNTS 287 (12 August 1949).
15 Report of the Working Group on Arbitrary Detention, UN Doc E/CN.4/1996/40, at 26.
16 999 UNTS 171 (adopted 1966).
17 Iraqi Kurdistan, ‘Exclusive Interview With Judge Rizgar Hama Amin’ on Monday, 11 September 2006.
18 BBC News (Middle East), ‘New Saddam judge "should resign"’, Wednesday, 18 January 2006 at 19:04 GMT.
19 The trial judge in the Dujail case, Judge Raoul Rouf Abdel Rahman, later fled to the United Kingdom where he has claimed asylum. The government has been asked to prosecute him for intentionally contributing to an unfair trial.
20 At a conference he organized at Case Western University Law School on 6 and 7 October 2006, Mr Scharf claimed to know that the opinion was 300 pages long. When the opinion was finally communicated to the defence lawyers only on 23 November 2006, it was 298 pages in length.
22 Art. 10 of the Third Geneva Convention relative to the Protection of Prisoners of War, 75 UNTS 135 (12 August 1949) and Art. 147 of the Fourth Geneva Convention, supra note 14 (this article makes wilfully depriving a civilian of a fair trial a grave breach).
23 Also see Art. 14 of the International Covenant of Civil and Political Rights, supra note 16.
24 Art. 146, 
2 of the Fourth Geneva Convention, supra note 14 and Art. 129 of the Third Geneva Convention, supra note 23.
25 One such project that has been established to gather information on the many individuals who the United States paid or otherwise enticed into participating in the Dujail trial already has amassed significant evidence of individuals' participation in a wilfully unfair trial. Individuals can contribute information via the website: http://international-crimes-in-Iraq.org.
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