THE IRAQI SPECIAL TRIBUNAL: A CORRUPTION OF JUSTICE
13 September 2006
Curtis F.J Doebbler
TABLE OF CONTENTS
The proceedings before the Iraqi Special Tribunal (IST) are an attempt to impose victors’ injustice on the Iraqi people and another example of the United States’ unfortunate disregard for international law. The clearly perceived unfairness of the proceedings and the illegality of the IST insult the Iraqi people and contribute substantially to the increasing violence in Iraq.
The carefully edited pictures of the trial released after American censorship show few Americans in the Courtroom, but behind every door and more disturbingly behind almost every action there are Americans pulling the strings.
This American puppet show of disrespect for the rule of law—a patently unfair trial—insults the basic principles upon which the United Nations is based. Harrowingly it will continue to its irreversible conclusion unless the member states of the United Nations act quickly to stop it.
The IST is illegal in its origin primarily because the invasion and occupation of Iraq are illegal.
The international community has overwhelmingly condemned the United States’ aggression against the Iraqi people. Not only have scores of leading international lawyers condemned the invasion as illegal, but so have the majority of governments. Examples of the widespread condemnation of the United States aggression against the Iraqi people include the statements of the majority of the permanent members of UN Security Council. Additionally, Germany, a non-permanent member of the Security Council in 2003, unambiguously declared that a United States-led invasion of Iraq without further Security Council authorization would violate international law. Even United Nations Secretary-General Kofi Annan has reiterated what is obvious to almost every international lawyer: the invasion and occupation of Iraq is illegal.
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 Nüremberg Tribunal described such 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 have resorted to trying their victims in a manner that insults longstanding concepts of justice and fair trial. These values have long been central to Iraqi law, Islamic values, and are international human rights. To the members of the Bush administration this action justifies or distracts attention away from its own illegal actions.
One of the ends of the illegal act of aggression was to capture, detain, try, and execute the President of Iraq, President Saddam Hussein, who had dared to stand up to the United States violations of international law. The IST, sometimes known as the Iraqi Higher Criminal Court, was created to fulfill this goal. The IST is a directly intended consequence of the United States illegal use of force.
Under international law, when illegal acts have consequences, all states are obliged not to recognize them. The United Nations International Law Commission’s Draft Articles on State Responsibility, which in relevant part reflects customary international law, states this principle explicitly: states are prohibited from benefiting from their own illegal acts.
In this case, the IST and its proceedings against Iraqi President Saddam Hussein and his colleagues are intended consequences of the United States illegal aggression against the Iraqi people. These consequences must not be recognized by any state under international law because of their illegal origins.
International humanitarian law applying to occupying powers irrespective of the illegality of the use of force also prohibits the creation of new or special courts or tribunals and the political manipulation of an existing judiciary. The longstanding and almost universally ratified provisions of the Fourth Geneva Convention forbid changes to the laws or judicial system of a country under occupation.
As if the inherent illegality of the IST were not enough, the United States has constantly taunted the international community by orchestrating a trial that is as widely criticized as unfair and even farcical.
In the proceedings to date the IST has violated almost every provision of the right to fair trial in article 14 of the International Covenant on Civil and Political Rights that could be violated that at juncture of the proceedings.
The security of all participants in the IST proceedings is constantly threatened; the competence, independence, and impartiality of the IST is constantly undermined; and the ability of the IST to conduct a fair trial is irreparably compromised. These deficiencies are highlighted by the fact that four of the five originally selected judges of the IST have been either replaced or killed and almost half the defense lawyers representing the Iraqi President have been killed.
The Security concerns alone are reasons that a fair trial cannot be held before the IST in Iraq.
Already before the proceedings began, in March 2005, the Associated Press reported that a judge on the tribunal had been killed.
In late November 2005, another judge recused himself after the trial had started, according to the Associated Press, “… because one of the co-defendants may have been involved in the execution of his brother.”
In January 2006, two judges resigned in a matter of weeks. First, IST Chief Judge Rizgar Amin was pressured into resigning by, among other individuals, Ali al-Adeeb, a senior Shiite official in Prime Minister Ibrahim al-Jaafari's party and a member of the Interim legislature, who declared to the Associated Press that “[t]he Chief Judge should be changed and replaced by someone who is strict and courageous.” Shortly thereafter Judge Rizgar Amin was pressured to rescind his resignation.
In January after Judge Amin refused to rescind his resignation, the new Chief Judge of the IST was announced as Saeed al-Hammash. Within days he too was removed because of pressure from Ali Faisal, the head of the de-Ba’athification Commission, which is a creation of the U.S.-led occupying powers.
On 24 January 2006, The Jordan Times reported that a new judge, Raouf Rasheed Abdel-Rahman, was brought in by the powers controlling the IST. This judge is from Halabja, one of the cities in which it is claimed that the defendants committed crimes against multiple victims. It can be assumed that he is a relative or friend of some of the alleged victims. He is also alleged to have called for the President’s execution without trial before joining the IST.
On 10 February 2006, Kurdish Media reported that 60-year-old Judge Ali Hussein al-Shimmiri had died. This judge had allegedly had an altercation with the new Chief Judge at a prior meeting of the IST and had fallen ill afterwards.
Finally, even before the trial began Judge Dara Nureddin refused to join the IST after having been nominated because he had allegedly been convicted and sentenced to prison by the courts functioning under the government of Iraqi President Saddam Hussein.
Shortly after joining the IST, new Chief Judge Raouf Rasheed Abdel-Rahman refused to provide a reasoned decision on a motion seeking his disqualification for bias. Despite his refusal to decide the motion in first instance, he has alleged that the Court of Appeal of the IST has decided the motion, but again no written decision has been provided. When a decision was finally provided it rejected the defense motion claiming that it should have been submitted before the proceedings on the merits started in October 2005, almost five months before Judge Abdel-Rahman whose disqualification was sought, had joined the IST. It was thus impossible for defense counsel to have challenged his impartiality at that time.
On 20 October 2005, just one day after the first hearing, defense lawyer Mr. Sadoon al-Janabi was gunned down by individuals claiming to be from the Iraqi Interim Ministry of Interior.
On 8 November 2005, another defense lawyer, Mr. Adil Mohammad Abbas al-Zubeidi, was killed and a colleague seriously injured, again with alleged involvement of the Iraqi interim government and the occupying United States forces, according to independent news reports.
On 21 June 2006, a third defense lawyer, Mr. Khamis al-Obedi, was killed, again under circumstances in which both Iraqi and United States authorities appeared to be involved.
Already after just a few days of the second trial before the IST and while the verdict from the Dujail proceedings is being awaited in the early days of September 2006, a fourth defense lawyer, Abdel-Moneim Hussein Yassin, was murdered.
Among the other striking violations of the human right to a fair trial are the lack of equality of arms between the parties and the lack of an independent and impartial tribunal.
The inequality of arms can be illustrated simply in dollar values. The United States has spent hundreds of millions of dollars supporting the prosecution of the Iraqi President. This stands in stark contrast to the defense lawyers who have been volunteering their services as pro bono lawyers with no adequate resources.
The inequality of arms can also be illustrated in terms of the amount of time that each side has been allowed to prepare their case. 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. In contrast, the defense lawyers, despite requesting visits with their client since December 2003 when he was detained, have never 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. Moreover, the defense was provided just a matter of minutes to begin presenting its defense, including calling defense witnesses, after the charges were made known on 15 May 2006. And within weeks, as compared to the months allowed the prosecution, the defense was forced to end its defense after being told it could not call any more defense witnesses.
As if this were not enough, evidence was also withheld from defense counsel. The defense lawyers were denied access to investigative hearings, were denied prior notice of witnesses, and were prevented from even visiting the site of the alleged crime.
Frequently trial sessions have been announced without advance notice and without any consultation with the defense lawyers. This makes it impossible for the most experienced lawyers to attend the hearings and they have thus missed their only opportunities for meetings with the President.
All of these rights are part of the right to a fair trial under both Iraqi law and international law. This law, however, is violated with impunity. The extent of this impunity was evidenced on 24 January of this year when the judicial clerk Mr. Riza Hasan attempted to return the more than fifty page brief that had been submitted to IST claiming that “the judges did not want it.” Perhaps he was explaining why none of the motions that have been submitted to the IST, including motions on illegality of the IST and disqualification of specific judges, have never received a reasoned reply and most have received not reply at all.
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 through publicly acknowledged interference that can be attributed to the United States’ interference. The judges have been continuously harassed by Iraqi and American politicians. Even American President George W. Bush has declared that the trial is on track and that the Iraqi President will be executed.
And as an apparent attempt to prevent the disclosure of the serious violations of human rights, the IST has repeatedly refused to provide defense lawyers a transcript of the proceedings.
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 evidencing the involvement of the United States authorities and the Iraqi authorities who are cooperating with them. In May 2006, a defense witness was killed after his whereabouts were disclosed to US authorities.
The judges’ lack of impartiality has also been repeatedly made apparent. In a film shown in France in 2005 and produced by Jean-Pierre Krief for Arte France and KS Visions, a judge of the IST states that the Iraqi President who at the time was about to go on trial before the IST 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.” In the same film, another judge states that the President is “one of the worst tyrants in history.” These are not the statements of impartial judges, who in the inquisitorial system of justice such as that of the IST, is both the evaluator of law and fact. These are instead the statements of persons who have been put in place by an illegal occupying power to serve its ends and not to achieve justice.
On 12 of June, 2006, further evidence of the bias of IST was provided. In public, in the presence of all participants in the proceedings in the courtroom, a judge of the IST proceeded to read out loud a series of allegations of unethical conduct by defense counsels. The judge accused the defense counsel for the President of bribing their own witnesses. The allegations were claimed to have been based on statements made by the defense witnesses who had in the interim been beaten, arrested and held without access to counsel of their choosing by the Iraqi government with the cooperation of the United States authorities. These allegations were read in front of the lawyers’ clients and in a public session of the IST panel that is trying the clients of these lawyers. The IST did not bring the defense witnesses into the courtroom, although it had had them in custody for almost two weeks before this statement was made. The IST did not provide defense counsel copies of the allegations nor the right to respond to them. And the IST subsequently—through a person who claimed to be an officer of the IST—threatened the defense lawyers with arrest if they challenged the IST’s actions.
These numerous incidents are irrefutable evidence that the IST is biased, the trial is unfair, and that a mistrial must be declared.
In March 2006 the European Court of Human Rights avoided deciding whether the trial violated international human rights law by claiming that it had no jurisdiction. The European Court supported its ruling by holding that it had not been proven that any of the European members of the American-led coalition were involved in the trial. The European Court did implicitly seem to agree that it was the United States—and not Iraq—that was 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 on 31 August 2005 and again on March 2006 explicitly confirmed that the United States shared responsibility with the Iraqi authorities. Annex’s A, B, and C.
These international 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.” Annex C.
No unbiased observer has considered the IST to be both legal and acting with respect for the human right to a fair trial. Many observers have had the courage to condemn the IST it for its illegality or violations of human rights.
Both, Professor M. Cherif Bassiouni of DePaul University, a leading expert in international criminal law and the IST original architect, as well as Professor Leandro Despouy, the United Nations’ expert on fair trial, have called for the trial to be held before a truly international court under UN auspices. Both these eminent experts have pointed to the several recent examples of tribunals or courts under United Nations auspices that can ensure justice and a fair trial.
Only removing the trial to a forum that can ensure a fair trial will restore respect for the rule of law. The solutions proffered by the United States to date merely emulate and emphasize already serious violations of international law. Furthermore, the path currently being followed before the IST indicates a significant disregard for international law.
Although there is a widespread perception that the trial is illegal and unfair, the Security Council, has to date refused to act to ensure respect for the rule of law.
The UN Security Council has acknowledged in its Resolution 1483(2003) that the Secretary-General’s Special Representative for Iraq is responsible for “promoting the protection of human rights” in Iraq, but little successful action has resulted from this acknowledgment.
The situation has deteriorated to such a state that in early 2006 the outgoing UN human rights chief in Iraq, Mr. John Pace, described the situation of human rights in Iraq as the worst it has ever been and deteriorating daily.
The UN should take a stand on the issue of unfair trial as part of its explicit mandate to promote human rights in UN Security Council Resolution 1483(2003). 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.
The international community failed to stop the United States’ illegal aggression against the Iraqi people and the United States illegal—foreign and oppressive—occupation of the Iraqi people. Now insufficient action is being taken to stop an unfair and illegal trial with the consequence that this abuse of law is substantially contributing to the increasing violence in Iraq.
Background to the United States Illegal War of Aggression
In the 1980’s, the United States had sought out and established the relationship of an ally with Iraq according to official United States documents. This relationship was strengthened when current United States Secretary of Defense Donald Rumsfeld, as a special envoy of the United States government, traveled to Iraq for a highly publicized visit to Iraqi President Saddam Hussein to assure him of America’s friendship and support.
It was only after Iraq refused to follow the United States’ agenda, starting in 1988, that the United States began it campaign against the Iraqi people in earnest.
The first manifestation of this campaign was the use of force against Iraq in 1991 followed by years of deadly sanctions. The sanctions started after the conclusion of the first Gulf War on 3 March 1991 and remained in effect through the most recent war. The sanctions killed hundreds of thousands of Iraqi children. The sanctions were maintained by the United States despite the clear objection of the overwhelming majority of states in the international community and resignation of several senior international officials who cited the humanitarian tragedy being caused to the Iraqi people by the sanctions. At the time, the United States Ambassador to the United Nations, Ms Madeline Albright, coldly accepting that a half million Iraqi children with the inhuman retort that in America “we think the price is worth it.”
At the same time, and despite the fact that a ceasefire had been agreed on 3 March 1991, the United States and its allies continued to enforce a no-fly zone over much of Iraq by carrying out regular bombing raids against the Iraqi people.
Finally, at approximately 02:30 GMT on 20 March 2003, the United States elevated its aggression against Iraq to an international armed conflict by leading an all out attack against the Iraqi people.
The United States acknowledged responsibility for this attack at the highest levels of its government. Senior legal advisors of the United States government justified the attack as a “preemption of Iraq’s possession and use of weapons of mass destruction.”
Emerging from a meeting with American CIA director George Tenet in 2002, the United Kingdom’s intelligence chief Sir Richard Dearlove stated that “Bush wanted to remove [Iraqi President] Saddam [Hussein], through military action, justified by the conjunction of terrorism and WMD [weapons of mass destruction]. But the intelligence and facts were being fixed around the policy.”
No evidence of links to terrorism or weapons of mass destruction was ever found to have existed. The United States and its allies had lied to the world or even worse had attacked another country out of pure ignorance. None of the justifications given by the United States and its allies, even if they had been true, however, could have justified the use of force against another country. The use of force by one country against another, unless required as an act of self-defense or in furtherance of a unambiguous Security Council decision under Chapter VII of the Charter of the United Nations is absolutely prohibited as norm of jus cogens.
The United States’ attack against the Iraqi people that began on 20 March 2003 pitted the world’s most advanced and most expensive military against a country that had been subjected to more than a decade of deadly sanctions.
Under the rule of Iraqi President Saddam Hussein, Iraq was transformed into a country with a high literacy rate, good medical care, and an effective social welfare system. The Iraqi people were transformed from a developing country to a developed country with health and social development indicators improving spectacularly.
The imposition of sanctions on Iraqi in 1990 seriously obstructed the development of Iraq. Despite the sanctions the state health care, education, the economy, and the judiciary are widely considered to be of a far higher quality than those currently functioning are under occupation. A reputable 1991 study by noted international development economists indicated that the distribution of rations by the government of Iraq was equitable even shortly after the country had been ravished by the war in early 1991. This study also reliably estimated that infant mortality had tripled as a result of the war.
The United States’ 2003 attack on the Iraqi people has been reliably estimated to have caused at least 150,000 additional civilian deaths in the first year alone, according to a study by reputed scientists published in the highly respected British medical journal The Lancet. This figure excluded the casualties in what was reported as a ‘massacre’ in Fallujah.
The use of force against Iraq that began on 20 March 2003 threatened international peace and security and interfered with the territorial integrity and political independence of Iraq. The international peace and security is threatened by the deployment of hundreds of thousands of soldiers under United States control and in a manner that threatens the right to life of every one of the estimated 26 million Iraqis. Today there are still over a 100,000 of the invading soldiers occupying Iraq.
The territorial integrity and political independence of Iraq has been violated by the aggression that is still continuing today with parts of Iraq under occupation and administered by a government that is publicly colluding with the occupying powers that mounted the original aggression against the people of Iraq.
The overwhelming majority of international legal scholars and government leaders consider this use of force a violation of the most fundamental provisions of international law in the Charter of the United Nations. No unbiased observer has considered the IST to be both legal and acting with respect to human rights.
The attack against Iraq by the United States and its allies is a violation of international law and the IST created to carry out the objectives and purposes of the unlawful use of force is illegal.
The illegal attack by the United States and its allies against Iraq is undisputedly attributable to these states. As indicated below, these parties themselves have claimed that they carried out the attack. The attack is also a violation of the jus cogens principle international law that one state must not use force against another.
In Part I, which follows, it is shown that the United States action is a violation of an international obligation found in both treaties and customary international law that incurs it responsibility and special obligations for other states in the international community.
On 20 March 2003, the United States began to use illegal force against Iraq. That this illegal use of force is attributable to the United States and its allies is not in dispute. First, the United States Congress passed a Joint Resolution authorizing the use of force against Iraq in the law. Second, the United States government stated to the world that it was attacking Iraq when at 03:15 UTC on 20 March 2003 (22:15 EST on 19 March 2003) United States President George W. Bush announced that he had ordered an "attack of opportunity" against Iraq. Finally, the United States government admitted to the Member states of the United Nations that it was attacking Iraq.
An act of aggression by a state constitutes one of the most serious violations of international law against the entire community of nations. The aggression against Iraq is one of the most serious acts in the international community in recent years. The individuals involved in it as well as those who provide indirect support committed the international crime of aggression that the Nuremberg Tribunal described in the following language:
War is 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.
A war of aggression is a violation of the international obligations of the states involved, particularly the United States. The legal obligations of the United States and its allies are contain in treaties and customary international law.
The prohibition on the use of force is enshrined in article 2, paragraph 4, of the Charter of the United Nations. This article prohibits “the threat or use of force against the territorial integrity or political independence of any state.” The United States, its allies in the invasion, as well as the Iraqi government, have all ratified this treaty. The prohibition on the use of force is one of the most fundamental principles of the Charter and a basic principle of international law. In its statements before the International Court of Justice, the United States government has itself recognized that it is “generally considered by publicists that Article 2, paragraph 4, of the United Nations Charter is an embodiment of the existing general principles of international law,” and that it is “inconceivable that this Court could consider the lawfulness of an alleged use of armed force without referring to the principal source of the relevant international law—Article 2(4) of the United Nations Charter.”
The International Law Commission has long held that “the great majority of international lawyers today unhesitatingly hold that Article 2, paragraph 4, together with other provisions of the Charter, authoritatively declares the modern customary law regarding the threat or use of force.”
By using force against Iraq, the United States violates its legal obligation under article 2, paragraph 4 of the Charter of the United Nations.
The obligation to refrain from the use of force in international relations is also found in articles I and II of the General Treaty for the Renunciation of War. This treaty has been ratified by the United States government and remains in force today. Article I of this treaty states that “[t]he High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.”
In considering states’ obligations under this treaty, the prestigious International Law Association has declared that a “state which threatens to resort to armed force for the solution of an international dispute of a conflict is guilty of a violation of the Pact.”
Lacking a justification for its use of force against Iraq, the United States and its allies have violated their legal obligations under the General Treaty for the Renunciation of War by using force against Iraq.
The rule prohibiting the use of force is also well-established under customary international law. The International Court of Justice referred to the rule as a “fundamental principle outlawing the use of force in international relations.” When discussing the law of treaties, the International Law Commission declared that “… the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.” A jus cogens rule of international law is non-derogable under any circumstance. That the prohibition of the use of force constitutes a rule in international law having the character of jus cogens cannot be in doubt today given the overwhelming body of opinions supporting this position. This is supported by the uncontested statements of both parties before the International Court of Justice; statements of the International Law Commission; uncontradicted statements by numerous Governments at the Vienna Conference on the Law of Treaties; and United Nations General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
As this rule prohibits the use of force in relations between states, it is clearly violated when one or more states use armed force against another state. The United States and its allies violated this rule of law when they used force against Iraq starting in March 2003.
The prohibition of the use of force is violated whenever one or more states use force against another state without lawful justification.
Under modern international law, only two justifications exist for the use of force by one state against another: self-defense or express UN Security Council authorization.
The justification of self-defense is established in article 51 of the Charter. This provision allows states to respond to an armed attack by using force until the United Nations Security Council intervenes to assert jurisdiction over the dispute. Self-defense is only a legal justification for the use of force when a state has directly suffered an armed attack. In reviewing the facts of this case, there is no indication that the United States or any of its allies were ever subjected to an attack by the government of Iraq. Such threat has been considered not to exist by the United States' own Central Intelligence Agency and Naval War College.
The second justification for the use of force exists if the United Nations Security Council has expressly authorized it. The United States has claimed that UN Security Council Resolution 1441 represents such an authorization. This argument is premised on the assumption that Resolution 678(1991), authorizing the use of force and imposing a lengthy list of obligations on Iraq, has been breached, and that in order to remedy such a breach, Resolution 1441(2002) implicitly authorizes the use of force by re-activating Resolution 678.
Such argument contradicts the position taken by the United States when Resolution 1441 was adopted. On the day of the vote on Resolution 1441, the then-U.S. Ambassador to the UN John Negroponte, reaffirming that this had consistently been the position of the United States government on this matter, stated that in the event of a ‘further breach’ by Iraq, “this Resolution contains no 'hidden triggers' and no 'automaticity' with respect to the use of force,” adding that “[i]f there is a further Iraqi breach reported to the Council by UNMOVIC, the IAEA, or a member state, the matter will return to the Council for discussions.” This argument regarding the automaticity of SC 1441 was also rejected by three permanent members of the Security Council, the majority of states on the Security Council, and the overwhelming majority of legal commentators. Even former staunch United States’ ally, the former Prime Minister of the United Kingdom Baroness Margaret Thatcher, criticized the invasion as illegal. And opinion polls showed that a significant majority of the people of nearly all countries or the world opposed the war without an UN mandate, and that many people viewed the United States as a danger to world peace.
In any event, the use of force authorized in UNSC Resolution 678 explicitly ended on 3 April 1991 when the Security Council adopted Resolution 687. This resolution ended all authority for using force against Iraq.
As the United States’ justification for the use of force is fatally flawed, its attack against Iraq was not justified and therefore violated international law.
A longstanding principle of international law is that the consequences of an unlawful use of force must not be recognized as lawful, especially if the consequences are carrying out the objectives and purposes for which the unlawful use of force has been undertaken.
Reflecting a rule of customary international law, article 41(2) of the International Law Commission’s (ILC) articles on State responsibility unequivocally states that “[n]o State shall recognize as lawful a situation created by a serious breach …” [emphasis added].
This principle was expressly agreed to by the United States in article 11 of the Montevideo Convention on the Rights and Duties of States and by the United States’ support of the resolution of the Sixth International Conference of American States condemning aggression on 18 February 1928.
This principle is also supported by highly qualified legal publicists. For example, Professor Bin Cheng, one of the leading experts on general principles of international law, surveying the practice of international and national tribunals, wrote almost two decades ago that "[t]he judicial essence of responsibility is that it imposes an obligation upon every subject of law who commits an unlawful act to wipe out all the consequences of that act and to re-establish the situation which would, in all probability, have existed if that act had not been committed. It is a logical consequence flowing from the very nature of law and is an integral part of every legal order."
In this case, this well-established principle of law requires at least that consequences that perpetuate, and are a direct aim of the original illegal act of use of force, must be reversed and must not be recognized as legal by any state. The creation and functioning of the IST is one of these consequences. The IST must therefore not be recognized as legitimate by any state in the international community.
The IST was created by the Coalition Provisional Authority (CPA). The CPA, itself an entity that was created by the countries that are occupying Iraq, is a consequence of the illegal use of force against Iraq. The occupying powers have “all executive, legislative and judicial authority” according to their own proclamation in Section 1 of CPA Regulation No. 1. The United States is the country primarily responsible for the creation of the CPA and therefore, the IST.
The United States 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. 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.
Furthermore, the Statute creating the IST is a direct consequence of the illegal invasion and occupation of Iraq. The IST was formed not by a sovereign act of the Iraqi people, but by the fiat of the occupying powers which issued CPA Order No. 48. The exercise of jurisdiction by the IST despite such inherent illegality must not be recognized as legal by any state—including a subsequent state of Iraq government—as to do so would violate a general principle of the international law of state responsibility that the consequences of illegal actions must not be recognized.
The attempt by the US-led occupying powers operating through the Iraqi Interim authorities to shift the responsibility for the IST to the Iraqi Interim authorities by urging them to re-adopting the Statute that had in effect already been adopted by CPA Order No. 48, with new legislation that makes only cosmetic changes of the on an unspecified date in August 2005, is merely an attempt by the US-led occupying powers to derogate from its obligations under the law of occupation that is stated in articles 54 and 64 of the Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 12 August 1949.
This attempt was carried out by the Governing Council, which is itself a body created by the US-led occupying powers who are represented by the CPA. This is made clear by CPA Regulation No. 6 that unequivocally states that the
The CPA recognized the formation of the Governing Council as the principal body of the Iraqi interim administration, pending the establishment of an internationally recognized, representative government by the people of Iraq, consistent with Resolution 1483 (emphasis added).
As is the case of all CPA regulations, CPA Regulation No. 6 has been adopted by the US-led occupying powers through the CPA, which they control, not a sovereign Iraqi government. Since the occupation of Iraq began in March 2003 no elections meeting the standards of UN Security Council Resolution 1483 have taken place.
The subsequent attempts to legitimize the IST are based on faulty foundations emanating from the CPA, the Iraqi Governing Council, or an Iraqi government that was named only after elections that were orchestrated by the United States. All persons supporting the previous government were banned from the elections, coercion was used to ensure voters turned out and voted as the occupiers wished, and funds were even provided to the campaigns of person supporting the occupying regime. As a result the elections were little more than an attempt to justify the occupation and the victors depended on the occupiers to survive in power.
Further evidence of the fact that the IST was created by the occupying powers is the fact that all the trial judges, appellate judges, investigating judges and prosecutors had to be formally approved by the United States. This practice apparently continues to date as in early 2006 a judge, nominated by his peer to be the Chief Judge, prevented from sitting on a case by a United States established vetting agency.
It is also clear that subsequent action cannot transform an entity that is illegal into one that is legal when the foundation of legality at issue are the initial illegal acts of invading Iraq and the subsequent attempt to reorder its courts.
The non-recognition of illegal actions is a responsibility of states that has been recognized by the International Court of Justice as being part of customary international law. This elementary principle is binding on every sovereign state including Iraq. If the Iraqi authorities were to recognize the consequences of the United States’ illegal act, this would make the current government of Iraq jointly responsible for the violation of international law that occurred on its own soil when armed force was first used against the Iraqi people in March 2003. Such a situation would not only incur the current government of Iraq’s responsibility for the violence against its own people under international law, but would also indicate to the Iraqi people how politically unfortunate a position its own government is willing to adopt as pertains to the slaughter of hundreds of thousands of its own citizens in violation of international law.
Iraqi is occupied by the United States and its allies according to international law. Article 42 of the Hague Regulations provides that “[t]territory is considered occupied when it is actually placed under the authority of the hostile army.” As such, from the day United States forces gained control over Iraq's territory, the country was deemed occupied. By 1 May 2003, when the United States President and Commander-in-Chief of its military announced that major military operations had ended, Iraq had become occupied land.
Articles 54 and 64 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War (hereinafter “Fourth Geneva Convention”), provide respectively that an occupying power may not “alter the status of public officials or judges in the occupied territories”, that “the penal laws of the occupied territories shall remain in force”, and that “no new penal laws may be issued.”
Article 54 of the Fourth Geneva Convention states in relevant part that “[t]he Occupying Power may not alter the status of public officials or judges in the occupied territories…” and article 64 states in relevant part that “[t]he penal laws of the occupied territory shall remain in force … the tribunals of the occupied territory shall continue to function…” These provisions state the general rule, in accordance with the general object and purpose of this treaty and international humanitarian law, which is that an occupation is not permanent and the occupying powers must not change the laws of institutions of an occupied country.
The rationale behind article 54 of the Fourth Geneva Convention is explained in the International Committee of the Red Cross’ Commentary as:
[j]udges and other members of the judiciary, for their part, are the natural guardians and protectors of the inhabitants of the country in their relations with the Occupying Power and their resignation might well paralyse the whole administrative and judicial machinery, in which case protected persons would be the first to suffer.
Indeed subsequent to the United States-led invasion and occupation of Iraqi, this grim prediction has been proven valid in cases such as Abu Ghraib, Tal Afar, and Fallujah, among many others examples. In these cases, Iraqi civilians have been brutalized while being prevented from having any meaningful recourse to the courts to protect their rights. This is largely because the existing Iraqi courts were not allowed to function or because these courts were prevented from functioning by the state of insecurity that is the result of the illegal aggression against, and occupation of, Iraq.
Similarly the rationale behind article 64 of the Fourth Geneva Convention is explained in the International Committee of the Red Cross’ Commentary as being the “fundamental notion” that “the penal legislation in force must be respected by the Occupying Power.” Furthermore, the only two exceptions for which the occupying power might change any penal law—substantive or procedural—are “two exceptions … of a strictly limitative nature” and not derogating from the general rule that “[t]he occupation authorities cannot abrogate or suspend the penal laws for any other reason -- and not, in particular, merely to make it accord with their own legal conceptions.” 
Neither of the permitted exceptions—the security of the occupying forces or making the law more humane for the occupied population—apply in this instance. The creation of the IST has had an effect of contributing to the deterioration of security of the occupying forces as it is widely viewed as an example of the occupiers’ oppression. Furthermore, as indicated by the long catalogue of human rights violations documented here the IST is not able to secure the basic due process rights of the individuals who are before it and it thus treats the occupied population inhumanely.
Both articles 54 and 64 were violated when the US-led occupying power created the IST.
In addition to their obligations under articles 54 and 64 the occupying powers must not:
-change the administration of an occupied territory according to articles 51, 54 and 64 of the Fourth Geneva Convention and articles 43 and 48 of the Hague Regulations;
-change the legal system according to article 43 of the Hague Regulations;
-prosecute inhabitants of occupied territories for acts committed before the occupation began, according to article 70 of the Fourth Geneva Convention; and,
-enact retroactive penal provisions according to article 65 of the Fourth Geneva Convention.
Moreover, according to article 7 of the Fourth Geneva Convention, the occupying power must not enter into agreements with any authority in the occupied territories that “shall adversely affect the situation of the protected persons, as defined by the present Convention, or the rights which it confers upon them.”
The manner in which the IST was created and the provisions of its enabling Statute violate each and every of these provisions.
As already shown, the IST was created by the occupying powers while they occupied Iraq. The enabling Statute of the IST was drafted by the CPA and enacted by a decree of the CPA before any attempt was made to transfer authority back to the Iraqi people. The Iraqi authorities attempt to re-adopted the Statute in August 2005 was nothing less than a ratification of the CPA action by a body created by the CPA and not representative of the Iraqi people.
That the occupying power, through the CPA, created the IST is established by the fact that Order No. 48, containing the Statute of the Iraqi IST, had to be signed by CPA Administrator L. Paul Bremer before it could enter into force.
The Statute of the IST also contains provisions which modify the penal provisions of Iraqi law in an ad hoc manner. For example, some provisions of existing Iraqi law are incorporated into the document in article 14 of the Statute of the IST; while others are left out, apparently because they would be favorable to defendants coming before the IST, for example, article 40 for example of the Constitution of Iraqi from 1970 provides for head of state immunity.
Furthermore, Section 2 of CPA Order No. 15 of 23 June 2003 sought to suspend provisions of the Iraqi Law on Judicial Organization, which violates articles 54 and 64 of the Fourth Geneva Convention.
The creation of the IST in 2003 and its re-creation in 2005 were unmitigated attempts by the US-led occupying powers to alter the penal laws of the occupied territories.
By attempting to add an ‘extraordinary’, ‘exceptional’ or ‘special’ tribunal to the existing Iraqi judiciary, the creation of the IST constitutes an attempt to change the legal and administrative system of the occupied territories.
Furthermore, by vetting and naming judges based on their political opinions the occupying powers impermissibly altered the status of judges in the occupied territories.
These attempts violate international humanitarian law and make the IST an illegal body.
The IST was created by the United States despite the existence of courts, judges, and a process for both creating courts and naming judges. These processes are set forth in section IV, articles 60 and 61 of the Iraqi Constitution of 16 July 1970 and the Iraqi Law on Judicial Organization. These laws were in force when Iraqi was subjected to a war of aggression in 20 March 2005. The Iraqi laws intentionally created a judiciary that was different from that of the United States and Europe. Nevertheless, these existing laws were ignored and a judicial model based upon foreign traditions and written by American lawyers was imposed on Iraq.
The United States promulgated CPA Order No. 15 on 23 June 2003 in English. It was not until 126 days later that an Arabic copy was produced and available to the Arabic language Iraqi population. Section 2 of Order No. 15 sought to suspend provisions of the Iraqi Law on Judicial Organization, but did not specify which provisions were suspended.
Section 1 of this CPA Order established a Judicial Review Committee that was expressly made subordinate to the CPA. According to Section 6 of Order No. 15 the Judicial Review Committee is “bound by and operating in accordance with its Terms of Reference and any Regulations, Orders or Memoranda issued by the [CPA] Administrator.”
Among those Order sand Memoranda issues by the CPA are De-Ba’athification Order No. 1 and Coalition Provisional Authority Memorandum Number 1 on the Implementation of De-Ba’athification Order No. 1. The essence of these CPA promulgated instruments, which the Judicial Review Council is bound to implement, is that no Iraqi who is a member of the Ba’ath party may be a judge and those who are already judges may be removed. Indeed, more than a hundred Iraqi judges have been removed because of their affiliation with the Ba’ath party.
In additional CPA Order No. 17 entitled “Status of the Coalition Provisional Authority, Certain Missions and Personnel in Iraq” and issued on 27 June 2004 declares that all United States personnel are immune for the jurisdiction of the IST. Thus despite the fact that the IST attempts to apply penal law retroactively to Iraqis who would otherwise be immune under the law existing a the time of their alleged offenses, it both retroactively and proactively makes immune the United States soldiers who have participated in war crimes, crimes against humanity, and the crime of aggression against Iraqis. Iraqi Prime Minister Nuri al-Maliki recognized the hypocritical nature of this situation when he was forced by the Iraqi public to call upon the UN Security Council “to lift the immunity” of American soldiers.
Furthermore, the members of the Judicial Review Committee are three Iraqis and three internationals who serve at the discretion of the CPA, according to Section 3 of Order No. 15. This allows the United States to effectively control the Iraqi courts.
Although vaguely defined in Order No. 15—apparently to obscure a conflict with international law concerning the independence of the judiciary—the responsibility and task of the Judicial Review Committee, which it exercises in practice, is to screen judges for their political affiliations. This ensures the elimination of judges who are hostile to the illegal occupation of Iraq or partial to former government of Iraq or the Ba’ath party. This function is made clear by reading CPA Order No. 15 in conjunction with CPA Order No. 1. In the case IST, it members were subject to the same screening process. The panel of IST judges hearing this case, to the best of defense counsels’ knowledge, was subjected to a screening process that eliminated all Sunni candidates; thus ensuring that judges retained to serve would be drawn from a panel of Kurd and Shia judges.
The IST itself was created by Order No. 48. The latter contained the Statute of the IST and was signed by CPA Administrator L. Paul Bremer on 10 December 2003. At that time, the Iraqi Law of Judicial Organization was already the basis of the judiciary and de jure remained so in accordance with article 64 of the Third Geneva Convention, which unequivocally states that “… the tribunals of the occupied territory shall continue to function...”
The IST was created outside of, and is in direct conflict with, the established Iraqi legal system. Although approved by a special provision of the TAL adopted on 8 March 2004, the IST is nothing more than a United States proxy as the Iraqi Governing Council itself and the TAL had been created by the United States controlled CPA. Both the TAL and the Iraqi Governing Council were created and adopted while Iraq was under illegal occupation. United Nations’ Security Council Resolution 1511 this fact by recognizing both the TAL and the fact that Iraq is an occupied country.
The exceptional nature of the IST is recognized by the manner in which it was referred to in the authoritative text at the time it was adopted—the English language text which calls the body the “Iraqi Special Tribunal.” The language of article 48 that refers to the IST as a ‘special tribunal’ is in complete contradiction with articles 3, 12, 15(1) and 43 of the same instrument.
Article 15(I) of the TAL unequivocally states that “special or exceptional courts may not be established.” This provision is expressly violated by the establishment and continued functioning of the IST. This violation cannot be remedied by reference to article 48, as to do so would be to undermine the very essence of the rule of law in Iraq.
Additionally, the IST is inconsistent with Iraqi law because it violates basic principles of international human rights law which are binding on the Iraqi government authorities according to article 44 of the Iraqi Constitution.
The competence of a court anywhere in the world is based first and foremost on the fact that it has been created in accordance with pre-existing law. This has been stated unambiguously by the state parties to the International Covenant of Civil and Political Rights (ICCPR) describing the requirement of a “competent” court in accordance with article 14 of this treaty. Iraq and the United States are parties to the ICCPR.
Article 14 of the ICCPR requires that courts be established under preexisting law. This provision is intended to ensure that courts are not established to adjudicate specific cases based on political or other biases. This article is further explained by Principle 5 of the Basic Principles on the Independence of the Judiciary, which states that:
[e]everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
Principle 5 has, as such, been interpreted as expressly prohibiting the use of special courts. The United Nations Working Group has stated that “one of the most serious causes of arbitrary detention is the existence of special courts.” Annex A.
A court specially created to try only specific individuals for specific offences constitutes a form of vindictive injustice that undermines the rule of law and can cause irreconcilable divisions in Iraqi society. The IST is prohibited from prosecuting persons who are committing serious breaches of international law, such as the United States’ soldiers and politicians who authorized and carried out acts of illegal aggression against the Iraqi people.
The IST violates general international law prohibiting a state from benefiting from its own illegal use of force. The IST also violates international humanitarian law and Iraqi law because it was created by the occupying powers in manner that is inconsistent pre-existing Iraqi law and in violation of international humanitarian law.
This evaluation takes into account the following treaty obligations or obligations under customary international law to which Iraq and all or some of the occupying powers are legally bound: the Charter of the United Nations (1945); the International Covenant of Civil and Political Rights (ICCPR); the International Covenant of Civil and Political Rights (ICESCR); the Convention on the Rights of Children; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Elimination of All Forms of Racial Discrimination; the Regulations annexed to the Fourth Hague Convention Respecting the Laws and Customs of War on Land, (hereinafter “Hague Regulations”); the Third Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949 (Third Geneva Convention); the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention). All of the provisions of all of these instruments remain in force today and are part of Iraqi law either as treaties or as reflections of customary international law.
The United States is additionally bound by the rules of customary international law reflected in the American Declaration on the Rights and Duties of Man.
The right to a fair trial is well established in Islamic, Iraqi and international law. Highly qualified legal publicists have written that the “importance of this right in the protection of human rights is underscored by the fact that the implementation of all other rights depends upon the proper administration of justice.” Article 20 of the original Statute of the IST, article 19 of the new Statute of the IST, article 14 of the International Covenant of Civil and Political Rights, as well as numerous other international human rights instruments, all provide for the right to a fair trial.
The right to a fair trial is fundamental to every society and very person. The United States government has criticized other states who have taken similar actions as violating the human right to fair trial under international human rights law.
Since its inception the IST has been plagued by its inability to function and its inability to ensure respect for human rights. During the whole of the Dujail trial President Saddam Hussein has still not been able to have a single confidential meeting with his legal counsel that provides him the opportunity to prepare his defense.
During the proceedings there has also been no written and reasoned decision by the IST on any of the motions submitted by defense counsel, namely:
a. 19 October 2005: A motion indicating that notice of evidence and witnesses was not provided to defense counsel in a timely manner.
b. 19 October 2005: A motion calling for the proceedings to be suspended due to insecurity.
c. 8 December 2005: A preliminary motion challenging the legality of the IST and its failure to ensure respect for human rights.
d. 21 December 2005: A supplementary motion challenging the legality of the IST.
e. 1 February 2006: A preliminary motion requesting the disqualification of Chief Judge Abdel-Rahman on grounds of bias.
f. 20 February 2006: A supplementary motion requesting the disqualification of Chief Judge Abdel-Rahman on grounds of bias.
g. 15 March 2006: the seventeen point request, including respect for some basic human rights of fair trial.
Moreover, the IST has shown itself unwilling and/or unable to ensure the safety of defense counsel in spite of repeated requests to take action. Former Chief Judge Amin Rizgar had even agreed to take the matter into consideration by referring it to the President of the Tribunal. Nevertheless, no adequate action was taken despite the killing of three defense counsel.
On 15 June 2003, the United States created the CPA as an organization under the control of the United States Department of Defense. The CPA was headed by Mr. L. Paul Bremer; an American who held all ultimate sovereign (legislative and appointment) authority according to CPA Regulation No. 1. Between 15 June 2003 and 28 June 2004, the CPA promulgated twelve regulations, one hundred orders, and seventeen memoranda that allegedly “established a comprehensive legal system and answered most [legal] questions” despite a being an occupying power with an obligation not to substantially change Iraqi law.
On 13 July 2003 the CPA appointed twenty-five persons to an Iraq Governing Council (IGC) in accordance with CPA Regulation No. 6. While Mr. Ahmed Chalabi was presiding over the IGC in September 2003, he named his nephew Mr. Salem Chalabi, who was neither an expert in international criminal law nor Iraqi criminal law, to prepare a draft Statute for the Iraqi Special Tribunal.
Between September and December 2003, a Statute for the IST was drafted based on a March 2003 draft by DePaul University Law Professor Cherif Bassiouni. Professor Bassiouni had prepared a draft Statute for an international tribunal with provision for adequately qualified judges, prosecutors, and IST staff. All were to have experience and expertise in international criminal law.
The draft was instead used to create the IST as an Iraqi tribunal of the occupying powers. The United States choose the judges from among persons whose identities have never been officially made known and based on unknown criteria as to qualification. It does appear that these persons included a mix of United States and some Iraqi lawyers, who had been living abroad and who had advocated he overthrow of the government of President Saddam Hussein by violence as well as in some cases the execution of the President.
One of these individuals was Mr. Salem Chalabi, an avowed enemy of the President, who had for years advocated the violent overthrow of the government of Iraq. He bragged that he was personally selecting the staff of the IST. At the same time he refused to provide details either as to how the IST had been constituted or what were to be the qualifications of the prospective judges. As a consequence, very little is known about the qualifications of the judges. Even their names and identities have not been disclosed. What is known about the background and qualifications of the judges is based on speculation.
The comments and concerns of leading non-governmental organizations working in the field of human rights and international law were ignored. Human Rights Watch has described the process by which the IST was created as one whereby the United States
without establishing a transparent process to consult Iraqis or assess Iraqi attitudes towards issues of justice and accountability … [instead proffered a] … proposal for an “Iraqi Special Tribunal” emanated from individuals close to the CPA and the CPA-appointed Interim Governing Council (IGC). The process of drafting and revising the founding document of the Iraqi Special Tribunal lacked transparency. Numerous requests by Human Rights Watch and other human rights organizations and international experts to see and comment upon the draft law were rejected.
Eighteen months after the Statute’s public release by the US government, Amnesty International concluded after an extensive analysis that the “Statute of the Iraqi Special Tribunal currently in place is not consistent with international law.”
On 9 December 2003 the occupying powers led by the United States-controlled CPA issued CPA Order No. 48, which is the Tribunal’s enabling statute. The same day, CPA Administrator Mr. L. Paul Bremer temporarily ceded his exclusive legislative authority to the IGC in order to claim that Iraqis had adopted the Statute. The IGC, however, had been installed by the United States government when it occupied Iraq. Mr. Bremer then signed the Statute into law the next day as is stated in CPA Regulation No. 6. On 10 December 2003 the signed order was published in the CPA’s Official Gazette.
At the time of its promulgation, the controlling language of the Statute of the Iraqi IST was English—not Arabic. This is evidenced by CPA Regulation No. 1 that was first promulgated in English and signed by the American Administrator Paul L. Bremer, who does not understand Arabic. The official languages of Iraq, however, are Arabic and Kurdish, according to article 9 of the Law of Administration for the State of Iraq for the Transitional Period that was promulgated by the CPA on 8 March 2004. With this action, as Professor Cherif Bassouni points out, the IST now “became an official institution of the “occupying powers”.”
The IST was created while Iraq had no functioning government and was under foreign occupation. Moreover, as if to emphasize that the creation of the IST was the will of the occupier, the United States occupying power also promulgated CPA Order 17 giving complete immunity to American soldiers for their international crimes committed in Iraq just weeks later.
As an occupying power in Iraq the United States government “issued orders in the same way as it did during the post-World War II occupation of Germany and Japan. In Germany, these orders were issued by the Allied Control Council, while in Japan they were issued by the Supreme Allied Commander.” In Iraq these orders are called ‘CPA orders’.
The official language used by the IST is Arabic according to article 34 of its Statute, even though the Statute was first drafted in English.
The Statute of the IST provides for the punishment of the crimes of genocide (art. 11), crimes against humanity (art. 12), war crimes (art.13) and selected Iraqi criminal laws (art. 14) which have been adapted to prevent the prosecution of soldiers from the occupying powers.
Articles 1 and 2 of CPA Order No. 48 also declared that drafting of the Elements of Crimes and Rules of Procedures had to be approved by the CPA. Consequently different drafts of the Revised Rules of Procedure and Evidence have been circulated on the internet and it is not clear whether or not this instrument has entered into force even after the conclusion of the Dujail trial. It is also not clear which version is authoritative. Likewise, the draft ‘Elements of Crimes’ have not been officially circulated and it is not clear which version is operative. The resulting confusion makes it impossible for defense lawyers to prepare a defense or even challenge many of the actions or arguments of the prosecution or the IST that may be inconsistent with the rules or elements of crimes.
Since the beginning of the American-led invasion, Iraqis have fought against the occupying powers. On or around 13 December 2003, one of those Iraqis fighting the occupation, President Saddam Hussein, was captured in the vicinity of Tikrit, Iraq, under circumstances largely unknown. In any event, President Saddam Hussein was quickly transferred to the custody of the United States, in whose de facto custody he remains today.
The United States repeatedly stated that it is detaining the President as a prisoner of war. At the same time, it has failed to respect his human rights under international humanitarian law. These rights include those under the Third Geneva Convention that provides for the human rights to security of person, privacy, respect, humane treatment, and fair trial.
The United States violated these rights by several times permitting the release of embarrassing information, including pictures, to the media. This information has aimed at humiliating the President. The IST did nothing to respond to these actions.
According to article 3, the TAL is “the Supreme Law of the land and shall be binding in all parts of Iraq without exception” while “[a]ny legal provision that conflicts with this Law is null and void.” According to paragraph C of article 3, the TAL is to remain in effect until the “formation of an elected government pursuant to a permanent constitution” has taken place. Article 13 of the Permanent Constitution of the Republic of Iraq that was adopted on 15 October 2005 states that the Constitution is the “supreme law in Iraq and shall be binding in all parts of Iraq without exception” and that “[n]o law shall be enacted that contradicts this Constitution” and text “that contradicts is deemed void.”
On 30 June 2004, the occupying powers attempted to transfer authority to the IGC for acts that had been committed under the exclusive authority of the CPA. On 30 January 2005, the Iraqi elections were held as another attempt to transfer authority exercised by the CPA to the Iraqi Interim Government which was to serve until an Iraqi government could be elected under a permanent constitution. The elections where held with inadequate security and with candidates who were not to the liking of the United States government being prevented from standing for office.
At the hearing of 19 October 2005, President had still not consulted with counsel retained by his family, in spite of the latter’s numerous written requests for access. Defense counsel also complained at the opening of hearings that they had been denied the right to meet their client together with numerous other violations of their client’s human rights. They also complained about the legality of the IST and the lack of basic security for witnesses and lawyers.
At the hearing on 19 October 2005 defense counsel filed a motion indicating that notice of evidence and witnesses had not been provided to defense counsel in a timely manner. The defense also filed a motion calling for the proceedings to be suspended due to insecurity. Before this date defense counsel were not able to communicate with the IST despite numerous attempts.
On 26 November 2005, followers of Shiite cleric Muqtada al-Sadr, who controls a faction of at least thirty members of the Iraqi Parliament, called for the summary execution of President Saddam Hussein. On that same day, the Associated Press reported that “the leader of the biggest Shiite party, Abdul-Aziz al-Hakim, accused the IST of "weakness" for not having sentenced Hussein to death already” and that an attempt had been made on the life of another IST judge.
In contrast to the defense lawyers, the judges and the prosecutors are provided around the clock security, secure living and working quarters, and residence outside of Iraq. The defense lawyers are sometimes provided security when they travel in the Green Zone and sometime denied any security; they were promised money for three guards that was never paid; and they were repeatedly told that no adequate security would be provided with replies that incorrectly claim that security is being provided.
Nevertheless, despite the insecurity, the IST hearings continued on 27 and 28 November 2005 without the IST addressing the security concerns of the lawyers.
Around the same time, a judge of the IST reportedly “recused himself in late November because one of the co-defendants may have been involved in the execution of his brother. That judge was replaced.”
At the hearings on 7 and 8 December 2005 a preliminary motion challenging the legality of the IST and its failure to ensure respect for the defendants’ human rights was submitted to the IST by defense counsel.
At the hearing on 21 December 2005, the IST refused defense counsel the opportunity to make arguments challenging its legality.
Also on 21 December 2005 a supplementary motion again challenging the legality of the IST was submitted by defense counsel to the IST.
The same day, 21 December 2005, Dr. Curtis F.J. Doebbler, who possesses written powers of representation from the Iraqi President Saddam Hussein, again requested access to his client by presenting the documentation requested by the IST in both Arabic and English.
Captain Philip Lynch asked Dr. Doebbler to wait outside the courtroom and to speak to Judge Amin Rizgar when he arrived. When Amin Rizgar appeared, Dr. Doebbler greeted him and was immediately attacked by United States Marshall Bartlett, who physically assaulted Dr. Doebbler and threatened to “permanently remove him” if he came close again.
A few minutes later, United States military Captain Philip Lynch told Dr. Doebbler that the IST had approved his request, but that the decision had been “reversed by a Canadian judge named Howard Davidson,” an individual apparently acting as an advisor to the IST.
Dr. Doebbler was then told to return to a ‘safe-house’ were he was forced to remain under house arrest guarded by two Bulgarian guards who claimed to be working for the United States government.
On 22 December 2005, before the IST session began the IST provided defense counsel a two-page letter summarily asserting its own competence to try the defendants without providing a reasoned legal analysis on the issue and after denying defense counsel the right to make oral arguments on this issue. This statement did not address the violations of human rights or provide any substantive reasoning to support its decision.
Later, also on 22 December 2005 and in the courtroom, defense counsel again requested time to make oral argument on the question of legality and requested that the IST consider this issue as a preliminary issue. The IST refused this request without giving any reasons. The Chief Judge said the question had been decided. To date no reasoned decision has been provided to this or any of the other requests to the IST.
On 17 January 2006, defense counsel requested the permission of the United States authorities to visit their client. The United States officials stated that only five of the nine defense counsel requested by the President, were allowed to visit.
Other lawyers were told they first had to be admitted to by the IST, although some, such as Dr. Doebbler, could not be admitted because he was not allowed into the courtroom. At the same time Dr. Doebbler was told by United States’ and Canadian officials, who clamed to act on behalf of the IST, that only if he proffered his original papers to the IST in the courtroom could he be admitted.
On 18 January 2006, it was publicly reported that Special Tribunal Chief Judge Rizgar Amin had been pressured into resigning. This pressure had been exerted by Mr. Ali al-Adeeb, a senior Shiite official in Prime Minister Ibrahim al-Jaafari's party and member of the Interim legislature, who publicly declared that “[t]he Chief Judge should be changed and replaced by someone who is strict and courageous.”
After Judge Rizgar Amin resigned he was then pressured to rescind his resignation, according to “sources close to the Chief Judge” who told Reuters that the Chief Judge “…tendered his resignation to the court a few days ago, but the court rejected it … talks are under way to convince him to go back on his decision … He's under a lot of pressure, the whole court is under political pressure.”
The new Chief Judge of the IST was announced as Saeed al-Hammash, but he too was forced to step down because of pressure from Ali Faisal, the head of the de-Baathification Commission, a creation of the U.S.-led occupying powers meant to prevent individuals who supported the former government of Iraq from participating in public affairs in occupied Iraq. Judge Saeed al-Hammash stepped down sometime between 24 and 29 January 2006.
On 23 January 2006, while the lawyers were in Baghdad they were informed by United States military Captain Mr. Philip Lynch that there had been two car bombs were reported to have gone off very in the near vicinity of their lodgings and that numerous people had been killed. For this reason, one of the lawyers who required emergency medical care was forced to wait several hours before he could go to the hospital.
The same day, 24 January 2006, it was reported that a new judge, Raouf Rasheed Abdel-Rahman, was brought in by the occupying powers controlling the IST. This judge is from Halabja. This is one of the cities in which it is alleged that the President committed crimes against multiple victims. It can reasonably be assumed he is a relative or friend of some of the alleged victims. Moreover, as submitted below, this judge has displayed clear prejudice against the accused before he began his involvement in the trial.
While the lawyers were waiting for the hearing to begin on 24 January 2006, a clerk of the IST who identified himself as Mr. Riza Hasan attempted to return to the defense lawyers a lengthy written submission that had been made to the IST on 21 December 2005. He stated that the IST did “not want the arguments” and was refusing to rule on them.
At the courthouse, on 24 January 2006, defense counsel who had traveled from Sudan, Qatar, Bahrain, Jordan, Syria, and the United States were forced to wait in a room at the courthouse from which they neither could exit on their own free will nor communicate with the outside world. The defense lawyers were cut off from all outside contact despite the fact that this jeopardized the lives and well-being of their other clients who could not contact them. The IST did not communicate with the defense lawyers until 14:00 when a Captain in the United States military informed them that the hearing was cancelled in the wake of a declaration by Investigative Judge and Tribunal Spokesman, Raed Juhi, to the effect that “some of the witnesses had not yet returned from the HAJ. It should be noted that as of 24 January, 2006, the HAJ had ended ten full days earlier” (emphasis added).
On 26 January 2006, it was announced that Saeed al-Hammash was reinstalled as Chief Judge of the IST after the intervention of outside powers. In an interview with the Associated Press, one judge speaking for the IST declared that “[m]atters are not in our hands.”
The same day, 26 January 2006, it was also announced that Judge Rauf Rasheed Abdel-Rahman would indeed be the new Chief Judge despite the fact that he was born in Halabja and had allegedly been himself arrested and convicted under the regime of President Saddam Hussein for criminal offenses under the government headed by President Saddam Hussein.
Without consultation with the defense lawyers, the IST set the next hearing date for 29 January 2006. Several lawyers, including the most senior defense lawyer, had prior obligations before courts in their own countries on 29 January 2006.
On 29 January 2006, only four defense lawyers were thus able to travel to Iraq. The most senior lawyer could not attend the IST session. Other defense lawyers were deterred by the deteriorating security situation.
At this session Dr. Curtis Doebbler and Mr. Sahal Armouty were admitted to appear before the IST after their original papers, which they had submitted in open court, were reviewed. A written request for a transcript of the prior proceedings was also made, but received no response.
On 1 February 2006, defense counsel submitted challenges to the impartiality of the Chief Judge and the prosecutor by arguing that they were biased. Both had made comments indicating that the guilt of the President was a foregone conclusion. This preliminary motion specifically requested the disqualification of Chief Judge Abdel-Rahman based on information that was widely reported and in the public domain.
On 19 February 2006, these submissions were supplemented by additional representations that were drafted on 8 February 2006, but could not be submitted to the IST until 19 February 2006 because of the inability to communication with the IST. These supplemental submissions again requested the disqualification of Chief Judge Abdel-Rahman on grounds of bias citing his pre-trial statement that the President should be summarily executed. This submission is supported by the affidavit of a Jordanian lawyer, Mr. Ziyad al-Nasjdawi who had witnessed the statement.
On 28 February and 1 March 2006, the IST refused to deal with the submissions regarding the lack of impartiality and the bias of Judge Abdel-Rahman, stating that it would not decide them. The IST did not disclose that the request for the disqualification of Chief Judge Abdel-Rahman had already been decided by the IST on 20 February 2006 in a decision whereby the IST’s appellate body found that the motion should have been submitted before 19 October 2005, almost four months before Chief Judge Abdel-Rahman and thus a practical impossibility.
At the hearings on 12 and 13 March 2006, the IST stated that it had decided and rejected the motion for disqualification of Chief Judge Abdel-Rahman, but the IST refused to provide its decision in writing to the defense lawyers despite repeated requests.
The defense lawyers then requested a decision on their prior submissions concerning security, the illegality of the IST, and the conditions for a fair trial. Chief Judge Abdel-Rahman refused to consider this request or allow arguments to be presented. Instead he ordered one of the colleagues of the President and one defense lawyer from the courtroom for insisting that the IST at least implement previous oral decisions.
On 7 February 2006, chief Prosecutor Jaafar Al Mussawi told AFP and the Middle East Times that the lawyers of President Saddam Hussein “have no right to see the defendants.”
On 10 February 2006, Kurdish Media reported that another judge of the IST, 60-year-old Ali Hussein al-Shimmiri had died on 9 February 2006. With this death four out of the five judges who were on the original IST panel were now removed.
On February 13 and 14, Chief Judge Abdel-Rahman presided over hearings of the IST where defendants had no counsel of their own choosing present to assist on their behalf. Moreover, evidence was read into the record on the basis of affidavits and without notice to defense counsel allowing them a reasonable opportunity to challenge the evidence.
On 28 February 2006, Judge Abdel-Rahman refused to respond to defense counsel’s motions for his disqualification for bias and his inability to ensure basic human rights for defendants. Instead, further evidence was read into the record on the basis of affidavits of which defense counsel had no adequate prior notice, and therefore no opportunity to meaningfully question the witnesses allegedly making claims against their integrity and of criminal wrongdoing.
Between 29 January and 26 February defense counsel were denied access to their client despite repeated requests.
Only on 26 February 2006 was Mr. Kaleel al-Dolami allowed to meet with President Saddam Hussein after an oral assurance that such meeting could take place which was communicated from the United States authorities by United States military Captain Michael McCoy in an email dated 22 March 2006.
No other defense lawyer traveled to this meeting because of the short notice and uncertainty about whether the IST would allow the lawyers to meet with their client. In his email of 20 February 2006, Captain Michael McCoy had informed defense counsel that meetings had to be arranged solely through the IST. The IST finally issued a reply on 8 March 2006, well after the meeting was scheduled to take place.
On 28 February 2006, Chief Judge Abdel-Rahman held another session of the IST. Again defense counsel insisted on a written decision on the motion for disqualification. The IST refused to give a decision thereby forcing defense counsel to withdraw out of fear of prejudicing their client’s rights. The Chief Judge continued the proceedings without defense counsel present after appointing new lawyers.
On 1 March 2006 only Mr. Khamis el-Obedi appeared for the defense. Nevertheless the IST denied all motions requesting a short delay. At the end of proceedings the trial was adjourned until 12 March 2006.
On 7 March 2006 the IST wrote to defense counsel informing them that five lawyers were entitled to meet with the President and enter the courtroom. Dr. Doebbler and Mr. Armouty were not among the five, although they had been previously admitted by the IST and allowed to attend meeting with President Saddam Hussein. Both Dr. Doebbler and Mr. Armouty possessed powers of attorney from the President and had previously been approved by the IST. No reason was give for the apparent decision to exclude them.
On 8 March 2006, subsequent to an enquiry from the defense lawyers, the IST stated in an email to Dr. Doebbler, in apparent contradiction with the event of 29 January 2006, that Dr. Doebbler was “not admitted to practice before the IHT. The IST never accepted any paperwork from you on January 29, 2006 and has not recognized your right to represent Saddam Hussein or any other defendant.” Dr. Doebbler is expert on international human rights law expert on the legal team.
On Monday and Tuesday, 12 and 13 March 2006, additional hearings were held in which some defense counsel were prevented from attending the hearings.
On 15 March 2006, the defense lawyers submitted to the IST in writing a 17-point request. The first point requested equality of arms between the parties. Among other points, the motion also requested the IST’s prompt attention to the following: the defense request for a written response to their earlier submissions (points 2, 4 and 5); the defense request for timely notice and copies of all evidence submitted to the IST and all exculpating evidence in the possession of the prosecution (points 8, 11, 12, and 13); the defense request for timely notice of hearings (point 9); for transcripts (points 10 and 12); the defense request for private and confidential meetings with President (point 15); and the defense request for adequate time and facilities to prepare a defense (points 16 and 17). The IST accepted the filing but once again refused to rule on them to date despite the fact that some of them clearly go the very legitimacy of the proceedings.
On 3 April 2006, defense lawyers were granted another meeting with their clients. Like all previous meetings this one was not confidential. This time, Iraqi translators joined American soldiers in interfering with the meeting’s confidentiality. Moreover, before some lawyers were allowed to enter the meeting, their private papers were searched and read despite their objections that such searches violated their lawyer-client privilege. Additionally, even legal papers already submitted to the IST had to be read by United States authorities before they could be provided to President Saddam Hussein.
On 4 April 2006, although a request had been made 24 hours in advance as required by the US occupying powers in charge of monitoring the movements of the lawyers in Iraq and without prior notice, cancelled meetings that defense counsel had indicated were extremely important to their defense. These meetings were with a potential witness and senior United Nations personnel. One of the witnesses with whom a meeting was to take place was killed shortly thereafter. This witness would have been exposed to both American and Iraqi officials who are frequently at the meeting site, the Al-Rasheed Hotel, and the checkpoints that were required to pass to get to the meeting site.
On 5 April 2006 a meeting took place with IST officials who announced that the review of the authenticity of documents and signatures would be conducted by a person who worked for the Ministry of Interior. Objections by defense counsel claiming that the review should be done by an impartial expert were ignored.
At the hearing, defense counsel again repeated in writing their requests for written responses from the IST to their motions and they again asked for adequate time and facilities to prepare a defense. Defense counsel also asked to see some original defense documents together with their clients. While the IST apparently granted the last request in part, the Americans indicated to defense counsel that only the lawyers and not their clients could view the documents. In addition at the hearing at which only President Saddam Hussein was present, Judge Abdel-Rahman admitted receiving at least six motions, but he again refused to rule on them claming that he had no time to do so.
Also at the hearing on 5 April 2006, Judge Abdel-Rahman also ordered the only female defense counsel, Mrs. Bushra al-Kalili, forcibly removed from the courtroom by four male guards. The removal was the result of Mrs. Bushra al-Kalili’s failing to respond to the judge’s order to “sit down and shut up.” Defense lawyer Mrs. Bushra al-Kalili had argued that prejudicial evidence presented by the prosecution without prior notice to defense should be ruled inadmissible. The prosecution had introduced a video tape without a date and where several sources had been combined in a collage from Al-Arabya, a television station created by the US occupying forces with a publicly acknowledged goal of providing propaganda against supporters of the former Iraqi government. As defense lawyer Mrs. Bushra Kalili demonstrated the harmful consequence of allowing any evidence into the trial, Judge Abdel-Rahman became extremely irate and ordered bailiffs to remove her using force. Such treatment of a respected female lawyer is not only prejudicial to the President’s rights, but such action is also far removed from Arab and Islamic the values.
On 12 April 2006, the IST again reconvened without any defendants present. In addition because the defense lawyers had been given only four days notice of the session, the most experienced defense lawyers were prevented from attending. The hearing was ultimately adjourned after ten minutes with the Chief Judge claiming that the IST was not ready to hold the hearing because handwriting experts had failed to appear.
At the 15 April 2006 hearing the President claimed that Ministry of Interior officials were killing and torturing Iraqis. The President attempted to illustrate how such summary killings created a ‘chilling effect’ for all other witnesses. The IST not only failed to call for an investigation into the allegations of obstruction of justice, it also told the President that such allegations should not be raised before the IST.
On 17 April 2006, amid increasing violence, the hearings resumed. At the hearing the Prosecution introduced a report by alleged experts who worked in the Iraqi Ministry of Interior. The report claimed that all the signatures and documents presented by the Prosecution were authentic.
In April 2006, it was also confirmed that Mr. William Wiley, who had worked for the United Nations from approximately mid-2005 to early 2006, had gone to work for the United States government’s Regime Crimes Liaison Office, which is the office that defense counsel and observers have accused of controlling the IST. For months, Mr. Wiley had used his United Nations position to gain confidential information from defense counsel and had represented to defense counsel that they could trust him with their confidential information.
On 12 June 2006, the IST read out allegations against the defense lawyers that had been made by defense witnesses who had been beaten, arrested and held without access to counsel of their choice. These allegations were read in front of the lawyers’ clients and in a public session of the IST trying these clients. The statements alleged that the defense witnesses had been bribed by the defense lawyers. The IST did not bring the defense witnesses into courtroom, although they had been in custody during the last IST session. The IST did not provide defense counsel printed copies of the allegations or the right to respond to them. And later—through a person who claimed to be an officer of the IST—defense lawyers were threatened with arrest if they challenged the allegations before the IST the next day.
On 13 June 2006, when the defense lawyers raised arguments concerning international human rights law, Chief Judge Abdel-Rahman repeatedly interrupted them with irrelevant criticisms, such as concerns their choice of attire, and then cut off their arguments. When the defense lawyers raised the issue of serious and widespread human rights violations of the right to fair trial, the Chief Judge said these arguments “are irrelevant” and that “the court should not be lectured to about these rights.”
At the hearing, despite having agreed to hear more defense witnesses and after receiving a written note passed to him from American officials outside the courtroom, Chief Judge Abdel-Rahman suddenly the defense case closed and ordered both parties to make their closing statements. The Chief Judge stated that “You’ve presented twenty-six witnesses. If that is not enough to present your case, then 100 won’t work.” In fact, the defense had presented less than 20 witnesses, while the prosecution had presented more fifty.
The Chief Judge then set down 19 June 2006 for the prosecution’s closing statement—eight months after the prosecution began its case—and 10 July 2006 for the defense—less than two months after the defense lawyers had received the formal charges and were forced to start presenting a defense without any time to prepare it.
After the hearing on 13 June 2006 an American escorting the lawyers to the Al-Rasheed hotel for meetings told the lawyers that the courthouse had been hit by rockets and was on fire.
On 19 June 2006, the Prosecutor made a final argument restating the allegations against the defendants, but failing to consider with the alleged perjury by prosecution witnesses, the allegation that persons who had been claimed killed were still alive, and the allegations that attempts were made to bribe defense witnesses. The judge ordered the defense counsel to present their closing argument on 10 July 2006.
Two days later, on 21 June 2006, a third defense lawyer, Mr. Khamis Obedi, was killed. The defense lawyers again pointed out that they lacked adequate security and that the killing of three defense lawyers proves this. The United States officials responded stating that they were already providing adequate security and could not improve upon it. Consequently the defense lawyers stated that they could not appear before the IST until better security was provided.
On 10, 11, 24, 26 and 27 July 2006, the IST convened despite the defense lawyers’ objections and no further action to improve security. The IST appointed defense lawyers over the express objections of the defendants and their chosen defense lawyers. The IST also required some defendants to attend some of the hearings by force.
These hearing were mainly devoted to the statements of the IST-appointed lawyers. The IST-appointed lawyers read out statements that were prepared, according to one of the lawyers, by an advisor to the IST named Mr. William Wiley. The defense counsel chosen by defendants had earlier complained to the IST about Mr. Wiley’s interference in the case and had asked the IST to issue an injunction against his contacting defense witnesses or any person connected to the defense. All the defense counsel had signed this submission that was made to the IST on 13 July 2006. In keeping with the practice that had been consistent through out the proceedings, no transcript or copy of the statements made by the IST-appointed lawyers was ever provide to the defense counsel or their clients.
Instead, of correcting the litany of mistakes that it has made, the IST continues to perpetuate and compound its mistakes.
The Failure to Fix the Problems
More than two years after his initial detention and after legal proceedings have begun and the prosecution has presented its case, President Saddam Hussein was still not able to have a single private and confidential meeting with his legal counsel that provides him the opportunity to begin to be able to prepare his defense.
There has also been no written and reasoned decision by the IST on any of the motions submitted by defense counsel, namely:
h. 19 October 2005: A motion indicating that notice of evidence and witnesses was not provided to defense counsel in a timely manner.
i. 19 October 2005: A motion calling for the proceedings to be suspended due to insecurity.
j. 8 December 2005: A preliminary motion challenging the legality of the IST and its failure to ensure respect for human rights.
k. 21 December 2005: A supplementary motion challenging the legality of the IST.
l. 1 February 2006: A preliminary motion requesting the disqualification of Chief Judge Abdel-Rahman on grounds of bias.
m. 20 February 2006: A supplementary motion requesting the disqualification of Chief Judge Abdel-Rahman on grounds of bias.
n. 15 March 2006: the seventeen point request, including respect for some basic human rights of fair trial.
o. 13 June 2006: a request to prevent Mr. William Wiley who alleged to work for the IST from interfering with defense witnesses and from contact with defense lawyers who he was threatening.
Moreover, the IST has shown that it cannot even ensure the safety of defense counsel by failing to address numerous requests for security, despite one of its own Judge’s commitment to remedying the problems.
Instead, the IST continues to make matters worse for itself. It continues to desecrate the rule of law and the Arab and Islamic principles of Iraq by pushing forward with a clearly unfair and unjust trial. This unfair trial has already caused further divisiveness in Iraq contributing to the instability created by the state of war.
Even before the trial began in October 2005, defense counsel and other prominent observers warned about the lack of security for such a trial.
For example, on 19 September 2005, in a letter to the United Nations Secretary-General, Mr. Kofi Annan, Mr. Ahmed Ben Bella, former President of Algeria; Tun Dr. Mohammed Mahathir, former Prime Minister of Malaysia, Mr. Roland Dumas, former Minister of Foreign Affairs of France, and Mr. Ramsey Clark, former Attorney-General of the United States, publicly expressed their concern for the safety of all participants in the trial. Annex E. In this letter these four prominent statesmen drew attention to the atmosphere of violence in which the United States and Iraqi authorities were considering conducting a trial.
The lawyers themselves also provide the IST with detailed requests for security. For example, on 28 November 2005, Mr. Ramsey Clark presented these requests both in writing and in oral argument to the judges of the IST. Annex D. And on 26 January 2006 Mr. Kaleel al-Dolami repeated these requests in writing, but was denied the opportunity to make oral argument to the judges of the IST. Annex F. These requests for adequate security were always either denied or ignored.
Unfortunately, the fears of these prominent statesmen were proven well- founded when on 20 October 2005, just one day after the first hearing, defense lawyer Mr. Sadoon al-Janabi was gunned down by individuals claiming to be from the Iraqi Interim Ministry of Interior. The next day, 21 October 2005, eyewitnesses told Al Arabiya TV that “Mr. Janabi’s abductors, dressed in suits and ties, identified themselves as officials of the Interior Ministry” and on 22 October the New York Times reported that eyewitnesses identified the men abducting the victim as claiming to be from the Iraqi interim administration’s Ministry of Interior. This killing was never been investigated by the Iraqi or United States authorities, and, despite renewed request for the security by defense counsel, no adequate security was put in place for the remaining lawyers.
No adequate security measures were put in place after this killing and the IST deferred any response to requests made by the defense lawyers for adequate security arrangements to be made.
On 8 November 2005, another defense lawyer, Mr. Adil Mohammad Abbas al-Zubeidi, was killed and a colleague seriously injured, again with alleged involvement of the Iraqi interim government and the occupying United States forces, according to independent news reports. These allegations of Iraqi government involvement in the assassination of private individuals have been repeatedly reported by the media in Iraq.
The defense lawyers again pleaded for adequate security to be provided. In addition the United Nations Secretary-General Mr. Kofi Annan issued a public statement condemning the killings and stating that “it is vitally important that the security of all involved with the Tribunal should be equally assured to ensure a trial free from intimidation and coercion … [and that the Secretary-General] … hopes that the Tribunal will uphold the international standards of justice necessary to ensure its legitimacy, fairness and independence.” No adequate action was taken by either the Iraqi or United States authorities.
On 28 November 2005, when proceedings resumed despite not adequate security arrangements having been made, another request for security was submitted to the IST and the United States authorities. This time Mr. Ramsey Clark, on behalf of the defense counsel, made an oral plea in the courtroom and submitted a written request seeking specific measures of security for defense counsel. (See annex D) The Chief Judge asked that oral argument be held “later”.
On Monday, 5 December 2005, the IST proceeded without the defense counsel present because no steps had been taken to provide adequate security. The IST had also refused to allow the defense counsel to address the preliminary issues of lack of security and the illegality of the IST. Chief Judge Rizgar Amin appointed defense lawyers who had been waiting outside the courtroom and without any preparation and over the express protests of President Saddam Hussein the lawyers entered the courtroom. The IST-appointed lawyers made no challenges to any prosecution witness.
On Tuesday, 6 December 2005, the IST proceeded with more witnesses and again denied defense lawyers request to make preliminary arguments on issue of security and legality.
On Wednesday, 7 December 2005, the IST proceeded with more witnesses and again denied defense lawyers request to make preliminary arguments on issue of security and legality. Protesting the unfairness of the IST he defendants refused to be present. After the public hearing was adjourned defense lawyer Mr. Ramsey Clark was allowed to make a 10 minute oral argument in which he reiterated the call for security to be provided to all participants in the trial. He also provided this request in writing in Arabic and English to the IST. Defense lawyer Mr. Najeeb al-Nuaimi was also allowed to make a 15 minute oral argument on the issue of legality.
On 8 December 2005, Chief Judge Rizgar Amin orally indicated to the defense lawyers that he agreed with their security concerns and had referred the request to the President of the IST for action. No adequate action was ever taken.
During the early December 2005 hearings the prosecution’s lead witness testified that no attack had taken place against President Saddam Hussein in Dujail in 1982. This statement is later proven to have contradicted an earlier statement by the same witness and to have shown that this witnesses’ testimony is not credible. Furthermore, none of the witnesses directly implicated President Saddam Hussein in any alleged criminal acts, but instead described vaguely treatment they had received at the hands of individual security agents. And in addition most of the witnesses were anonymous and nothing was known about their identity or background by the defense lawyers.
In a letter dated 20 December 2005, the same Chief Judge of the IST indicated that “[t]he Court agrees with the defense point of view about the importance of providing security” (IST Doc. Ref. 1/2005). Again no adequate action was ever taken.
The United States and the Iraqi authorities failed to take any adequate security measure to protect the defense lawyers, especially the Iraqi lawyers. Instead, of providing the security measures requested by defense counsel, the United States authorities agreed to pay for two guards for each defense lawyer. This money was never paid to defense lawyers, as was admitted by Mr. William Wiley in a meeting with defense counsel on behalf of the IST in Amman, Jordan on 7 May 2006. In this meeting Mr. Wiley admitted that the money was not paid and said he would look into the matter. Even if this de minimus security arrangement had been provided it would not have been adequate to protect the lawyers from attacks that were carried out by heavily armed perpetrators who claimed to be government authorities and who acted with impunity and perhaps in concert with both Iraqi and United States authorities.
On 21 June 2006, a third defense lawyer, Mr. Khamis al-Obedi, was killed, again under circumstances in which both Iraqi and United States authorities appeared to be involved. The attackers, who abducted the defense attorney, identified themselves as being form the Iraqi Ministry of Interior, and they both arrived at the lawyer’s home as well as fled without being pursued by United States authorities that were in the nearby vicinity.
A United States government spokesperson said that they noted that “the Iraqi Government and the international community offer every form of protection and assistance to those involved in the trial … [and that] … unfortunately in this case and this individual, he refused those protections and refused those offers.” This is statement was untrue and the United States government knew it to be untrue. Indeed, the New York Times had already reported months earlier that the defense lawyers had repeatedly sought adequate security and that “Mr. Obeidi had been one of the most vocal members of Mr. Hussein's team in calling for better security or for the boycotting of the trial after the assassinations of two other defense lawyers in October and November last year.”
On 27 June 2006, Mr. Ramsey Clark and Dr. Curtis Doebbler, two of the surviving lawyers on the defense team provided public documentary evidence of the requests made by Mr. Obeidi and the other defense lawyers for adequate security dating back to November 2005 at a press conference at the National Press Club in Washington D.C. in the United States. These two lawyers also indicated that despite the IST’s agreement with these requests, these requests had never been honored.
Even as the defense lawyers are trying to prepare final arguments after the defense case was stopped by the chief judge, threats continue against the lawyers. The Iraqi government has threatened the lawyers by claiming to pursue family members of the President for arrest. The timing of this unfounded action by the Iraqi authorities was clearly intended as further attempt to intimidate the lawyers and prevent the defense from being able to proceed.
Furthermore, in public on 27 July 2006, Chief Judge Abdel-Rahman falsely accused the defense lawyers of taking large sums of money from their clients and of not representing their clients. He did this despite knowing that the defense lawyers have worked pro bono and have constantly complained that they have no money or other resources available to them to enable them to adequately prepare a defense.
There has been constant and extensive interference in the investigative process by members of the Iraqi executive branch of government and by the foreign occupying powers.
The United States has interfered by providing the prosecuting office more than two hundred thousand dollars of support, plus logistic support and constant encouragement to push the trial forward as fast as possible without due respect for the human rights of the accused to a fair trial. There are also countless American lawyers working for the prosecution, but not identified to the defense lawyers.
No exculpatory evidence was shared with defense counsel before or during the proceedings before the IST. Even the proceedings concerning Dujail court in 1982, which were central to the alleged charges relating to events in Dujail, were never provided the defense lawyers despite the admissions that they existed.
United States President George W. Bush, Iraqi President Jalal Talabani, the Chief Prosecutor of the IST, and, allegedly, the Chief Judge before the trial have all said that the death penalty will or should be implemented. Other officials spoke out stating their desired out in favor of their desired outcome of a guilty verdict and/or an execution. Examples of the numerous public statements are recounted in the next section on the lack of independence of the IST.
On 20 June 2004, Mr. Salem Chalabi, the first director of the IST, sum up the proceedings before the IST as nothing more than a “show trial” which would end in the execution of the President.
Notwithstanding these public statements, the President was not formally charged for almost two years while he remained in detention not allowed legal representation of their own choosing, not allowed or able to approach a court of law to determine the legality of their arrest, and not allowed adequate facilities to prepare a defense.
During this time he was repeatedly interrogated without a lawyers present and in a manner which he constituted torture. Allegations of torture were made in the courtroom before the IST, but never investigated.
On 1 July 2004, the President was forced to appear before an investigative judge in a spectacle that was televised around the world. The President had not seen his lawyers and had no lawyer with him. He was not provided detailed charges but subjected to vague allegations by a junior judge. The process was clearly intended as an attempt to humiliate him. Nevertheless, the President maintained his composure and objected the hearing and the IST as illegal. He also asked to see his lawyers, as request that was not granted for almost another six months.
Between 1 July 2004 and 19 October 2005, the President repeatedly appeared before investigative judges with no prior notice and without a lawyer. Some of these judges even bragged falsely that the President had confessed.
Every court or tribunal must be created in accordance with pre-existing law. The violations of this obligation have been established above in the section on the illegality of the IST. Nevertheless, it is relevant to reiterate that when a court is not created in accordance with pre-existing law it is incompetent and illegal.
The IST was not created in accordance with law. It was created in violation of international law and Iraqi law to serve the interests of the occupying powers.
When the United States invaded and occupied Iraq in March 2003 is dissolved the regular courts and created new courts including special courts such as the IST. The IST was created by Order No. 48 which contained its Statute. Order No. 48 was signed into law by CPA Administrator L. Paul Bremer acting for the occupying power on 10 December 2003.
Iraq already had courts existing under Iraqi law. Iraqi Law No. 160 on Judicial Organization established the basis for the creation and functioning of the courts. This law must have remained in force throughout the occupation as this is required by article 64 of the Fourth Geneva Convention, which unequivocally states that “penal laws of the occupied territory shall remain in force … [and] … the tribunals of the occupied territory shall continue to function in respect of all offenses covered by the said laws.” The existing laws were ignored when the IST was established in late 2003
The IST was thus created outside the established Iraqi legal system. Although an attempt was made to ratify it ex post facto by the TAL adopted on 8 March 2004, this instrument was created and adopted while Iraq was under occupation. This is recognized by U.N. Security Council Resolution 1511 that recognizes both the TAL and the fact that Iraq is an occupied country.
Another attempt was made to re-create the IST with minor adaptations in August 2005 by Iraqi Law No. 10, which was promulgated by the United States chosen Iraqi Council in October 2005 just a week before the start of the proceedings concerning Dujail. At the time that the proceedings began the defense could not even obtain a copy of the new version of the Statue of the IST.
The exceptional nature of the IST is also recognized in the manner in which it was referred to in the originally authoritative English language text; as the “Iraqi Special Tribunal” (see article 1 of the old Statute). The new statute also refers to the “Iraqi Higher Criminal Court” as a “specialized” court (see article 1 of the new Statute). Both the Transitional Law of 8 March 2004 and the later adopted Constitution recognize the exceptional nature of the IST by attempting to make special provisions for its existence despite articles in both instruments that prohibit special courts.
Article 48 of the TAL—which in contradiction to articles 3, 12, 15(I) and 43 of the same law—states that the IST is a ‘special’ tribunal. Article 15(I) of the TAL unequivocally states that “special or exceptional courts may not be established.” This provision is expressly violated by the establishment and continued functioning of the IST. The more recently adopted Constitution article 130 also contradicts article 92 in the same way just described.
The violation of the prohibition of special courts cannot be remedied by reference to an exceptional article authorizing the special courts that is promulgated after the courts have been created. The violation of this prohibition, which exists under general customary international law, has already occurred.
In Iraqi law, this has been expressed as the principle of legality and in international human rights law as the principle of due process, which is well-established in human rights treaties including article 14(1) of the International Covenant of Civil and Political Rights as well as article XXVI of the American Declaration of the Rights and Duties of Man, article 7 of the European Convention on Human Rights, article 9 of the American Convention on Human Rights, and article 7 of the African Convention on Human Rights.
Article 14 of the International Covenant of Civil and Political Rights requires that courts be established by preexisting law. This provision is intended to ensure that courts are not established to adjudicate specific cases based on political or other biases.
This article is further explained by Principle 5 of the Basic Principles on the Independence of the Judiciary which states that:
[e]veryone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
Principle 5 has, as such, been interpreted as expressly prohibiting the use of special tribunals. The United Nations Working Group has stated that “one of the most serious causes of arbitrary detention is the existence of special tribunals.” Annex A. The Inter-American Court has stated that it is violation of human rights when states use “[t]ribunals that do not use the duly established procedures of the legal process […] to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.”
In this case there can be no doubt the IST was created in violation of international law and Iraqi law. It flawed creation also contributes to its lack of independence.
The Lack of Independence
The independence of the judiciary is essential to any democratic state respecting the rule of law.
In 2004, the American-appointed Ahmed Chalabi appointed his relative Salem Chalabi as the first Chief Administrative judge. Salem Chalabi is a United States educated nephew of Ahmad Chalabi, a long time exile from Iraq, an individual who has proudly acknowledged close ties to the U.S. government, its Defense Department, other agencies and individual leaders, and an avowed enemy of President Saddam Hussein.
A few months later, Salem Chalabi was removed from the IST by Iyad Allawi, a “favorite of the CIA,” after his appointment by the United States as an interim Prime Minister, and the selection of Amir Bakri, a member of Allawi’s own party.
Amir Bakri then dismissed Judge Naim al-Egaili, the President of the IST, in what was branded as a wrestling of ‘political control’ from Chalabi’s faction to that headed by Allawi.
A further attempt to change the IST was forced through the Iraqi assembly in August 2005. This attempt was to revise the whole statute, not by improving its substance, but by repeating its mistakes and shortcomings with the stamp of the Iraqi Governing Council (IGC). The IGC, however, was a creation of the occupying powers and merely acting on their behalf. It was certainly not an independent body. In any event, the new IST Statute was not published until 11 October 2005, just eight days before the first hearings began.
Despite the binding nature of the universal requirement of fair trial there have been repeated acknowledgments by persons involved in this trial—from person in the Iraqi government as well as in the United States government that is occupying Iraq—indicating that the IST is not independent.
Statements made by officials of the IST, officials of the executive branch installed by the occupying power, as well as the occupying powers, indicate that the IST is subject to the control of both the occupying power as well as the executive branch it has installed. Members of Iraq’s executive and legislative branches have repeatedly exerted pressure on the IST.
In January 2006, IST Chief Judge Rizgar Amin was forced to resign by external pressure from those such Ali al-Adeeb, a senior Shiite official in Prime Minister Ibrahim al-Jaafari's party and member of the Interim legislature, who declared that “[t]he Chief Judge should be changed and replaced by someone who is strict and courageous." After Judge Rizgar Amin resigned he was then pressured to rescind his resignation, according to “sources close to the Chief Judge” who told Reuters that the Chief Judge “…tendered his resignation to the court a few days ago, but the court rejected it. Now talks are under way to convince him to go back on his decision … He's under a lot of pressure, the whole court is under political pressure.”
Immediately after the new after Judge Saeed Al-Hameesh was publicly nominated to replace Judge Amin Rizgar, pressure was asserted by Mr. Ali Faisal, the head of the United States-created de-Baathification Commission, to force his resignation. These overt public acts of interference in the make-up of the IST on overtly political grounds and by political actors are strong evidence of both the apparent and de facto lack of independence of the IST.
The above actions are all executive interferences in the functioning of the IST.
This pressure has ranged from statements assuming guilt even before a trial begins to conclusions about what sentences should be passed.
Iraqi Interim President Jalal Talibani stated on 5 October 2005, before any trial had commenced, to Radio Free Europe that the President "is a war criminal. He committed crimes against the Iraqi people, against our neighbours, against Iranians, against Kuwaitis. For that I think he will deserve to be presented to the court as a war criminal" and that the President should be executed twenty times.
On 19 January 2006, United States George W. Bush was quoted as saying that the trial was on track and that he was sure that the President would be executed at the end.
More recently on 6 July 2006 the Arab Times reported Iraqi Prime Minister Nouri Al-Maliki said that “[t]he trial of the deposed Iraqi President Saddam Hussein would not take long and his execution for crimes against humanity would come soon after the court’s verdict … if President Jalal Talabani refused to sign the death sentence, a presidential council would carry out the mission.”
Also before any trial commenced, American television outlet CNN reported that President Talabani “had spoken to one of the Iraqi Special Tribunal judges involved in the investigation who had said that “he was able to take important confessions from Saddam Hussein and he has signed these confessions and there is video and audio for these confessions.”
The leader of Iraq's most powerful Shiite political party, Abdul Aziz Hakim, also declared that the Iraqi Interim government “wants to see Saddam dead, it wants him to face the death penalty, because that is the will of the people” just days after the trial began.
On 26 November 2005, followers of Shiite cleric Muqtada al-Sadr, who controls a fraction of at least thirty members of the Iraqi Parliament that had been created under the United States-led occupation, demonstrated in Baghdad calling for the summary execution of President Saddam Hussein. And he has said that "I call for the execution of Saddam … [he] should not [even] be tried." On that same day, the Associated Press reported that “the leader of the biggest Shiite party, Abdul-Aziz al-Hakim, accused the IST of "weakness" for not having sentenced Hussein to death already” and that an attempt had been made on the life of one of the judges.
Ali Dabagh, a Shi'ite member of the Transitional National Assembly appeared to acknowledge interference with the functioning of the IST when he declared that “[t]he judge is giving too much leeway to Saddam. He should respect the Iraqis and the victims' feelings.”
And Hoshyar Zebari, the Iraqi Foreign Minister, pressured the IST to act more quickly declaring derogatorily that "[t]here are Baathist thugs in the country who still believe Saddam is coming back. I believe that if he had been tried before we would have better control of security now.”
Statements indicating interference have also been directed towards possible penalties that the IST could impose before any judgment has even been pronounced.
Iraqi Interim Prime Minister, Ibrahim Al-Jafari pressured the IST to impose the death penalty when he surmised that finding persons twilling to carry out the execution was “not a problem, many people already volunteered. Many people would love to do the job. This is a man who does not deserve any mercy."
Political leaders have made repeated statements interfering with the independence of the IST.
In October 2005, a senior American advisor to the IST who has worked for the United States Department in the past has stated that “[t]he United States will be involved in the trial but from behind the scenes, more like a puppet master role. In fact, the tribunal statute requires that both the judges and the prosecutors receive assistance from U.S. authorities.”
This was confirmed by the statement of Ridha Jwad Taqi, head of the political office of SCIRI, another Shi'ite party in the government who declared that "[t]he Americans have attempted to Americanize the IST so it appeals to their public…”
The investigative judges, sitting judges, and prosecutors of the IST are named by the Iraqi Governing Council (IGC), a temporary executive authority that itself is created by the occupying powers.
Although a Judicial Council has been established, it does not have power to remove the judges. The judicial appointments were instead made by the Iraqi Prime Minister a member of the executive branch of government. The IGC no longer exists. It has been disbanded in January 2005. As a consequence, no legitimate entity which existed under Iraqi law remains in order to name judges to the Iraqi IST.
Moreover, during the existence of the IGC, judges were named by the Prime Minister in consultation with unknown individuals. The secretiveness of the process under a military occupation that is being unyieldingly resisted by patriotic Iraqis, alone raises serious doubts about the appointment of independent judges.
The process by which the IST judges are selected is in direct contradiction with the United Nations’ Principles on the Independence of the Judiciary. The Principles unequivocally advise against the nomination of judicial authorities by political authorities. Article 6(b) of the old Statute of the IST also requires the President of the IST “to appoint non-Iraqi nationals to act in advisory capacities or as observers to the Trial Chambers.”
The article further states that the role of these observers is to “provide assistance to the judges” and to “monitor” the functioning of the IST. Other articles also call for observation of the IST’s functioning by foreign observers. Such functions are prima facie violation of judicial independence in that they impinge upon the independent decision making prerogatives of the IST by subjecting the latter's internal deliberations to the scrutiny of observers beholden to the occupying power.
The independent functioning of the IST is further impugned by the fact that no standards of professional qualification are established for prosecutors, although such standards are required by Iraqi law. These actions severally and jointly violate the requirement of judicial independence and deprive the IST of its legality.
Evidence of the lack of independence in practice has been provided by the manner in which the IST makes decisions. At the hearing on 28 November 2005, the IST agreed that defense counsel should be given at least three months to meet with their clients and begin to prepare their defense cases. After consultations in which American military personal and other foreigners who were apparently advisors to the IST met with IST officials the decision was reversed and the time significantly limited. Again on 13 June 2006 after having agreed to allow more defense witnesses, the Chief Judge suddenly changed his mind in the courtroom after receiving a note passed to him by Americans outside the courtroom. Finally, an another example of the United States control of the proceedings was the 21 December 2005, denial of the right to enter the courtroom to Dr. Curtis F.J. Doebbler, who possess three powers of representation from the Iraqi President Saddam Hussein. According to US military Captain Philip Lynch this documentation was accepted by the IST, but the decision was reversed by Canadian judge Howard Davidson, who apparently acts as an advisor to the IST. These clear examples of United States control of the proceedings call into serious question the independent functioning of the IST.
The requirement of independence of the judiciary is has been confirmed by numerous states in their domestic constitutions as well as in numerous international instruments, particularly article 14 of the International Covenant of Civil and Political Rights and article 10 of the Universal Declaration of Human Rights, which reflects a rule of customary international law. It is also found in articles 8(1) and 27(2) of the American Convention on Human Rights, article XXVI of the American Declaration on the Rights and Duties of Man that reflects customary international law, article 6(1) of the European Convention on Human Rights, and articles 7(1) and 26 of the African Charter of Human and Peoples’ Rights. It “is an absolute right that may suffer no exception.”
This right is violated when the independence of judges are repeatedly interfered with by Iraqi and foreign authorities as has been the case with the judges of the IST.
The Lack of Impartiality
Impartiality is an essential condition of the right to fair trial that requires that judges carry their judicial duties free from any bias. Judges must be impartial in fact as well as appear to be impartial.
An example of the requirements of impartiality is illustrated by Judge Dara Nureddin an Iraqi who was nominated to sit on the appellate division of the IST, but who recused the nomination because “he had previously been imprisoned by the Saddam regime.”
Anonymous judges—those whose identity and qualification are not known—are prima facie violations of impartiality as has been recognized by the United States government itself. When commenting on the practice of “anonymous judges in Colombia, it recognized that “[h]uman rights groups continued to charge that this system violated basic legal norms and procedural rights.”
Furthermore, although the qualifications and names of the judge have not been made known, it is known that the judges have been vetted for their political opinions. Vetting judges on the basis of their political opinions is a prima facie violation of the principle of impartiality.
The occupying powers are violating this principle by selecting only judges who have been vetted for their political opinion for the IST.
In addition to preventing the existing judiciary from continuing to function or selecting new judges on the basis of their legal competence, the occupying power announced a program of de-Ba’athification. This process sought to vet judges based on their support for an occupation regime that had been installed by an unlawful use of force.
Judges who were allowed to remain on the bench were implicitly those who supported the illegal use of force against their own country and opposed, in violation of their own domestic law, the legitimate government of the country. As avowed enemies of the previous government, these judges cannot be expected to adjudicate in a fair and unbiased manner. Moreover, the government has announced that the judges’ names will be kept secret in order to ensure their personal safety; this procedure is an additional prima facie showing of the lack of impartiality.
Judges of the tribunal stated 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 stated that the President is “one of the worst tyrants in history.”
The lack of impartiality of the judges, which must be assumed because the majority are ‘faceless’/anonymous and neither their identity nor their credentials have been disclosed to defense counsel, must result in the disqualification of all the judges of the IST.
One judge, whose identity is known, is Chief Judge Abdel-Rahman, who as indicated above became Chief Judge only after significant interference in the functioning of the IST by both United States and Iraqi political officials. Moreover, Judge Abdel-Rahman was a Kurdish judge of junior level who did not even received the two weeks training that other judges on the IST had allegedly received. His statements in the courtroom irrationally lashing out at defense counsel are strong evidence that he was seriously biased against Iraqi President Saddam Hussein.
Despite strict secrecy surrounding information about Judge Abdel-Rahman and the inability of defense counsel to investigate his background through sources in Iraq because of the insecurity, there is ample information in the public domain to indicate that he is biased or must reasonably be perceived as biased.
This information included the following:
a. The media has widely reported that Judge “Raouf Abdul Rahman, the judge who has taken over at the trial of former Iraqi leader Saddam Hussein, was born in the Iraqi Kurdish town of Halabja.”
b. The British Broadcasting Company (BBC) has also stated that “Judge Rahman lost some of his relatives in the attack, although not immediate family members.”  The American media has furthermore stated that “[s]ome relatives of Abdel-Rahman were among the dead, according to his family.”
c. It has also been reported that Judge “Abdel Rahman set up organisations to help his hometown of Halabja recover from a gas attack attributed to Saddam's forces in 1988, which killed 5,000 people, including his relatives.” And that Judge “Abdel Rahman has taken a personal interest in helping Halabja heal, forming committees to help its distraught residents recover. Some observers wonder if a Kurdish judge can show impartiality.”
d. It has furthermore been reported that “[t]he Chief Judge [Abdel Rahman] was imprisoned and allegedly tortured for membership in a Kurdish nationalist movement in the early 1970s, when Iraq was already ruled by the Baath Party regime” and that Judge Abdel Rahman “was also reportedly tried in abstentia in 1977 and sentenced to life in prison.”
Each of these media reports are corroborated and consistent with the defense lawyers’ own very limited knowledge of Judge Abdel-Rahman’s background.
Moreover, none of these allegations been denied when they were alleged in formal motions made to the IST. These motions called for the disqualification of Judge Abdel-Rahman because of his perceived bias which is evidenced by his statements. These statements indicate that he is unable to ensure the presumption of innocence to which every defendant is entitled.
The IST has refused to provide a reasoned reply to the motion challenging Judge Abdel Rahman’s lack of impartiality. Instead the Appellate division of the IST held that it could not consider the motion because it should have been presented before the proceedings on the merits commenced. This was, of course, impossible as pointed out above, Judge Abdel Rahman was not a member of the IST when proceedings commenced in October 2005, nor was he even known to the defense lawyers. The IST’s failure to provide a reasoned opinion on motion challenging Judge Abdel-Rahman’s lack of impartiality is itself a violation of the obligation of impartiality.
Both for reasons related to obscuring of the judges’ identities as well as to the strong evidence suggesting overt displayed bias by the Chief Judge the IST violates the obligation of impartiality.
The manipulation of the IST already described in the previous section on lack of independence also indicates that the IST lacks impartiality. This is both because its judges have failed to defend the IST from attempts to politically control it and because the judges have created an appearance of colluding with political authorities.
The judges’ lack of impartiality has also been repeatedly made apparent. 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.” (See Annex J “Arte France and KS Visions DVD”). These are not the statements of impartial judges, who in the inquisitorial system of justice such as that of the IST, is both the evaluator of law and fact. These are the statements of persons who have been put in place by an illegal occupying power to serve its ends and not those of justice.
On 12 June 2006, the IST evidence its bias when the Chief Judge allowed a judge to read out allegations against the defense lawyers that had been made by defense witnesses who had been beaten, arrested, and held without access to counsel of their choice. These allegations read in front of their clients and in a public session of the IST that is trying these clients, alleged that the defense witnesses had been bribed by the defense lawyers. The IST did not bring the defense witnesses into IST, although it had had them in custody during the last session; it did not provide defense counsel copies of the allegations or the right to respond to them; and it later—through a person who claimed to be an officer of the IST—threatened the defense lawyers with arrest. This act alone is irrefutable evidence that the IST is biased, the trial is unfair, and that a mistrial must be declared.
This right is found in article 20(d)(1) of the original Statute of the IST, article 19(Fourth)(A) of the new Statute, article 14(1) of the International Covenant of Civil and Political Rights as well as under customary international law as reflected in article 10 of the Universal Declaration of Human Rights, article 6(1) of the European Convention on Human Rights, article 8(1) of the American Convention of Human Rights, and article 7(1) of the African Charter on Human and Peoples’ Rights.
The Human Rights Committee has stated that impartiality “implies that judges must not harbour preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties.”
The requirement of impartiality is violated because the judges have expressly shown bias by their statements and actions and have created an appearance of bias through their actions and inactions.
In April 2006 it was confirmed that Mr. William Wiley, who had worked from the United Nations from approximately mid-2005 to early 2006, had gone to work for the United States government’s Regime Crimes Liaison Office, which is the office that defense counsel and observers have accused of controlling the IST. For months Mr. Wiley used his United Nations position to gain confidential information from defense counsel and had represented to defense counsel that they could trust him with confidential information.
This conflict of interest represents not only a serious breach of integrity of the United Nations human rights operation in Iraq and undermines public confidence in this work, but it also constitutes a serious breach of legal ethics that undermines the impartiality of the IST.
Furthermore, Mr. Wiley also approached defense witnesses in an attempt to influence their testimony after he had been asked not to do so by the defense lawyers and he approached defense lawyers, prompting them to petition the IST on 13 June 2006 to have him prohibited from contacting either witnesses or the defense lawyers, according to Mr. Kaleel al-Dolami. Immediately after this motion was made, the Chief Judge of the IST prematurely ended the defense and disallowed the defense from calling anymore of the many witnesses it wished to call.
The right to be informed of charges in a timely manner has been violated by the fact that the President was not informed in any detail about the charges leveled against him in a timely or adequate manner.
The specific charges against the President were not provided to the defense until 15 May 2006, approximately two and half years after the President had been arrested, and approximately seven months into the trial and after the prosecution had presented its case, including all its witnesses and evidence. The extraordinary delay in providing the President the charges against him precluded him from preparing a defense or even questioning the witnesses or evidence against him.
This is especially egregious because the Statute of the Tribunal contains numerous charges that overlap or are very similar and contains new offenses which did not exist under neither Iraqi or international law at the time they are alleged to have been committed.
This right to a prompt hearing is enshrined in article 20(d)(1) of the original Statute of the IST and article 19(Fourth)(A) of the new Statute that entered to force on 11 October 2005 as well as under customary international law that is reflected in article 14(3)(a) of the International Covenant of Civil and Political Rights and is reiterated article 67(1)(a) of the Statute of the International Criminal Court, article 8(2)(b) of the American Convention on Human Rights, and article 6(3)(a) of the European Convention on Human Rights.
Interpreting the meaning of ‘promptness’ the Inter-American Court of Human Rights has held that it is violated when the accused was found to have been held incommunicado for 36 days without charges. The Court noted that “the principle of "reasonable time" is to prevent accused persons from remaining in that situation for a protracted period and to ensure that the charge is promptly disposed of.”
The right to adequate facilities and time to prepare one's own defense requires that the President and his legal counsel be allowed to freely and confidentially consult with each other in advance of a trial and during a trial. This right has been seriously violated in numerous ways.
The only meetings that took place between the President and his IST-appointed lawyers were not private and took place with constant surveillance from several United States soldiers.
There were no meetings between the President and his lawyer for more than a year including no face-to-face meeting during the whole of the defense case during May and June 2006.
When the President was able to meet a lawyer, he was only able to meet one who had been agreed to by the IST. This lawyer Mr. Kaleel al-Dolami, although extremely courageous, has no experience in prominent criminal cases, no experience or training in international criminal law, and had never met the President in person in his life. He was appointed by the IST from a list of several lawyers prepared by the IST from which the President was forced to choose. The ACHRP held that the assignment of lawyers to accused persons “is capable of exposing the victims to a situation of not being able to communicate, in confidence, with counsel of their choice.” In this case, the President's Iraqi lawyers were all either IST-appointed or IST approved before they could meet the President. In addition lawyers none of them have significant expertise in international criminal law from which all the charges against the President are drawn. Such expertise is central to the proceedings according to the Statute of the IST. At the same time, lawyers with expertise in international law were consistently prevented from participating in the defense either by the IST-appointed lawyers, the United States government officials or those acting on their behalf, or Iraqi officials.
Repeated requests by the President himself to consult experts in international law were ignored by both the IST and the occupying powers. The ECHR reaffirmed that “art 6(1) might sometimes compel the state to provide for the assistance of a lawyer when such assistance proved indispensable for effective access to a court, either because legal representation was rendered compulsory, or by reason of the complexity of the procedure or of the case.”
Moreover, all the meetings that took place between the President and his IST-appointed lawyers were not private and took place with constant surveillance of several soldiers from the occupying powers.
The IST did not allow the President to know the charges against him until 15 May 2006, almost two and half years after he was detained and had been held with very limited access to legal counsel. After he was provided the charges the defense was given a matter of minutes to begin to present its case, no time was allowed to prepare a defense or to evaluate the prosecution’s case.
Moreover, because the charges were provided only after the prosecution had presented its case there was not even the possibility for the defense lawyers to cross examine witnesses or review documentary evidence after knowing the charges.
Furthermore, only part of the evidence—and not all of the most important evidence—was handed over to the defense mere days before the proceedings were to begin in October 2005. By comparison, in Ocalan, the European Court of Human Rights frowned at the delay in providing legal counsel access to information, the likes of which it deemed the result of “the sheer number and volume of documents and the restriction imposed on the number and length of their (legal counsel) visits.”
Furthermore, the prosecution did not provide the defense lawyers any exculpatory evidence. This was the case even though the defense lawyers repeatedly asked for evidence such as the transcripts and papers form the Dujail investigation and trial that took place in 1982. While first denying and then admitting they had these papers, the prosecution never provided them to the defense lawyers. This state of affairs in Mr. Hussein’s case stands in stark contrast with the ICTY Tribunal’s decision to grant defense counsel access to confidential transcripts and documents from another legal proceeding.
In Avocats Sans Frontieres v. Burundi, the African Commission on Human and Peoples’ Rights found that
the right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defense and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial. Simply put, they should argue their cases before the jurisdiction on an equal footing. Secondly it entails the equal treatment of all accused persons by jurisdictions charged with trying them. This does not mean that identical treatment should be meted to all accused. The idea here is the principle that when objective facts are alike, the response of the judiciary should also be similar. There is a breach of the principle of equality if judicial or administrative decisions are applied in a discriminatory manner. In the case under consideration, it is expected of the Commission to attend to the first aspect, that is, observation of the rule of equality of the means utilized by the defense and the prosecution.
The right to adequate facilities and time to prepare one's own defense has been violated by the failure to provide the President adequate access to his lawyers.
The right to adequate time and facilities to prepare a defense is stated in article 20(d)(2) of the original Statute of the IST and article 19(Fourth)(B) of the new Statute that entered to force on 11 October 2005 as well as in article 14(3)(b) of the International Covenant of Civil and Political Rights and is reiterated in article 67(1)(d) of the Statute of the International Criminal Court, article 8(2)(c) of the American Convention on Human Rights, and article 6(3)(b) of the European Convention on Human Rights.
The trial has not been public. Instead the United States government controls what parts of trial are allowed to be broadcast to the public and deletes whatever parts it does not wish to be broadcast.
The BBC’s John Simpson has commented that “[t]he American company in charge of broadcasting the proceedings frequently blanks out the sound of what Saddam and the others say, and sometimes cuts the vision as well.” He continues to the frustrating conclusion that “[t]he impression of control and censorship is very strong - and yet the things which cannot be broadcast are often trivial enough.”
In addition, the Chief Judge has sometimes shut the courtroom from the public because he did not like what was being said by a witness or other participant in the trial without either providing an explanation or refer to a rational nexus as that latter may pertain with regards to the protection of other persons present in the courtroom or listening to the trial.
On 13 June 2006, for example, the Chief Judge suddenly ordered the IST closed to the press for several hours for no apparent reasons.
The right to public trial is stated in article 20(c) of the original Statute of the IST and article 19(Third) of the new Statute that entered to force on 11 October 2005 as well as in article 14(1) of the International Covenant of Civil and Political Rights.
The right to a lawyer of one’s own choosing and to communicate with a lawyer of one’s own choosing requires that a defendant be able to choose his own lawyer or lawyers after consultations.
In this case, the President had requested meetings with senior lawyers, including former United States Attorney General Mr. Ramsey Clark. These lawyers also themselves sought meetings with the President. No meeting with such senior lawyers was ever allowed to take place before the proceedings started in October 2005.
This right is violated whenever a defendant is refused the right to meet with a lawyer who wishes to meet with the defendant.
This right is enshrined in article 20(d)(2) of the original Statute of the IST and article 19(Fourth)(B) of the new Statute that entered to force on 11 October 2005 as well as in article 14(3)(d) of the International Covenant of Civil and Political Rights and in article 11(1) the Universal Declaration of Human Right, which reflects customary international law as is evidenced by the restatement of the rule in article 67(1)(d) of the Statute of the International Criminal Court, article 8(2)(d) of the American Convention on Human Rights, article 6(3)(c) of the European Convention on Human Rights, article 7(1)(c) of the African Charter of Human and Peoples’ Rights.
This right is violated whenever a defendant is refused the right to meet with a lawyer who wishes to meet with the defendant. In Ocalan, the court noted that
on the day after his arrest, his lawyer in Turkey, Mr Feridun Celik (who already possessed a valid authority), sought permission to visit him . . . but was prevented from traveling by members of the security forces. In addition, on 22 February 1999 sixteen lawyers who had been retained by the applicant's family sought permission from the State Security Court to visit the applicant, but their requests were turned down by the authorities.”
The Court held that “to deny access to a lawyer for such a long period and in a situation where the rights of the defense might well be irretrievably prejudiced is detrimental to the rights of the defense to which the accused is entitled by virtue of art 6 . . .” 
Every defendant has the right to be adequately represented by lawyer of his own choosing. This right was significantly violated by the requirement that defence counsel had to be approved by the IST and the occupying power, experience defense counsel were denied the right to meet with the President before the start of the trial, defense counsel have been continuously obstructed from being able to prepare a defense and participate in the trial, and several times—including for closing arguments—defence counsel were appointed who had previously declared the defendant guilty in front of other defense counsel.
From the time that the President was detained in late 2003 until August 2004, no defense counsel was allowed to meet the President despite requests that were made by experienced defense counsel who knew the President, such a Mr. Ramsey Clark on the time of his detention. These request received no response from the American or Iraqi authorities.
Only in December 2004 was one lawyer with no experience in international criminal law allowed to meet the President after being approved by the IST and the American occupying powers. This lawyer, Mr. Kaleel al-Dolami, had submitted his name with other Iraqi lawyers in early 2004 for approval. This lawyer was not know to the President, had not been requested by the President at the time, and admits that he is not an expert in international criminal law and has no experience in high profile trials.
Not until after the first trial started on 19 October 2005, was experienced counsel allowed to meet the President. This was almost two years after he had been detained and repeatedly investigated, interviewed and allegedly tortured. Even at that time and despite a specific authorization for foreign lawyers in the Statute of the IST, the foreign lawyers with experience in prominent criminal cases and international law were not allowed to meet with the President.
Continuously during the trial experience defense counsel were harassed and denied access to their client. This was done through several different actions. Defence counsel were told they could not meet with their client because of security concerns, defense counsel were told it was not safe to come to Iraq or not provided security in Iraq, defense counsel were told that they would have to pay exorbitant fees for security, defense counsel were not allowed private meetings with the President, defense counsel were not allowed to pass legal documents to the President without their first being reviewed by the occupying authorities—often important legal documents were not authorized, hearing where scheduled with inadequate notice and without taking into account prior legal obligations of counsel—especially the most experienced lawyers, defense counsel were told they had to repeatedly submit documents concerning their standing as lawyers to the IST—often the IST did not respond or claimed not to have received documents that had been provided to the IST in open court, documents were not provided on time and were often unreadable and never translated to English so that the experienced foreign defence counsel could read them.
Finally, in several hearing before the IST, including for the closing argument delivered on 10 July 2006, the IST appointed lawyers against the will of the defendants. On these occasions defense counsel chosen by the President did not appear because of threats to their personal security or because of the serious due process violations by the IST, for example, denying defense counsel the right to speak before the IST. On 10 July 2006, the President objected to the IST appointed lawyers who presented the closing argument in his defense. Lawyer Mr. Mazin Abdul Hammed Jabbar told a Jordanian lawyer at the courthouse that “the defendants in this case do not deserve being tried … [and] they should be left in the streets for people to directly take their revenge on them. This is because the death penalty is a rather mild sentence when compared to the crimes they committed against the Iraqi people.” Annex I from 26 March 2006 entitled “Affidavit by Jordanian Lawyer of Statements of Bias Against President Made By IST-Appointed Lawyer Who Made Closing Statement for Defense.”
The right to be represented by competent lawyers of one’s choosing is an indispensable part of a fair trial. This right is enshrined in article 20(d)(2) of the original Statute of the IST and article 19(Fourth)(B) of the new Statute that entered to force on 11 October 2005 as well as in article 14(3)(d) of the International Covenant of Civil and Political Rights. This right is further explained in principle 5 of the UN Basic Principles on the Role of Lawyers as the right of every defendant “to be assisted by a lawyer if their own choice upon arrest or detention” and to requiring that all defendants for lawyers are appointed by a court “be entitled to a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance,” which reflects customary international law as is evidenced by the restatement of the rule in article 67(1)(d) of the Statute of the International Criminal Court, article 8(2)(d) of the American Convention on Human Rights, article 6(3)(c) of the European Convention on Human Rights, and article 7(1)(c) of the African Charter on Human and Peoples’ Rights.
The right to call and examine witnesses is fundamental to the opportunity to a defense. Without this right a defendant and defense counsel are not able to conduct a defense. This right requires that witnesses must be protected by the court in which they appear and that the defense must have the ability to question witnesses.
In the current proceeding, witnesses—especially defense witnesses—cannot testify because they cannot be protected from the violence that is widespread Iraq by the authorities and defense lawyers cannot find witnesses because they are subjected to same violence without adequate protection. Defense lawyers are also impeded in compiling a list of its own witnesses, as they are constantly threatened and/or intimidated when they are attending the IST sessions. On 13 June 2006, the IST also expressly prevented the defense from calling more witnesses stating merely that it did not wish to hear anymore defense witnesses after agreeing to do the day before.
Moreover, during these proceedings, defense has not been provided the copies of the statements of prosecution witnesses in violation of Rule 40(A) of the Rules of Procedure and Evidence of the IST. It also violates the human right of the defense to call and examine witnesses. Without the transcripts of the proceedings defense lawyers are not able to adequate participate in the questioning of either defense or prosecution witnesses.
Moreover, defense witness have been killed and intimidated, sometimes even by IST officials or with the apparent participation of the occupying powers.
In April 2006 after the United States authorities cancelled a meeting between a defense lawyer and a defense witness, the witness turned up dead. The United States officials had refused to allow the defense lawyer to travel to the meeting alone and had insisted they be told the time and place of the meeting in order to provide security. After being provided the exact time and place of the meeting the American cancelled it without prior notice and without the defense lawyer being able to contact the person he was to meet. A few days later this defense witness was killed.
On Wednesday 31 May 2006, after having testified that several prosecution witnesses were lying, three defense witnesses were beaten, arrested, and held without access to lawyers of their own choosing. The IST had issued the order for their arrest according to the police and United States force that came to arrest them. The IST later alleged that the defense witnesses were arrested because they had been lying when in their testimony they accused prosecution witnesses of lying and the prosecutor of bribing them. No effort was made to investigate the truth of these statements, but instead the arrests appear based merely on the prosecution’s or United States government’s allegation. During their detention, while being held with access legal representation of their own choosing, the IST alleged on 12 June 2006 that the defense witnesses had signed statements saying they had been bribed by defense lawyers. The IST gave no details of motive and read the charges into the record in the courtroom, but refused to allow defense lawyers to have a copy of the statements or to question the defense witnesses.
Furthermore, on 12 and 13 June 2006, Mr. William Wiley, who claimed to working for the IST, questioned and instructed defense witnesses what to say over the objection of the defense lawyers. He also indirectly—through his colleague—threatened one of the defense lawyers with arrest if they objected to his actions in open court.
These examples are evidence of interference with witnesses that was so intense as to violate the human right to call and examine witnesses of the defense.
This right to be able to confront witnesses is found in article 20(d)(5) of the original Statute of the IST and article 19(Fourth)(E) of the new Statute that entered to force on 11 October 2005 as well as in article 14(3) of the International Covenant of Civil and Political Rights and in customary international law as is evidenced by the restatement of the rule in article 67(1)(e) of the Statute of the International Criminal Court, article 8(2)(f) of the American Convention on Human Rights, article 6(3)(d) of the European Convention on Human Rights.
The right reflected in the maxims nulla poena sine lege and nullum crimen sine lege prohibits the punishment or prosecution of an individual for acts that were not deemed crimes under the laws of the country concerned at time of their commission. It also precludes the prosecution of individuals before special courts that were created to prosecute specific individuals for acts made crimes long after the acts constituting the alleged crimes were committed.
The IST did not exist under Iraqi law. It was created by the IST Statute attached to CPA Decree No. 1 on 10 December 2003. Not only was the IST created illegally as has been shown above, but it was created only to try the President and his colleagues for specific crimes. The creation of the IST long after the alleged crimes have been committed and when courts already existed in Iraq means that the President and his colleagues could not have reasonably believed that they would be subjected to the jurisdiction of such an extraordinary court when they alleged took action.
This IST Statute also contains crimes that that did not exist at the time that they were allegedly committed or there are serious questions as to their existence. For example, the Iraqi Penal Code in force since 1969 does not include crimes against humanity in civilian armed conflicts. Although crimes against humanity were created by after World War II, it was not until very recently, with the development of the jurisprudence of the two ad hoc tribunals, that war crimes and crimes against humanity became recognized as offenses in non-international armed conflicts.
In the Dujail case the President is charged with crimes against humanity. Such crimes did not exist either under Iraq law or under international law at the time that the alleged events took place in July 1982. Iraqi law had not incorporated any concept of crimes against humanity and the concept that did exist under international law as applying to non-international armed conflicts as was made clear at the Nuremberg trials.
The principles of maxims nullum crimen nulla poena or nullum crimen sine lege are enshrined in article 15(1) of the International Covenant of Civil and Political Rights and article 11(2) the Universal Declaration of Human Right, which reflects customary international law as is evidenced by the restatement of the rule in article 22 of the Statute of the International Criminal Court, article 9 of the American Convention on Human Rights, article 7 of the European Convention on Human Rights, and article 7(2) of the African Charter of Human and Peoples’ Rights.
The ECHR has held that
[a]ccording to the Court's case-law, Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable. [notes omitted]
These rights are non-derogable, according to article 4 of the International Covenant of Civil and Political Rights, and have been referred to by leading international legal experts as “cornerstone principles of criminal law” that “have become known in almost all of the world’s legal systems.” Article 70 of the Fourth Geneva Convention also prohibits prosecutions based on retroactively applicable laws.
In this case, the principles of nullum crimen nulla poena and nullum crimen sine lege have been knowingly and intentionally violated by the United States and Iraqi authorities as part of their effort to conduct an unfair trial to ensure an execution that serves their political ends.
The right to presumption of innocence requires that an individual not be prejudged.
This right requires that all public officials of the state prosecuting an individual must not make statements expressly stating or implying that guilt of a person who has not yet been convicted. This principle has been interpreted as a fundamental principle, which protects everybody against being treated by public officials as if they were guilty of an offence even before such guilt is established by a competent court.
The repeated statements by officials of the government of Iraq and the United States government violate this right. These statements have sometimes come from the judges of the IST as well.
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” In the same film another judge states that the President is “one of the worst tyrants in history.” Such statements are evidence of the bias of the judges of the IST and consequently the lack of impartially of the proceedings before the IST.
This right is well-established in article 20(b) of the original Statute of the IST and article 19(First) of the new Statute that entered to force on 11 October 2005 as well as article 14(2) of the International Covenant of Civil and Political Rights and in article 11 of the Universal Declaration of Human Right, which reflects customary international law as is evidenced by the restatement of the rule in principle 36(1) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
No Equality of Arms
The principle of equality of arms is violated when the prosecuting party is able to spend millions of dollars on the prosecution of an offense while confiscating all assets of the President and forbidding him to gain access to lawyers willing to represent him.
In the present case, the United States, as one of the occupying powers, has stated that it has spent at least hundreds of millions of dollars while preparing the alleged case against the President and provided at least “$138 million to build, over the course of a year, the state-of-the-art courthouse that sits at the heart of the fortified Green Zone” for the judges and prosecutors. The United States is also alleged to have sent teams of prosecutors, investigators and advisors to gather evidence and train prosecutors. Even before the trial started it was reported that he United States was paying the IST’s annual budget of $75 million for 2004-05” and that “teams of Iraqi lawyers and judges are backed up by more than 75 foreign experts, many from the United States and Britain, and have been helping to prepare the evidence and organize the cases.”
At the same time, the occupying powers confiscated all monies and property belonging to the President, including an estimated US$700,000 taken from the President’s person at the beginning of his detention. Such a taking is not only a violation of international humanitarian law, but it also deprives the President of resources he could have used to prepare his defense.
As a consequence, defense counsel are working as volunteers and have no resources to investigate the scenes of the alleged crime, to search for witnesses, to review evidence—most of which they have not been given, or to even do the complex legal research that is required for such a trial.
Defense counsel are denied regular and meaningful visits with their client as request for meeting are routinely ignored and receive with such short notice as to make it often impossible to organize travel to the Iraqi capital at the specified day and time.
In an email of 1 December 2005, United States military Captain Michael McCoy attempted to extort between “between $2,000 and $3,000” for each trip to or from the airport from defense counsel, saying that “we will forward that bill onto the Saddam International Attorneys when we receive it” and threatening not to provide security if this sum was not paid.
While the United States government has taken some steps towards meeting their responsibilities to provide security to the lawyers, these steps have been grossly inadequate—as the killing of two defense counsel, which have to date not been investigated, have indicated—and often the steps taken have done more to interfere with ability of the lawyers to do their work then to provide security.
For example, on 4 April 2006, claming security required he be prevented from leaving the housing compound, one of the lawyers was forced to miss meetings with potential witnesses. These meetings had been pre-arranged and the American officials had been notified more than 24-hours in advance with the exact time, length, and location of the meetings. Nevertheless, with no prior warning—indeed after assurances were made that these meetings would be held—and while the lawyers were prevented from having access to communications equipment such a their mobile telephones so the persons they were meeting could not be contacted in time, the United States prevented any lawyer from attending the meetings. Not only does this show the degree of American control over whole process before the IST, but also how prerogatives of security are exercised in such a way to prevent defense counsel from being able to prepare a defense and this significantly disadvantaging them in relation to the prosecution.
Equality of arms requires both procedural and substantive equality between the President and the prosecution. established in article 20(a) of the original Statute of the IST and article 19(First) of the new Statute that entered to force on 11 October 2005 as well as the Statute of the ICTY (article 20), the Statute of the ICTR (article 20) and the Statute of the ICC (article 67)
Additionally, the right to security of person has been violated by the arbitrary arrest of the President as a consequence of an illegal use of force against his country and the denying him of the right to challenge his arrest before a court that can fully review its legality. The African Commission on Human and Peoples’ Rights has held that “even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens. . . ”
In this case, the arrest is prima facie illegal because such arrest took place in furtherance of a violation of international law, and as a result of an illegal action. An illegal arrest is a violation of the human right to security of person.
Furthermore, after arresting the President his human right to security of person was violated by: (a) the detaining powers' failure to inform him in a timely manner of the reasons for his arrest and any of the charges against him; (b) the detaining powers' failure to bring him promptly before a court so as to allow him the opportunity to challenge the legality of his arrest and denied him legal representation; and (c) the detaining powers' failure to provide him a means of seeking compensation for the violation of his rights, which included the theft of money allegedly found on the President's person at the onset of his illegal detention.
The President was not informed of the charges against him for more than a year and half of detention. The President was only formally charged on 15 May 2006 the same day he was forced to start to present his defense and only a months before the Judge interfered with the defense denying it the right to continue and forcing it to make closing arguments. The President and his lawyers had not time to prepare a defense.
The President was held incommunicado from 13 December 2005 to 1 July 2004 before he was brought before an investigative judge. During this time and until December 2004 the President was denied any access to a lawyer. As such, he was denied the right to appear before a court of law to challenge the legality of his defense. All attempts by lawyers to whom the President has explicitly requested access have been denied or have received no response.
Moreover, the trial chamber of the IST has failed to provide the President a meaningful process by which he might be compensated for the violation of his rights. When a preliminary petition was submitted challenging the legality of the IST, this submission was rejected. The IST did not even consider defense counsel’s submissions as was indicated by the fact that the clerk of the IST asked the defense lawyers to “take it back” because the judges “did not want to respond to it.”
The right to security of person is found most notably in article 10 of the International Covenant of Civil and Political Rights as well as article 3 of the Universal Declaration of Human Rights, article 7 of the American Convention on Human Rights, article XXV of the American Declaration of the Rights and Duties of Man, article 5 of the European Convention on Human Rights, and article 6 of the African Charter of Human and Peoples’ Rights.
The European Court, while interpreting the right to the security of persons listed in article 5 of the European Convention on Human Rights, a right which is stated in similar language in article 10 of the International Covenant of Civil and Political Rights, stated that “an arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person's individual rights to security under Article 5 §1.” To show that his rights have been violated, the Applicant must establish “that the authorities of the State to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law.”
The possibility that the death penalty will be applied is significant despite the fact that doing so will be in direct violation of international and Iraqi law as shown below.
Not only has the Prosecutor of the IST expressly called for the death penalty, but United States President George W. Bush, Iraqi President Jalal Talabani, Iraqi Prime Minister Nouri Al-Maliki, and, allegedly, the Chief Judge even before the trial started, have all said that the death penalty should be implemented.
To implement the death penalty in this case will violate the prohibition of the ex post facto application of the death penalty under international law and result in the application of the death penalty after a clearly unfair trial.
Iraq did not have the death penalty for the crimes that may be tried before the IST prior to the United States’ aggression against the Iraqi people because those crimes did not even exist under Iraqi law. Immediately after the invasion the United States established CPA suspended the death penalty completely as of June 2003.
Moreover, in 1982, when the acts complained of allegedly took place, there was no death penalty for the alleged crimes because the alleged crimes did not exist at that time under Iraqi law. Even when the President and his colleagues were detained there was no death penalty. The crimes with which the President and his colleagues have been charged were only created by the American occupying powers in Iraq subsequent to their illegal aggression against the people of Iraq.
The majority of states in the international community do not have the death penalty and the death penalty has been rejected by every judicial body applying international criminal law without exception. It is excluded as a penalty from the Statutes of the International Criminal Court, the International Criminal Tribunals for the former Yugoslavia and for Rwanda, the Special Court for Sierra Leone, the Special Panels for East Timor, the special panels in Kosovo, and the Extraordinary Chambers in Cambodia.
In addition, despite the United States suspension of the death penalty by section 3(1) of CPA Order No. 7 of 9 June 2003, the Statute of the IST attempts to reinstate it with retroactive effect. Section 2(2) of the Iraqi Penal Code, to which sections 17(a) (ii) and 24 of the Statute of the IST refers, clearly says that if there are changes in the law after a certain offence then the most favorable, not the latest law, must be applied. This requires that once the death penalty has been abolished as was done it cannot be re-instated with retroactive effect, but that the most favorable law in the intervening period of time must be given effect.
Nevertheless, on 8 August 2004 the death penalty was reinstated in Iraq for
for the crimes in the Statute of the Iraqi Special Tribunal. Under article 24(a) of the Statute, penalties for offenses ‘shall be those prescribed by Iraqi law […].’ And under article 24(e) of the Statute, penalties that ‘do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents.’
The retroactive application of the death penalty violates the Iraqi Penal Code, which states in Article 1 that “no act or omission shall be penalized except in accordance with a legislative provision under which the said act or omission is regarded as a criminal offense at the time of its occurrence.” It also violates article 6, paragraph 2, of the International Covenant of Civil and Political Rights that prohibits imposition of the death penalty when it does not apply “in accordance with the law in force at the time of the commission of the crime.” Consequently, this arbitrary application of the death penalty is also a violation of the right to life in article 6 of the International Covenant of Civil and Political Rights.
The death penalty may not be applied after an unfair trial. The death penalty may only be applied “pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings,” according to Safeguard 4 of the authoritative UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty.
As indicated above by the extensive examples of unfairness, the proceedings before the IST are extremely unfair and unjust. Many of the above examples include interferences urging that the death penalty by applied.
Execution after an unfair trial would violate the non-derogable right not to be arbitrarily deprived of life, guaranteed by Article 6 of the International Covenant of Civil and Political Rights.
The trial is widely perceived to be illegal and unable to ensure fundamental human rights. This observation has been made by numerous human rights bodies including non-governmental organizations and intergovernmental organizations.
Having observed the IST since its inception the United Nations expert on fair trial, Professor Leandro Despouy, has stated that
56. This [IST] has been the subject of analysis and special concern for the Special Rapporteur since 10 December 2003 when the Statute of the Iraqi Special Tribunal (IST) was adopted and throughout its development. Already in his reports to the Commission and the General Assembly in 2005, he had the opportunity to express his reservations regarding the legitimacy of the tribunal, its limited competence in terms of people and time [footnote omitted] and the breach of international human rights principles and standards to which it gives rise. But beyond these serious objections of a legal nature, to which should be added the possibility that the death penalty might be applied, the Special Rapporteur has observed the terrible conditions in which the trial has been taking place and in particular the climate of insecurity in the country, which in turn has affected its development.
57. The level of violence is such that one of the judges and another five candidates for the post have been assassinated. The same fate was met by one of the defence lawyers of Saddam Hussein on the day after the trial began; on 8 November 2005 another defence lawyer was murdered and in the course of the same attack a third one was wounded. Pressure has grown for the trial to be removed from Iraq. The protests of non-Iraqi lawyers have increased, and they maintain they are not allowed enough time to put forward their pleas. All this led at E/CN.4/2006/52 page 18 the beginning of December 2005 to the temporary suspension of the trial, to the withdrawal and return of the defence team, to the absence of the main person accused and to the possibility that the trial might be continued behind closed doors.
58. Although it is generally agreed that Saddam Hussein should be tried for the atrocities committed, what is needed is an institution which has the material capacity to do so, which respects international human rights standards and which offers the necessary security guarantees, and this is obviously not the case at present. The experience of the various international tribunals established by the United Nations shows that there are alternatives to the IST, even within the Organization, since the trial of the former dictator and his collaborators can offer a valuable model for combating impunity, provided that the rules of due process are respected and that the community at large understands that it is a real act of justice and not the verdict of the victors over the vanquished.
This statement reflected widely held concerns by the Commission, but it does not state the consequences of these concerns. International law requires certain consequences.
First and foremost among these consequences is that all violations of international human rights law should be brought to an end.
This can only be done if the current proceedings are stopped, a mistrial declared, and all the current judges of the IST are disqualified.
In addition, all the defendants should be immediately compensated for the violations of their human rights and provided the resources equivalent to those provided to the prosecution in order to prepare their defense.
The irreparable violations of human rights make continuation of the trial before the IST impossible and allowing the trial to continue will send a message to the world that force can be used to launch assaults on the rule of law with impunity as the United States government has done.
An even more immediate consequence will be continued violence in Iraq. The unfairness of the trial has already heightened tensions between section of the population that opposed the President and supported the aggression against their country, and the increasing number of people whose security was better ensured under their own government rather than under a government put in place by a foreign and oppressive occupier.
Stability, peace, and reconciliation must be prompted. These goals cannot be achieved by victors’ injustice imposed by those whose de facto authority is based on their illegal aggression against the Iraqi people. Far too many people have already died. If these proceedings continue, they will contribute to the death of many more.
Urgent action is needed by the international community if it is to preserve the rule of law.
The international community must act now. It must intervene to ensure that all proceedings before the IST are stopped, a mistrial declared, and that the proceedings are removed to a court under United Nations auspices that can ensure respect for all the President’s human rights. International law and concern for international peace and security in Iraq demand this action.
OPINION No. 46/2005 (Iraq and United States of America)
Communication addressed to the Governments on 9 March 2005,
Concerning: Mr. Saddam Hussein Al-Tikriti
Both States are Parties to the International Covenant on Civil and Political Rights
1. The Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights. The mandate of the Working Group was clarified and extended by resolution 1997/50 and confirmed by resolution 2003/31. Acting in accordance with its methods of work, the Working Group forwarded the above-mentioned communication to the Governments of Iraq and the United States of America.
2. The Working Group conveys its appreciation to both Governments for having submitted information with regard to this communication.
3. The Working Group regards deprivation of liberty as arbitrary in the following cases:
I. When it manifestly cannot be justified on any legal basis (such as continued
detention after the sentence has been served or despite an applicable amnesty act) (Category I);
II. When the deprivation of liberty is the result of a judgement or sentence for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18, 19,20 and 21 of the Universal Declaration of Human Rights and also, in respect of States parties, by articles 12. 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
III. When the complete or partial non-observance of the relevant international standards set forth in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned relating to the right to a fair trial is of such gravity as to confer on the deprivation of liberty, of whatever kind, an arbitrary character (Category III);
4. In the light of the allegations made the Working Group welcomes the cooperation of the Governments of Iraq and of the United States of America. The Working Group transmitted the replies provided by the two Governments to the source and received its comments.
5. According to the information received from the source, Mr. Saddam Hussein Al-Tikriti, born on 28 April 1937, of Iraqi nationality, is the former President of Iraq.
6, According to information publicly available, on 20 March 2003 military forces belonging primarily to the United States of America (“US”) and the United Kingdom of Great Britain and Northern Ireland (“UK”) began the invasion of Iraq. On 9 April 2003, Baghdad was formally secured by US forces and the Iraqi regime headed by President Saddam Hussein was declared to have ended, On 1 May 2003 the President of the United States announced the end of major combat operations in the Iraq war, As recognized in UN Security Council resolution 1483 (2003), [page 1] around this date the US and the UK “assumed the specific authorities, responsibilities, and obligations under applicable international law .,, as occupying powers under unified command”. The Coalition forces established a Coalition Provisional Authority (CPA) under an Administrator named by the US. The CPA named an Interim Iraqi Governing Council. On 30 June 2004, the occupation of Iraq ended and the CPA ceased to exist. As of that date, Iraq reasserted its full sovereignty and an Interim Government of Iraq assumed full responsibility for governing Iraq (see paragraphs 1 and 2 of UN Security Council resolution 1546 (2004)). In accordance with Security Council resolution 1546, however, a multinational force, composed primarily of US and UK military forces, remains in Iraq at the request of the Iraqi Government.
7. On 13 December 2003, Mr. Saddam Hussein was captured in Tikrit by military forces of the United States, then the occupying power in Iraq, and was taken into custody at an undisclosed location. From that date until the time of submission of the communication, his only contact with his defence team was on 16 December 2004 with one of his attorneys, under supervision of at least two United States military guards who were present during this interview. The source states that despite repeated requests before and after this interview, the lawyers of the defence committee were denied the possibility to hold other meetings with their client.
8. The source alleges that Mr. Saddam Hussein was initially detained as a prisoner of war wider the terms of the Third Geneva Convention Relative to the Protection of Prisoners of War. However, the United States Government has since then claimed that he is no longer a prisoner of war but a prisoner of the Iraqi Government. The source adds that, despite this claim by the United States Government, Saddam Hussein remains under the complete control of the United States Government.
9. On 10 December 2003, the Iraqi Governing Council established the Iraqi Special Tribunal. According to Article 1 (b) of its Statute, “[t]he Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 to 14 below, committed since July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the State of Kuwait.” The crimes listed in Articles 11 to 14 of the Statute are genocide, crimes against humanity, war crimes, and violations of certain Iraqi laws listed in Article 14. On 11 October 2005, the President of Iraq signed a new statute and new rules of procedure of the court, which rename it Supreme Iraqi Criminal Tribunal (which is the term used hereinafter).
10. According to information publicly available, Mr. Saddam Hussein appeared before the Supreme Iraqi Criminal Tribunal for his first hearing (arraignment) on 1 July 2004. The hearing took place in a Secret location and the defendant was not assisted by counsel, the investigating judge confined himself to ascertaining the identity of the accused. In addition, Mr. Saddam Hussein was informed of seven charges brought against him. Because he was not assisted by legal counsel, he refused to sign the record of proceedings.
11. The source further submits that Mr. Saddam Hussein’s status should be covered by the Third Geneva Convention Relative to the Protection of Prisoners of War, since he was captured because of his participation in an armed conflict. However, he is being denied such protection by the United States Government as occupying power and custodian authority, and the Iraqi authorities have brought charges against him before the Supreme Iraqi Criminal Tribunal, [page 2] Therefore, the source is of the opinion that legal responsibility for Ms arbitrary detention attaches to both Iraq and the United States of America.
12. The source alleges that the detention of Mr. Saddam Hussein is arbitrary because he has not been charged in a timely manner, has not been granted the full privileges of a prisoner of war (for example, to be allowed to communicate with his family without undue delays or to receive documents pertaining to his legal representation), has been forced to prepare his trial in conditions of complete isolation from the outside world, detained at a secret location, severely restricted in the contact with legal counsel (although the charges raised against him must be of the most serious nature to fall within the mandate of the Supreme Iraqi Criminal Tribunal). The source concludes that the non-observance of international norms relating to fair trial is so serious as to render his pre-trial detention, as well as any detention upon conviction, arbitrary. Furthermore, the source alleges that Mr. Saddam Hussein has been denied the right to challenge the legality of his detention. Finally, the source expresses doubts as to whether a fair trial can at all take place under the current security situation in Iraq, before a special tribunal that lacks the independence and impartiality needed.
13. In its reply to the communication, dated 2 May 2005, the Government of Iraq states that Saddam Hussein is awaiting trial, and that it is premature to discuss matters relating to his right to prepare his defence and to a fair hearing. As to his place of detention, it is kept secret in order to protect him. The Government further reports that Saddam Hussein was allowed to meet one of his lawyers on 27 April 2005, that this meeting had lasted six hours, and that the lawyer was able to freely interview Saddam Hussein in the presence of an officer.
14. In its reply to the communication, the Government of the United States underlines that, as also noted by the source, Saddam Hussein is in physical custody of the Multinational Forces in Iraq (MNF-I) pursuant to arrangements between MNF-I and the Iraqi Ministry of Justice, but is being held under the legal authority of an Iraqi court. The Government of the United States therefore considers that the Government of Iraq is best placed to clarify the legal basis of the detention of Saddam Hussein.
15. In replying to the statement by the Government of the United States, the source argues that as the State actually detaining Saddam Hussein, the United States is responsible for respect of his right to security of person, a responsibility it cannot disclaim on the basis of the argument that Saddam Hussein is kept in custody on behalf of the Government of Iraq or of the argument that he is not detained on US territory.
16. As to the reply of the Iraqi Government, the source asserts that the Iraqi Government confirms the accuracy of all its allegations. The source argues that Saddam Hussein’s rights to counsel, to prepare his defence, and to a fair hearing have been violated (as of mid-August 2005) for more than 20 months, It adds that a single meeting between counsel and defendant in the presence of a United States military officer clearly does not fulfill the requirements of the right to be assisted by counsel, Finally, the source argues that the violation of Saddam Hussein’s rights is exacerbated by the repeated attacks against the house of his defence counsel, as well as by his humiliation through the circulation of pictures showing him in partial undress, and by the Government allowing physical attacks against him while in custody. [page 3]
17. To be able to spell out the law applicable to the different issues raised by the source and identify the Government(s) responsible under international law for the legality of the detention and the eventual violation of the rights of Mr. Saddam Hussein, if any, the Working Group considers necessary to highlight the particularity of the circumstances of the case before it.
18. The Working Group would like to stress that Mr. Saddam Hussein was the President of the Republic when armed forces of the United States and the United Kingdom of Great Britain and Northern Ireland invaded Iraq on 20 March. On 1 May 2003, the Security Council in its resolution 1483 admitted that the United States and the United Kingdom of Great Britain had assumed the authority, responsibility and applicable obligations under international law in the territory of Iraq. On 13 December 2003, Saddam Hussein was captured in Tikrit by US military forces. Later, the occupying forces constituted the CPA as the Coalition Provisional Authority under the control of an envoy named by the Government of the United States. On 30 June 2004, the occupation ended and the full sovereignty of Iraq was restored through the Interim Government of Iraq. In accordance with Security Council
resolution 1546 of 8 June 2004, however, a multinational force (MNF-I), composed primarily of United States of America and United Kingdom military forces, remained in Iraq at the request of the Iraqi Government. At some point before the restoration of sovereignty to Iraq, Mr. Saddam Hussein and other members of the former Iraqi’ regime were “formally” or “de jure” transferred by the CPA to Iraqi custody.
19. According to some developments publicly reported in the case under consideration, on 1 July 2005, Saddam Hussein and 11 other members of the former Baathist leadership appeared before the Supreme Iraqi Criminal Tribunal’s chief investigating judge. The defendants were reportedly informed of the charges against them and questioned by the investigating judge. The defendants did not have legal counsel present, and no full public transcript of the proceedings exists.
20. On 19 October 2005, the trial before the Supreme Iraqi Criminal Tribunal against Saddam Hussein and seven co-defendants in the Dujail case opened. At the hearing, defense counsel and some of the defendants raised three challenges: the lack of adequate time given to the defense to study the final dossier and prepare its case; the lack of sufficient access to the accused by defense counsel; and concerns regarding the court’s legitimacy and competence. The court granted an adjournment of the trial until 28 November 2005. At the time of drafting this Opinion (30 November 2005) another adjournment had been granted to 5 December 2005.
21. On 20 October 2005, the day following the opening hearing, Mr. Sadoum al-Janabi, counsel of one of Saddam Hussein’s co-defendants, was abducted from his office by armed men. He was subsequently found dead with two bullet wounds to the head. On 8 November 2005, in a drive-by shooting in Baghdad, gunmen killed Mr. Adel Muhammad al-Zubaidi, who represented another defendant in the Dujail trial, and injured a further defense lawyer, Mr. Thamer al-Khuzaie.
22. The source alleges that Mr. Saddam Hussein was initially detained as a prisoner of war, but has not been granted the full privileges of a prisoner of war under the terms of the Third Geneva Convention Relative to the Protection of Prisoners of War of 12 August 1949, In their replies, neither the US Government nor the Iraqi Government provided information on this allegation. It is however well known that from the early days of the conflict in Iraq, the US [page 4] Government recognized that the Geneva Conventions applied comprehensively to individuals captured in the conflict in Iraq. The US Government also gave assurances that it intended to comply with article 5 of the Third Geneva Convention by treating all belligerents captured in Iraq as prisoners of war unless and until a competent tribunal determines that they were not entitled to POW status.1
23. The position of the Working Group is that although the invading coalition stated that the major combat operations finished on 1 May 2003, the total occupation still continued until 30 June 2004. Therefore as Saddam Hussein’s detention took place in the context of an international armed conflict resulting in the invasion of Iraq by the American Government’s forces and the armed coalition, his status is protected by the Third Geneva Convention at least until 30 June 2004.
24. consequently, and in accordance with paragraph 16 of its methods of work and 14 of its revised methods of work,2 the Working Group will not assess the lawfulness of Mr. Saddam’s detention for the period taking place between 13 December 2003 and 30 June 2004, as it occurred during an ongoing international armed conflict and the United States Government recognized that the Geneva conventions applied to individuals captured in the conflict in Iraq.
25. According to the fifth paragraph of Article 119 of the Third Geneva Convention it is permissible that prisoners of war against whom penal proceedings are pending may be detained until the close of such proceedings. The Working Group is also not in a position to assess the conformity to the applicable provisions of international humanitarian law (Arts. 12, 1 18 and 1 19 of the Third Geneva Convention to which the US and Iraq are parties) of the procedure under which Mr. Saddam Hussein was transferred by the CPA to the Interim Government of Iraq. It is, however, not disputed that, while de jute transferred, Mr. Saddam remains de facto in US custody. The United States Government, in its reply to the Working Group, recognises that “the detainee is under the custody of the “Multinational Force Iraq” according to an agreement reached with the Minister of Iraqi Justice although he is under the authority of an Iraqi court”.
26. The Working Group concludes that until 1 July 2004 Saddam 1-lussein was detained under the sole responsibility of the Coalition members as occupying powers or, to be more precise, under the responsibility of the US Government. Since then, and as the Iraqi criminal Tribunal is a court of the sovereign State of Iraq, the pre-trial detention of a person charged before the Tribunal is within the responsibility of Iraq. In light of the fact that Saddam Hussein is in the physical custody of the US authorities, any possible conclusion as to the arbitrary nature of his deprivation of liberty may involve the international responsibility of the US Government.
27. As of the period of detention subsequent to 30 June 2004, Saddam Hussein appeared before the Supreme Iraqi Criminal Tribunal for his first hearing on 1 July 2004. The hearing took place in a secret location and the defendant was not assisted by counsel, In addition, Mr. Saddam Hussein was informed of the charges brought against him. Because he was not assisted by legal [page 5] counsel, he refused to sign the record of proceedings. Therefore, whatever the status under which he was detained prior to the 1 July 2004, he subsequently became a defendant in a criminal procedure, entitled to the protection of the International Covenant on Civil and Political Rights. Both the US and Iraq have ratified the ICCPR and therefore articles 9(3) and 14 ICCPR are applicable to his detention.
28. Although neither the Iraqi Government nor the US Government have provided detailed answers to the allegations concerning the characteristics of the process and the violations affecting the right of the defence, as invoked by the source, the Working Group had access to, and gathered information regarding the Supreme Iraqi Criminal Tribunal and its rules of procedure.
29. This tribunal was established by the Iraqi Governing Council on 10 December 2003, and in the first days of August 2004 the Interim Iraqi Assembly modified the statute that was regulating it. The Working Group does not know the criteria under which the Iraqi Government has nominated the judges who form this tribunal. However, the alleged withdrawal or substitution of several judges is a matter of concern. The atmosphere surrounding the preparation of the trial, which can negatively affect the independence and impartiality of the Tribunal — or at least give the impression that the tribunal lacks the requisite independence and impartiality—, is also a matter of concern to the Working Group. The murder of defence lawyers, the threatening behaviour of the crowd against some of the accused, motivated by past wrongs suffered in the previous regime, might exert an undue pressure on the tribunal. More specifically, the fact that capital punishment was recently re-established and that no appeal is allowed against conviction and sentence, which is in complete disregard of Article 14 paragraph 5 of the International Covenant on Civil and Political Rights, may cast a shadow over the requisite fairness of the process.
30. In his annual report (2005) to the UN General Assembly, Leandro Despouy, the Special Rapporteur on the independence of judges and lawyers, raised his own concerns about the judicial proceedings taking place before the “Iraqi Special Tribunal”. He stated that: “Despite the commitment and personal efforts of the judges and the cooperation provided by several countries in setting up the tribunal, he is concerned that the pressure weighing on the judges and the prevailing insecurity in Iraq may undermine its independence. Moreover, the tribunal itself has its deficiencies, some of which can be traced back to the manner in which it was set up, and in particular to the restriction of its jurisdiction to specific people and a specific time frame; i.e., the tribunal may only try Iraqi citizens for acts committed prior to F’ May 2003, when the occupation began. The tribunal ‘s power to impose the death penalty demonstrates the extent to which it contravenes international human rights standards, Because it was established during an occupation and was financed primarily by the United States, its legitimacy has been widely questioned, with the result that its credibility has been tarnished. The Special Rapporteur urges the Iraqi authorities to follow the example set by other countries with deficient judicial systems by asking the United Nations to set up an independent tribunal which complies with international human rights standards3.”
31. The Working Group shares these concerns. It is also concerned about the criminal proceedings in Saddam Hussein’s case, notably the right to counsel. Apparently Saddam can only See (*150/321) page 15. [page 6] meet his defence counsel in the presence of US officials; it is not clear whether he can meet them often enough to have the significant exchange necessary for such a complicated case, On 19 October 2005, at the hearing, defense counsel and some of the defendants raised three challenges: the lack of adequate time given to the defense to study the final dossier and prepare its case; the lack of sufficient access to the accused by defense counsel; and concerns regarding the court’s legitimacy and competence. The Working Group was also made aware that there are discrepancies between the old Iraqi criminal procedure code and the rules of procedure of the SICT on important points, and it is not clear which law prevails.
32. Since procedural flaws amounting to the violation of the right to a fair trial may, in principle, be redressed during the subsequent stages of the criminal proceedings, the Working Group would find premature to take a position now on this point. The Working Group is fully aware that the ongoing judicial procedure in Iraq is aimed to bringing to justice the highest- ranking leaders of the past Iraqi regime of Saddam Hussein, including himself, for the most serious crimes they allegedly committed against the Iraqi people and some neighboring nations. The crimes for which they are prosecuted comprise, but are not limited to genocide, crimes against humanity and war crimes.
33. As one of the mechanisms of the United Nations Commission on Human Rights, the Working Group is deeply committed to the principle that any violation of human rights, whether committed by politicians or others, must be inquired into and redressed, if necessary by putting the perpetrators to justice. Yet, any procedure aiming to put right gross human rights violation ,as such welcomed by the Working Group, shall scrupulously respect the rules and standards elaborated and accepted by the international community to respect the rights of any person charged of a criminal offence. The violation of the rights of the person charged may easily backfire. This is particularly true in the instant case; any lack of respect for the rights of the leaders of the former regime in the criminal proceedings against them may undermine the credibility of the Justice system of the newly emerging democratic Iraq.
34. The Working Group believes that under the circumstances the proper way to ensure that the detention of Saddam Hussein does not amount to arbitrary deprivation of liberty would be to ensure that his trial is conducted by an independent and impartial tribunal in strict conformity with international human rights standards.
35. On the basis of what precedes, the Opinion of the Working Group is that
a) It will not take a position on the alleged arbitrariness of the deprivation of liberty of Mr. Saddam Hussein during the period of international armed conflict;
b) The Working Group will follow the development of the process and will request more information from both concerned Governments and from the source. In the meantime and referring to paragraph 17(c) of its methods of work, it decides to keep the case pending until further information is received.
Adopted on 30 November 2005.
1. Statement made in April 2003 see e g. “Briefing on Geneva Convention, EPW and war crimes.” 7 April 2003, available at: <www.defenselink.mil/transcripts/2003t04072003_t407genv.html>.
2. “The Working Group will not deal with situations of international armed conflict in so far as they are covered by the Geneva Conventions of 12 August 1949 and their Additional Protocols, particularly when the International Committee of the Red Cross (ICRC) has competence”.
Excerpt from the 2005 Report of the UN Special Rapporteur on the Independence of Judges and Lawyers
United Nations Doc. No. A/60/321
31 August 2005
Item 73 (b) of the provisional agenda*
Human rights questions: human rights questions including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms Civil and political rights, including the questions of independence of the judiciary, administration of justice, impunity
Note by the Secretary-General
The Secretary-General has the honour to transmit to the members of the General Assembly the report of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Leandro Despouy, submitted in accordance with Commission resolution 2005/33 of 19 April 2005.
… [Page 15] …
VII. The Iraqi Special Tribunal
42. At the time of writing (August 2005), the Special Rapporteur is concerned about the judicial proceedings taking place before the Iraqi Special Tribunal. Despite the commitment and personal efforts of the judges and the cooperation provided by several countries in setting up the Tribunal, he is concerned that the pressure weighing on the judges and the prevailing insecurity in Iraq may undermine its independence. Moreover, the Tribunal itself has certain deficiencies, some of which can be traced back to the manner in which it was set up and, in particular, to the restriction of its jurisdiction to specific people and a specific time frame; i.e., the Tribunal may only try Iraqi citizens for acts committed prior to 1 May 2003, when the occupation began. The Tribunal’s power to impose the death penalty demonstrates the extent to which it contravenes international human rights standards. Because it was established during an occupation and was financed primarily by the United States, its legitimacy has been widely questioned, with the result that its credibility has been tarnished.
43. The Special Rapporteur urges the Iraqi authorities to follow the example set by their countries with deficient judicial systems by asking the United Nations to set up an independent tribunal which complies with international human rights standards …
IX. Conclusions and recommendations
… [page 17] …
51. The Special Rapporteur points out that the Iraqi Special Tribunal has certain deficiencies and that its legitimacy has been rightfully criticized, with the result that its credibility has been called into question. He is alarmed that it is empowered to impose the death penalty, that its jurisdiction is restricted to specific persons and a specific time frame, and that it otherwise violates international human rights standards. He hopes that the Iraqi authorities will adopt relevant measures to ensure that the barbaric crimes committed in Iraq will be prosecuted by independent and impartial tribunals, in strict compliance with international human rights standards, as other countries in similar circumstances, such as Sierra Leone, have done with the active cooperation of the international community. As mentioned earlier, mankind has admirably demonstrated that it is possible to overcome legal or material constraints at the national level, combat impunity and dispense justice, on the basis of different international precedents.
Excerpt from the 2006 Report of the UN Special Rapporteur on the Independence of Judges and Lawyers
Economic and Social Council
UN Doc. No. E/CN.4/2006/52
23 January 2006
COMMISSION ON HUMAN RIGHTS
Item 11 (d) of the provisional agenda
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS
OF INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION,
OF JUSTICE, IMPUNITY
Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy
… [Page 17] ….
V. IRAQI SPECIAL TRIBUNAL
56. This has been the subject of analysis and special concern for the Special Rapporteur since 10 December 2003 when the Statute of the Iraqi Special Tribunal (IST) was adopted and throughout its development. Already in his reports to the Commission and the General Assembly in 2005, he had the opportunity to express his reservations regarding the legitimacy of the tribunal, its limited competence in terms of people and time25 and the breach of international human rights principles and standards to which it gives rise. But beyond these serious objections of a legal nature, to which should be added the possibility that the death penalty might be applied, the Special Rapporteur has observed the terrible conditions in which the trial has been taking place and in particular the climate of insecurity in the country, which in turn has affected its development.
57. The level of violence is such that one of the judges and another five candidates for the post have been assassinated. The same fate was met by one of the defence lawyers of Saddam Hussein on the day after the trial began; on 8 November 2005 another defence lawyer was murdered and in the course of the same attack a third one was wounded. Pressure has grown for the trial to be removed from Iraq. The protests of non-Iraqi lawyers have increased, and they maintain they are not allowed enough time to put forward their pleas. All this led at [page 18] the beginning of December 2005 to the temporary suspension of the trial, to the withdrawal and return of the defence team, to the absence of the main person accused and to the possibility that the trial might be continued behind closed doors.
58. Although it is generally agreed that Saddam Hussein should be tried for the atrocities committed, what is needed is an institution which has the material capacity to do so, which respects international human rights standards and which offers the necessary security guarantees, and this is obviously not the case at present. The experience of the various international tribunals established by the United Nations shows that there are alternatives to the IST, even within the Organization, since the trial of the former dictator and his collaborators can offer a valuable model for combating impunity, provided that the rules of due process are respected and that the community at large understands that it is a real act of justice and not the verdict of the victors over the vanquished.
… [page 21] …
77. The notorious shortcomings apparent in the trial of Saddam Hussein and his main collaborators and the climate of insecurity in which the trial is being conducted make it advisable to transfer the trial to an international tribunal with United Nations cooperation.
28 November 2005
Submission Requesting Security Arrangements be put in Place
SECURITY REQUIREMENTS FOR IRAQI DEFENSE COUNSEL
Iraqi defense counsel and their families are living in great danger. They have no protection. They receive death threats frequently. Two of those who appeared in Court on October 18, 2005 have been executed, courageous colleagues Sadoun al-Janabi and Adel al-Zubadi. Several Iraqi T.V. stations regularly broadcast that defense counsel are criminals for representing the accused, fanning the flames of hatred. The identities of some of the defense counsel are known to forces that seek to execute them. The identities of all will become known as the trial proceeds.
By serving as defense counsel they and their families are placed in grave danger. Levels of violence in Iraq continue to grow. Attacks, kidnappings and executions of Sunni men by armed forces, some apparently controlled by the Interior Ministry and other parts of the government, are committing summary executions. Defense counsel are prime targets.
It does not appear that the risk of assassination for defense counsel will decrease anytime soon and will linger for years even after peace and reconciliation among Iraqi people, for which defense counsel work and pray is achieved.
As a consequence, all defense counsel have decided that their families will be safe only if they leave Iraq for the foreseeable future. This decision is reached with great sorrow because they love their country, and their children and grand children will grow up strangers to Iraq.
But defense counsel will not desert their clients. The security requirements they require are as follows:
1. Family Relocation: The immediate relocation of their entire families to include parents, wives, children, grand children and minor, elderly, or handicapped relatives for whom they presently provide care. They seek relocation in an Arab State. All believe Qatar would provide the best security. Arrangements should be made immediately. Dwellings for each family acceptable to them should be found and the families relocated as soon as possible. All persons relocated should be granted political asylum in the state where they relocate and their rights and the rights of offspring born to them to remain in the country to which they are relocated must be equal to citizens of that country.
Funds for the transportation and support of the families should be provided. These must be agreed upon and adjusted periodically to changes in the cost of living where they reside, and right to such funds must be inviolable, unless and until they become self sufficient from their own labors.
Any property the families own in Iraq and must leave behind must be protected until sold.
Defense counsel must be provided funds to travel to visit their families wherever there is time to do so until they are able to safely join them after the conclusion of all trials in which they participate.
Funds for family living expenses in Iraq until families are relocated shall be provided.
2. Immediate Protection for all defense counsel: Defense counsel shall be immediately provided funds for the full time employment of ten trained guards for himself and his family until the family has been safely relocated outside Iraq. Guards shall be authorized to possess machine guns, automatic rifles, and pistols and such other weapons as are needed to defend the family and counsel. Top quality body armor shall be provided. All passes necessary for travel by counsel and family, from both Iraqi and United States authorities, shall be provided, including passes to use roads including single lane roads exclusively for U.S. military and VIPs wherever such roads are available to the Airport, Court, between office, home, court, the international zone, and elsewhere, and passes for expedited passage through all checkpoints. Family members and defense counsel shall receive personal I.D. passes for checkpoints and military assistance.
3. Emergency Telephone Access for U.S. Military Protection: Defense counsel and senior family members shall be provided emergency telephone equipment and access to the U.S. military to call for military protection whenever threatened, attacked, traveling in dangerous zones, or otherwise necessary.
4. Funding for Defense Counsel Expenses of Living and Working: Defense counsel shall be provided funds for his living expenses paid regularly, during the continuation of the trial sufficient to cover all expenses related to his presence in Iraq to serve as defense counsel.
5. Witness Protection and Relocation: Funds for locating, interviewing, transporting, protecting, living expenses and relocating and providing new identities to witnesses for the defense shall be provided by the U.S. in a timely manner.
6. Protection, and funds for Investigators and Experts: Protection and funding for defense investigators and experts to meet the all efforts in preparing and presenting the defense shall be provided by the U.S. in a timely basis.
19 September 2005
Letter to the UN Secretary-General
The Honorable Kofi Annan
Secretary General of the United Nations
Re: Urgent Request for the Immediate Investigation
by the United Nations of the Kidnapping and Murder
of Sadoum al-Janabi
Dear Mr. Secretary-General,
A United Nations investigation of the kidnapping and murder in Baghdad on October 20, 2005 of Sadoun al-Janabi, defense attorney for Awad Hamed al-Bander, the day after the televised exposure of defense attorneys for eight leaders of the former government of Iraq, including President Saddam Hussein, is an urgent necessity.
Investigations by the interim government of Iraq and the United States will have no credibility. Leaders of both governments have repeatedly expressed hostility toward the accused persons and both governments have resorted to criminal violence against supporters of the former government of Iraq.
The New York Times reported Saturday, October 22, 2005 in a first page story:
“Eyewitnesses quoted on Friday on the television station Al Arabiya said that Mr. Janabi’s abductors, dressed in suits and ties, identified themselves as officials of the Interior Ministry, which has faced accusations in recent months that it has harbored Shiite death squads that hunt down members of the Sunni Arab community with links to Mr. Hussein’s years in power.” N.Y. Times, October 22, 2005, at p. 10.
Mr. Janabi, a Sunni, was reported to be a personal friend of President Hussein. He spoke out repeatedly during the hearing on October 19, once accusing the prosecutor of making a “political speech.”
President Bush failed to answer a letter from our committee dated June 15, 2005 in which we addressed the necessity of “...immediate, full and secure access to President Saddam Hussein for defense counsel and their assistants and investigators” and security measures to enable them “to perform their work safely” without interference in preparing and presenting the defense case.
Previously President Bush, Secretary Rumsfeld and the Commanding Generals of U.S. Forces in Iraq had consistently rejected all requests to consult with prisoners, including former Deputy Prime Minister Tariq Aziz beginning in May 2003, and later with President Saddam Hussein beginning in December 2004, keeping Saddam Hussein in complete isolation for more than a year with only one limited contact thereafter with individuals who were chosen or approved by the U.S.
As the first day of proceedings began, President Bush announced that he is “confident” that President Saddam Hussein will get a fair trial. See London Herald Sun, October 19, 2005.
He earlier described Saddam Hussein as “the guy who tried to kill my dad.”
The truth about the kidnapping and murder of Mr. Janabi is critically important to the future of Iraq, peace in the Middle East and beyond and “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”
The failure of the U.S. and Iraq to provide protection to the defense and access to the defendants requires the transfer of any trials to a legal international forum if there is to be fairness in appearance and fact.
Ahmed Ben Bella, former President of Algeria
Tun Dr. Mahathir Mohamad, former Prime Minister of Malaysia
Roland Dumas, former Foreign Minister of France
Ramsey Clark, former Attorney General of the United States
29 January 2006
Repeated Request for Security
Att. The Presiding Judge of the Tribunal which we do not recognize its legality.
Submitted by Mr. Kaleel al-Dolami
On behalf of the Defense Committee, we would like to state before this Tribunal and for the world the following arguments of our challenge:
We are committed to defend our clients and we will never abandon them.
We cannot continue the proceedings before this tribunal until security for the lawyers and their families is provided in an affirmative manner. Also all the essential conditions for a fair trial should be provided.
Since its creation, this tribunal could not meet the standards of an independent, impartial and legal court of law:
Mr. Rizgar Amin has resigned and he declared that interference of the political authority and other parties in the work of the tribunal has led him to resign.
Although Judge Saeed Hammashi has been a part of this illegal court since it was established, he was recently removed under the pretext of Debaathification.
Judge Raouf Rasheed Abdul-Rahman has been appointed as a presiding judge and a session on Jan. 24th 2006 was determined. After days of traveling from many Arab and foreign states, we had to wait for more than seven hours. A clerk of the tribunal came to us with two packs of paper in his hand, they were the submissions that we have submitted to the tribunal on Dec.21, 2005. The documents were divided into two parts. The clerk handed the first part to us saying that we can publish it in any of the political papers, or that we may read it before a political conference. He kept the second part with him saying that they will respond to it. We were astonished at such an act, and asked the clerk repeatedly whether he was sure that the presiding judge had said this and he said:” Yes”. We said to him:” you can either review them as they were presented or reject them totally by a reasoned decision issued by your court”. Could the court be dysfunctional, feeble and unable to deal with the case before it? We are not astonished for this state of affairs because the tribunal is a creation of the occupying power and not the Iraqi people.
Is it reasonable for the president of the U.S.A. to interfere in the proceedings of the court by proclaiming, “That the court is on the track and that the butcher will have the punishment he deserves”. Bush violated one of the principles of justice, which is provided for in the constitution of the U.S. and all constitutions of the states of the world, i.e.the presumption of innocence. The question is: “how does Bush know that H. E. President Saddam has been found guilty of the false allegations attributed to him?” We hope that Bush will refrain in the future from forcing his electoral problems and political purposes and aims on this illegal trial. Besides, is there any law that permits this unjustified interference?
Mr. Rizgar Amin, the former president of the trial panel, was accused of being too slow and too lenient with the defendants. Later, Raed Juhi, the investigative judge, stated that the trial would end within two months. Everyone knows that an investigation judge is not entitled to make any public statements or to act as a spokesperson for the tribunal. Such statements violate his responsibilities. By doing so, he has deprived our clients from their right to defend themselves as provided for in local and international laws.
The tribunal is indecisive in making decisions in important issues such as the legality of the tribunal, the protection of the defense lawyers and their families and making decisions on the various submissions that were submitted before it, including the legal request to establish an investigation in torturing our clients. The detainees and the prisoners of war were tortured physically. While physical torture discontinued, psychological torture continued. Investigations were conducted based on avowed enmity of some judges against our clients. Such investigations are defected so we demand that all previous investigations be deemed as null and void, and that judges who have a vowed enmity with our clients should not conduct such investigations in the future. We have demanded also, that all the letters and information that were exchanged between the American investigators, the FBI and other elated parties should be revealed. The tribunal has not responded to our requests about torturing our clients.
That we, and the Iraqi people should be informed about the details of the investigation that the appointed government and its establishments have promised to conduct about the terrorist criminals and killers who have executed our colleagues: martyr Saadoun Al-Janabi and martyr Adel Al-Zubaidi. The reasons for the delay in revealing the results of such investigations should also be made public.
The tribunal continues to refuse to respond to the Defense’ requests to enable the defense team to meet their clients according to time schedules that suit the defense rather than the detaining power. This serves the right of the defense lawyers to meet their clients in any time. This right should not be subject to the unpredictable mood of the detaining power or any other party.
The Defense Committee for the Iraqi
President Saddam Hussein
19 February 2006
Decision of President of the IST
[English translation of Arabic original]
Decision of 19 February 2006 Concerning Judge Abdel Rahman
Applicant/lawyer Kaleel Dolami, President of the Defense Committee in the Dujail Case.
Lawyer Kaleel Dolami has submitted argument to disqualify the Presiding Judge of the First Trial Panel on 15 February 2006.
The Presiding Judge Raouf Rasheed Abdel Rahman replied that he has no bias against the defendant Saddam Hussein or against any other defendant in the Dujail case, and that impartiality and justice are his guiding principles
Upon review and consideration, it has been found that article 95/1 of the Code of Civil Procedure, law no. 83 of 1969, provides that a disqualification request must be made before entering onto the merits of the case, otherwise it shall be dismissed…
As the applicant has made his request after the merits stage of the case has been reached, it is decided that his request shall be dismissed and the applicant should be fined an amount of one thousand Iraqi Dinars in accordance with article 96/4 of the said law.
This decision has been made in agreement as for the subject and by majority on 19 February 2006.
The President of the Court
6 April 2006
Decision of Appeals body of the IST
[English translation of Arabic original]
Decision of 3 April 2006 Concerning Presiding Judge of the First Trial Panel
The Appellate Chamber of the Iraqi High Criminal Court on 3 April 2006. The session was presided over by the President and two other judges in the name of the people and makes the following decision:
Applicant/lawyer Kaleel Dolami, President of the Defense Committee for the defendant Saddam Hussein al-Majeed.
Lawyer Kaleel Dolami submitted a request to disqualify the Presiding Judge of the First Trial Panel Judge Raouf Rasheed Abdel Rahman pursuant to article 96/2 of the Code of Civil Procedure and Rules number 7 and 8 of the Rules of Procedure on the grounds hat the Presiding Judge, during the session of 15 March 2006 addressed his client by saying that he is accused of killing innocent persons in the Dujail case and that he was the cause of the injustice inflicted upon the Iraqi people because of the oil coupons. The judge also threatened to have any defense lawyer who breached the law handcuffed.
Judge Raouf Rasheed Abdul Rahman replied that the statements attributed to him do not constitute a biased opinion.
Upon review and consideration it has been found that the statements included in the disqualification request do not reflect a pre-mature opinion in accordance with article 3/93 of the Code of Civil Procedure. This request is dismissed and the applicant shall be fined two thousand Iraqi Dinar in accordance with article 96(4) of the Code of Civil Procedure. The decision is made by agreement on 3 April 2006.
The President of the Court
26 March 2006
Affidavit by Jordanian Lawyer of Statements of Bias Against President
Made By IST-Appointed Lawyer Who Made Closing Statement for Defense
[English translation of Arabic original]
Arte France and KS Visions DVD
Attached as separate document.
 The arguments made in this introduction are elaborated and substantiated with extensive citations in the following text and annexes. This introduction is merely intended to lay out the subsequent arguments in summary form.
 Judgment of the Nuremberg International Military Tribunal, 1949, reprinted in Trial of the Major War Criminals before the International Criminal Tribunal, Nuremberg, Vol. 1, p. 186 (1947).
 Para. 8(g) of UNSC Res. 1483, UN Doc. S/RES/1483 (22 May 2003).
 See National Security Decision Directive No. 139 of 5 April 1984 (still partially classified).
 See, for example, Ramsey Clark, Challenge to Genocide: Let Iraq Live (New York: International Action Center, 1998); Ramsey Clark et al., The Children Are Dying: the Impact of Sanctions on Iraq (New York: International Action Center, 1998). Both these works argue that the people of Iraqi must be put ahead of narrow-sighted United States foreign policy objectives.
 Garfield, R., Morbidity and Mortality among Iraqi Children from 1990 through 1998: Assessing the Impact of the Gulf War and Economic Sanctions (March 1999) (a report evaluating the various studies on child mortality in Iraq and concluding that “Sustained increases in young child mortality are extremely rare in this century. Such a large increase as
that found here [in Iraq] is almost unknown in the public health literature. In Iraq, a rate of mortality among under-five-year-olds in excess of 80 per one thousand births was last experienced about twenty years ago. Living conditions in Iraq, thus, represent a loss of several decades of progress in reducing mortality. This is a social disaster which should be urgently addressed. To the degree that economic sanctions complicate access to and utilization of essential goods, sanctions regulations should be modified immediately. In addition, the international community should urgently make available to Iraq materials and expertise to improve child health programs and policies in the fields of feeding and weaning practices, diarrhea and respiratory infection recognition and care, and maternal and child health care, family income, and education” at 38 [footnotes omitted]). Also see Food and Agriculture Organization (FAO), Evaluation of Food and Nutrition Situation in Iraq, Iraq, Doc. No. TCP/IRQ/4553 (Rome, Italy, 1995); Harvard Study Team, “Special Report: The Effect of the Gulf Crisis on the Children in Iraq,” 325 New England Journal of Medicine 997-980 (1991); Alberto Arscherio, Robert Chase, Tim Cote et al Special Article: Effect of the Gulf War on Infant and child Mortality in Iraq. The New England Journal of Medicine Vol 327(1 3), p.931-936, 1992; “International Notes: Public Health Consequences of Acute Displacement of Iraqi Citizens-March-May 1991,” 40(26) Morbidity and Mortality Weekly Review 443-446 (1991); Physicians for Human Rights, “The Children of Iraq on the Brink of Disaster,” Briefing Memorandum (revised), Somerville, MA, USA (1991); Schaller, E., and Nightingale, E., “Children and Childhoods: Hidden Casualties of War and Civil Unrest,” 268 Journal of the American Medical Association 642-44 (1992); Jeremy Bowen, “World, Middle East: Iraqis blame Sanctions for Child Deaths,” BBC accessed at news.bbc.co.uk (12 August 1999); Reuters, “UN Says Sanctions have killed some 500,000 Iraqi children” (21 July 2000) (quoting Ms Anupama Rao Singh, country director for the UNICEF stating that `”In absolute terms we estimate that perhaps about half a million children under 5 years of age have died, who ordinarily would not have died had the decline in mortality that was prevalent over the 70s and the 80s continued through the 90s”).
 Several Senior United Nations staff resigned because of the deadly impact of the sanctions including Mr. Denis Halliday, who had been appointed United Nations Humanitarian Coordinator in Iraq at the Assistant Secretary-General level in 1997; his successor Mr. Hans von Sponeck (who stated that he “cannot any longer be associated with a programme that prolongs sufferings of the people and which has no chance to meet even the basic needs of the civilian population”); and Ms Jutta Burghardt, head of the World Food Program in Iraq.
 Statement of Madeleine Albright on “60 Minutes,” CBS (10 May 1986).
 “Statement of White House Press Secretary Ari Fleisher on 24 March 2003” accessed at http://www.whitehouse.gov/news/releases/2003/03/20030324-4.html (12 September 2005).
 William H. Taft, IV, and Bushwald, T.F., “Preemption , Iraq and International Law,” 77, 83 in Falk , R., Gendzier, I., and Lifton, R.J., (eds.), Crimes of War: Iraq New York, USA: Nation Books (2006).
 Mathew Rycroft, “Memorandum to David Manning recording a meeting with Prime Minister Tony Blair,” (marked Secret Strictly Personal – UK Eyes Only, also known as the “Downing Street Memo”), SI 95/02 (23 July 2002).
 See, for example, Yearbook of the International Law Commission, Part II, 247-9 (1966) (Commentary on draft Art. 50 of the Draft Articles on the Law of Treaties) and Military and Paramilitary Activities Case, ICJ Reports pp. 100-101 (1986). Both authoritative sources find that the prohibition of the use of force is jus cogens.
 Center for Economic and Social Rights, UN Sanctioned Suffering: A Human Rights Assessment of United Nations on Iraq1 (New York: Center for Economic and Social Rights, May 1996).
 International Study Team, Aftermath of the Gulf War on Civilians (March 1991) (the assessment of the rationing system was done by leading development economists Professor Jean Dreze and Dr. Haris Gazdar, working with a team of independent researchers, including but not limited to Iraqis).
 Roberts, L., Lafta, R., Garfield, R., Khudhairi, J., Burnham, G., “Mortality before and after the 2003 invasion of Iraq: cluster sample survey,” 364 The Lancet 1857 (20 November 2004).
 On 5 March 2003 France, Germany and Russia issued a joint declaration. Available at http://www.un.int/france/documents_anglais/030305_mae_france_irak.htm. China’s Foreign Minister Tang Jiaxuan's stated on 6 March that “China's position is consistent with the joint statement. China endorses and supports the content of the joint statement.” Martin Parry, “Beijing Vows to Block New UN War Resolution,” Middle East Online (6 March 2003). The European Parliament condemned any unilateral strike against Iraq on 9 January 2003 in a Resolution; the United Nations Secretary General Kofi Annan condemned the attack as illegal in a public statement on 16 September 2004; the Arab League, the African Union, and Organization of Islamic Conferences with a combined membership of more than 125 states all condemned the war as illegal; the majority of Permanent Member states in the United Nations Security Council (France, China and Russia) and the two most populous states in the world, China and India, both unequivocally condemned the invasion as illegal as did numerous other states, including, Canada, Belgium, Germany, Switzerland, The Vatican, India, Indonesia, Malaysia, Brazil, and Mexico. Numerous legal commentators also condemned the attack as illegal: News.com.au, "Iraq Invasion Violated UN Charter" (7 August 7, 2003); Statement by 500 Law Professors for the Rule of Law; Severin Carrell and Robert Verkaik, "War on Iraq Was Illegal, Say Top Lawyers," The Independent (25 May 2003); Peter Schwarz, "International Legal Experts Regard Iraq War as Illegal," World Socialist Web Site (March 26, 2003); Center for Economic and Social Rights, "Tearing up the Rules: The Illegality of Invading Iraq," (March 2003); Henry Michaels, "Canadian Law Professors Declare US-Led War Illegal," World Socialist Web Site (22 March 2003); Robin Miller, "This War Is Illegal," (21 March 2003); Middle East Online, "Chirac: Iraq War Breaches International Law" (21 March 2003); Irwin Cotler, "Is the War on Iraq illegal?" The Globe and Mail (21 March 2003); Jim Lobe, "Law Groups Say U.S. Invasion Illegal," OneWorld.net (21 March 2003); Joan Russow, "U.S. Engaged in an Illegal Act," OneWorld.net (20 March 2003); International Appeal by Lawyers and Jurists against the "Preventive" Use of Force (2003); Michael C. Dorf, "Is the War on Iraq Lawful?" Findlaw (19 March 2003); Emma Thomasson, "Iraq War Illegal but Trial Unlikely, Lawyers Say," Reuters (19 March 2003); Hilary Charlesworth and Andrew Byrnes, "No, This War Is Illegal, The Age [Melbourne, Australia] (19 March 2003); Matthew Happold, "A Talented Lawyer Arguing a Weak Case," The Guardian (17 March 2003); Keir Starmer, "Sorry, Mr Blair, But 1441 Does Not Authorise Force," The Guardian (17 March 2003); Greenpeace, "Analysis of the US Legal Position on the Use of Force Against Iraq" (16 March 2003); Richard Norton-Taylor, "Law Unto Themselves,” The Guardian (14 March 2003); Robert Verkaik, "'Illegal War' Could Mean Soldiers Face Prosecution," The Independent (12 March 2003); Anthony Howard, "War Against Iraq--The Legal Dilemma,” The Times [London] (11 March 2003); Mark Littman, "A Supreme International Crime," The Guardian (10 March 2003); Johanna Neuman, "Pope's Emissary Meets With Bush, Calls War 'Unjust'," Los Angeles Times accessed at http://www.commondreams.org/headlines03/0306-04.htm (6 March 2003); "The UN Must Take Mr Blix's Report Seriously—by Voting Against Military Action," The Independent (editorial) (8 March 2003); "War Would Be Illegal," The Guardian (7 March 2003); Michael White and Patrick Wintour, "No Case for Iraq Attack Say Lawyers," The Guardian (7 March 2003); "War With Iraq 'Could Be Illegal,'" BBC (6 March 2003); Alan Elsner, "US War Without UN Approval Would Be Seen as Illegal," Reuters (6 March 2003); James Conachy, "Australian Legal Experts Declare an Invasion of Iraq a War Crime," World Socialist Web Site (27 February 2003); Bill Bowring, "Bush and Blair Must See Law Has a Life of Its Own," AlertNet (21 February 2003); Julie Mertus, "The Law(?) of Regime Change," JURspecial Court (www.jurist.com) (20 February 2003); Thalif Deen, "Of Man and God and Law," Asia Times (14 February 2003); Nathaniel Hurd, "UN SCR 1141 and Potential Use of Force Against Iraq," (6 December 2002); "In The Matter of the Potential Use of Armed Force by the UK Against Iraq and in the Matter of Reliance for that Use of Force on United Nations Security Council Resolution 1441," Campaign for Nuclear Disarmament, (November 2002); "Lawyers Statement on UN Resolution 1441 on Iraq," (27 November 2002); Mary Ellen O'Connell, "UN Resolution 1441: Compelling Saddam, Restraining Bush," JURspecial Court (www.jurist.com) (21 November 2002); Marjorie Cohn, "UN Resolution 1441: Blackmailing the Security Council," JURspecial Court (www.jurist.com) (21 November 2002); George P. Fletcher, "Did the UN Security Council Violate Its Own Rules in Passing the Iraq Resolution?" CounterPunch (6 November 2002); Public Interest Lawyers on behalf of Peacerights, “Legality of Use of Force against Iraq” (10 September 2002); and Mary Ellen O'Connell, “The Myth of Preemptive Self-Defense,” (August 2002).
 Michael Scharf, who has both criticized and praised the court, but who is know as a defender of the court, benefits from the exposure and funding provided to academic projects to which he is connected. Mark Ellis and the International Bar Association [IBA] of which he is the Executive Director, has benefited handsomely from grants given to train the judges and other lawyers in Iraq. See, for example, House of Commons, International Development Committee, Development Assistance in Iraq: Interim Report (Evidence), at p. 58 (7th Report of Session 2004-05) (Indicating that between September and March 2005 the IBA was given a grant of £1,300,000 GBP (approximately 2.4 million USD) to provide support (training) to the Iraqi Special Tribunal.
 Authorization for Use of Military Force Against Iraq Resolution of 2002, p. 116, Stat. 1498, Public Law 107-243, 107th Congress, H.J. Res. 114 (16 October 2002).
 “United States President George W. Bush’s Statement to the Nation from the Oval Office of the White House” at 22:16 EST on 19 March 2003 accessed at www.whtehouse.gov on 21 March 2003. Also see Statement by White House Press Secretary Ari Fleisher on 24 March 2003 accessed at http://www.whitehouse.gov (12 September 2005).
 “Statement by Ambassador John D. Negroponte, United States 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).
 Judgment of the Nuremberg International Military Tribunal, 1949, reprinted in Trial of the Major War Criminals before the International Criminal Tribunal, Nuremberg, vol. 1, p. 186 (1947).
 Statements of the United States government before the International Court of Justice in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits), I.C.J. Reports 1986, p. 14 at p. 99, para. 187.
 International Law Commission Yearbook, Vol. II, 247 (1966) reaffirmed by the International Court of Justice in the Nicaragua Case, infra, at para. 187, p. 99.
 94 L.N.T.S. 57 (1929)
 Report of the 38th Conference of the International Law Association Budapest 67 (1934).
 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), I.C.J. Reports, No. 70, para. 181, p. 97 (27 June 1996),
 International Law Commission Yearbook, vol. II, 247 (1966).
 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits), I.C.J. Reports 1986, p. 14 at pp. 100-101, para. 190.
 Article 53 of the International Law Commission’s Draft Articles on State Responsibility of States for International Wrongful Acts, International Law Commission, Draft articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the work of its Fifty-third session, U.N. GAOR, 56th Sess. Supp. No. 10 (A/56/10), chp.IV.E.1 (2001)
 United Nations Conference on the Law of Treaties, First Session, UN. Doc. A/CONF.39/11 (1969).
 UNGA Res. No. 2625(XXV), adopted without vote, (24 October 1970).
 Donald H. Berchoff, (Lieutenant Colonel in the United States Air Force ), “Critical Analysis of US Policy and Options in Dealing with Iraq,” National Defense University National War College, United States Air Force Doc. No. 5601/5602, p. 4 (2003) (citing the Report signed by CIA Deputy Director John McLaughlin).
 Explanation of Vote by Ambassador John D. Negroponte, United States Permanent Representative to the United Nations, following the vote on the Iraq Resolution, Security Council, November 8, 2002, United States permanent Mission to the United Nations Press Release No. 187(02) (Revised) (8 November 2002).
 On 5 March 2003 France, Germany and Russia issued a joint declaration. Available at http://www.un.int/france/documents_anglais/030305_mae_france_irak.htm. China’s Foreign Minister Tang Jiaxuan's stated on 6 March that “China's position is consistent with the joint statement. China endorses and supports the content of the joint statement.” Martin Parry, “Beijing Vows to Block New UN War Resolution,” Middle East Online (6 March 2003).
 The European Parliament condemned any unilateral strike against Iraq on 9 January 2003 in a Resolution, European Parliament Resolution, EP Res. PS_TA (2003)0032 (9 January 2003); the United Nations Secretary General Kofi Annan condemned the attack as illegal in a public statement on 16 September 2004, UN News Service, “Lessons of Iraq war underscore importance of UN Charter – Annan” (16 September 2004); the Arab League, the African Union, and Organization of Islamic Conferences with a combined membership of more than 125 states all condemned the war as illegal; the majority of Permanent Member states in the United Nations Security Council (France, China and Russia) and the two most populous states in the world, China and India, both unequivocally condemned the invasion as illegal as did numerous other states, including, Canada, Belgium, Germany, Switzerland, The Vatican, India, Indonesia, Malaysia, Brazil, and Mexico. Also see cited sources at note 16.
 See sources cited in note 16.
 Andrew Grice, “Thatcher reveals her doubts over basis for Iraqi war,” The Independent (14 October 2005), accessed at http://news.independent.co.uk/uk/politics/article319542.ece (14 October 2005).
 See “Opposition to the Iraq War” in Wikipedia at en.wikipedia.org for an updated list of opposition to the war.
 This resolution was accepted by Iraq on 6 April 1991 in a letter from its Minister of Foreign Affairs to the UN Secretary-General.
 Para. 10 of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, UN Doc. A/RES/2625 (XXV) (24 October 1970) (widely agreed to reflect customary international law) and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p. 16, at pp. 54-56, paras. 117-127.
 ILC 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.
 Ratified on 29 June 1934, T.S. 881, 49 Stat. 3097, entered into force for the United States on 26 December 1934.
 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge: Grotius Press, 1987, p. 389.
 According to CPA Doc. No. CPA/ORD/9 Dec 2003/48.
 CPA Doc. No. CPA/REG/16 May 2003/01.
 Speech by United States President George W. Bush on 14 December 2005 available at www.whitehouse.gov (accessed 15 December 2005); Speech by United States President George W. Bush on 12 December 2005 available at www.whitehouse.gov (accessed 15 December 2005); Speech by United States President George W. Bush on 7 December 2005 available at www.whitehouse.gov (accessed 15 December 2005).
 CPA Doc. No. CPA/ORD/9 Dec 2003/48.
 6 UST 3516, 75 UNTS 287 (1950).
 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),  ICJ Reports 16 at para. 119 and 120-125.
 UNSC Resolution 1483, UN Doc. S/RES/1483 (22 May 2003).
 12 August 1949, 6 UST 3516, 75 UNTS 287 (1950)
 See art. 43 of the Hague Regulations.
 Commentary to the (IV) Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, p. 306 (1958, under the editorship of Jean S. Pictet) (hereinafter “Commentary to GC IV”).
 Id. at 335.
 Id. at 337.
 Not only does the United States government control Iraqi militarily. Not only is Iraq dependent on United States aid. But the United States government also excluded from all political posts in Iraq all those individuals who oppose its illegal invasion of Iraq and those whose political views it does not agree. The interference of the occupying powers in the Iraqi government has been apparent from its formation in early 2006. On 1 February 2006 the United States intervened in the negotiations over the government with American Ambassador to Iraq Zalmay Khalilzad threatening to cut aid saying “[w]e are saying, if you choose the wrong candidate, that will affect US aid.” Gareth Porter, “US shifts Iraq loyalities,” Asia Times (1 February 2006). The Foreign Minister of the United Kingdom, a staunch United States ally participating in the occupation of Iraq, in talks with Iraqi President Jalal Talabani also threatened to cut aid and perhaps even withdraw British troops unless the Iraqis choose persons for their government who were acceptable to the United Kingdom. See Anne Penketh, “US threatens to cut aid to Iraq if new government is sectarian,” The Independent (UK) (7 August 2006).
 Iraqi Law No. 160 of 1979 published in Alwaqai Aliraqiya, No. 2746 of December 1979.
 CPA Doc. CPA/ORD/16 May 2003/01.
 Mariam Karouny, “Iraqi says to ask U.N. to end US Immunity,” Reuters, Monday, 10 July 2006 at 5:07 p.m. EST accessed at today.reuters.com (12 July 2006).
 Iraqi Law No. 160 of 1979 published in Alwaqai Aliraqiya, No. 2746 of December 1979.
 UN SCOR, 58th Sess., 4844th mtg., UN Doc. S/RES/1511 (2003)
 Record of Negotiations of the ICCPR, UN Doc. A/2929, Chap. VI, sec. 77
 Adopted by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, UN Doc. A/CONF.121/22/Rev.1 at 59 (1985).
 Report of the Working Group on Arbitrary Detention, UN Doc E/CN.4/1996/40 at 26.
 999 UNTS 171 (adopted 1966).
 993 UNTS 3 (adopted 1966).
 1577 UNTS 3 (entered into force 1990).
 1249 UNTS 13 (entered into force 1980).
 660 UNTS 195 (entered into force 1969).
 TS No. 539, 1 Bevans 631, signed at the Hague, 18 October 1907, entered into force 26 January 1910.
 75 UNTS 135 (1950).
 75 UNTS 135 (1950).
 O.A.S. Doc. OEA/SER.L.V/II.82 doc.6, rev. 1 at 17 (1992).
 See, generally, Muhammad Salim Awa, Punishment in Islamic Law: A Comparative Study. Indianapolis: American Trust Publications (1982), M. Cherif Bassiouni, (ed.), The Islamic Criminal Justice System. London: Oceana, (1982): Wael B. Hallaq, Law and Legal Theory in Classical and Medieval Islam. Brookfield, Vt.: Variorum (1995).
 See art. 9 of the Constitution of the Kingdom of Iraq (1925) and art. 20 of the Iraqi Constitution (1990). Also see art. 15 of the Transitional Administrative Law (2004), and art. 19 of the Iraqi Constitution of 2005 (adopted under occupation).
 See, for example, Prosecutor v. Furundžija (Appeal), ICTY Appeals Chamber, Case No. IT-95-17/1-A (21 July 2000) at para. 177.
 Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence 480, Cambridge, UK: Cambridge University Press (2002).
 See Human Rights Watch, “Past U.S. Criticism of Military Tribunals,” Washington, D.C, USA: Human Rights Watch (28 November 2001).
 A decision by the Court dated 19 February 2006 rejected this application claiming that it should have been submitted before 19 October 2005, an impossibility as the judge whose disqualification was sought did not join the IST until February 2006. This decision contained no explanation as to how defense could were suppose to have challenged the impartiality of a judge who was not on the IST and who was entirely unknown to them. Moreover, the decisions failed to respond to any of the issues raised in the disqualification motion, including witnesses allegations that the judge had said that President Saddam Hussein was guilty should be executed without trial.
 This motion received no response as it was only submitted to the IST on 20 February 2006, the day after the decision to the 1 February 2006 motion was apparent given according to its date (19 February 2006) and despite the fact that the decision of 19 February 2006 was no delivered to defense counsel until mid-March 2006.
 CPA Doc. No. CPA/REG/16 May 2003/01.
 Ryan J. Leibl, “Rule of Law in Postwar Iraq: From Saddam Hussein to the American Soldiers involved in the Abu Ghraib Prison Scandal, What Law Governs Whose Actions?” 28(1) Hamline Law Review 92, 94 (2004).
 CPA Doc. No. CPA/REG/13 July 2003/06.
 Jean-Pierre Krief, “Saddam Hussein: The Trial,” for Arte France and KS Visions (French and English) (2005).
 Human Rights Watch, The Former Iraqi Government on Trial: A Human Rights Watch Briefing Paper 3 (16 October 2005).
 AI Doc. No. MDE 14/007/2005 (13 May 2005).
 CPA Doc. No. CPA/ORD/9 Dec 2003/48.
 Doc. No. CPA/REG/13 July 2003/06.
 CPA Doc. No. CPA/ORD/9 Dec 2003/48.
 Doc. No. CPA/REG/16 May 2003/01.
 Bassouni, C.M., Post-Conflict Justice in Iraq: An Appraisal of the “Iraq Special Tribunal,” 38 Cornell International Law Journal 327, 345 (2005).
 CPA Order 17 (entitled “Status of the Coalition Provisional Authority, MNF—Iraq, Certain Missions and Personnel in Iraq”) (27 June 2004).
 Bassouni, C.M., Post-Conflict Justice in Iraq: An Appraisal of the “Iraq Special Tribunal,” 38 Cornell International Law Journal 327, 346, fn 27(2005).
 See Will Dunham, “US Formally Declares Saddam Enemy Prisoner of War,” Reuters (9 January 2004) accessed at http://www.commondreams.org/ and “U.S. Gives Saddam POW Status,” BBC News (9 January 2004) accessed at http://news.bbc.co.uk/ ("A Pentagon spokesman said he was given the status as he was the leader of the "old regime's military forces").
 For example, on 20 May 2005 the Sun (UK) newspaper published photographs of Iraqi President Saddam Hussein claming to have received these photographs from the United States military.
 Associated Press, “Hussein Judge Target of Plot” (28 November 2005).
 Associated Press, “Chief Judge in Hussein trial steps down” (15 January 2006) and Borzou Daragahi and Saad Fakhrildeen, “The World; Allawi Flees Mob in Najaf, Says He Escaped Assassins; Officials dispute the ex-Iraqi leader's claim; the melee worsens strife between Shiite factions. Plot to attack site of the Hussein trial is reported,” Los Angeles Times, Part A, p. 3 (5 December 2005) (stating that “one of the five trial judges has recused himself after a document surfaced linking a defendant to the killing of the jurist's brother, a court official said. An alternate judge was reportedly ready to step in”).
 Hamza Hendawi, “Saddam Lashes out at U.S. as Trial Resumes,” Associated Press (28 November 2005).
 Ahmed Rasheed, “Government tries to persuade Saddam judge not to quit,” Reuters (15 January 2006).
 Middle East Online, “Rizkar Mohammed Amin left his position for good, Hameesh named as new chief Saddam judge, New Chief Judge will hold post temporarily until judges elect new permanent replacement,” at www.middlie-east-online.com (First Published 2006-01-17, Last Updated 2006-01-17 09:50:54).
 BBC News (Middle East), “New Saddam judge ‘should resign’,” Wednesday, 18 January 2006 at 19:04 GMT.
 Hamza Hendawi and Qassim Abdul-Zahra, “Saddam trial plunges deeper into disarray,” Jordan Times p. 1 (25 January 2006).
 Id. at para. 5
 Hamza Hendawi, “Saddam Trial Goes On Without Defendants,” Associated Press (2 February 2006).
 AFP and Middle East Times, “Court to Rule this Week on Saddam–less Trial” (7 February 2006).
 KUNA, “Saddam trial judge dies of heart attack,” KurdishMedia.com (10 February 2006).
 Louise Roug and Borzou Daragahi, “Baghdad Violence Upstages Saddam Trial Resumption,” LA Times (17 April 2006).
 At one point Judge Abdel Rahman criticized one of the defense lawyers for “daring to wear a red tie in this courtroom.” All the lawyers were required, and were wearing, the usual bar robes over their suits.
 The statements in this paragraph are based on defense counsel’s notes and recollection as no transcript has ever been provided despite repeated requests by defense counsel and the fact that the there is extensive audio visual surveillance of the courtroom by the United States authorities who could easily produce a transcript. By contrast, transcripts are provided the same day at the International Criminal Tribunal for the Former Yugoslavia.
 On 19 February 2006, the President of the IST issued a decision saying that the application to disqualify Judge Abdel Rahman should have been made before the proceedings on the merits had begun on 19 October 2005. On 3 April 2006, an appeals panel of the IST upheld this decision. Neither of these decisions was communicated to defense counsel until late in March 2006. Neither decision was based on any decision by the trial chamber of the IST because that chamber had refused to determine its own competence. Moreover, it was, of course, impossible for defense counsel to make and application to remove Judge Abdel Rahman on 19 October 2005, as Judge Abdel Rahman did not join the court until February 2006. At the start of proceedings on the merits in October 2005 Judge Abdel-Rahman was not known to the defense lawyers and was not even one of the judges trained by foreign experts to be a judge of the IST. The reasoning of the President and appellate body of the IST contained no reasoning as required by the right to fair trial under international human rights law. In addition, defense counsel were not allowed to make any oral representations and the most experienced lawyers on the defense team were not even provided a copy of the 19 February and 3 April 2006 decisions until June 2006.
 This supplementary motion was apparently not even considered by the IST as the decision on the 1 February 2006 motion was handed down 19 February 2006, the day before this supplementary motion was submitted.
 John F. Burns, “Lawyer's Slaying Raises Questions on Hussein Trial,” Late Edition - Final, Section A, p. 1, Col. 1, New York Times (22 October 2005) (also reporting the Al-Arabiya interviews).
 See, for example, Associated Press, “A Second Lawyer in Saddam Trial Killed,” on NewsMax.com Wires (9 November 2005).
 Solomon Moore, “Killings Linked to Shiite Hit Squads in Iraqi Police Force,” Los Angeles Times (29 November 2005); Paul Garwood, “Iraqi Sunni party says govt-backed hit squads should be confronted after raid,” Associated Press (24 January 2006); and Paul Martin, “Iraqi interior chief aims to end corruption, rights abuses,” Washington Times (11 January 2006).
 Statement attributable to the Spokesman for the Secretary-General on Iraq issued by United Nations Headquarters in New York on 8 November 2005.
 See, for example, Ahmed Rasheed and Michael Georgy, “Saddam's lawyer pays price for principles,” Reuters (21 June 2006).
 Adam Ereli, Deputy Spokesman for the United States Department of State, Daily Press Briefing, Washington, D.C. USA, June 21, 2006, 12:40 p.m. EDT.
 John F. Burns and Christine Hauser, “Third Lawyer in Hussein Trial Is Killed,” New York Times (21 June 2006).
 Ahmed Rasheed, “Saddam’s daughter and wife on wanted list,” Reuters, Sunday, July 2, 2006.
 Bushra Juhi, “Saddam Trial Adjourns 'Til October Verdict,” Associated Press (27 July 2006).
 The position of the defense lawyers stands in stark contrast to the prosecution which had more than two years to prepare and present a defense, eight of tens months allocated fro the trial to present their case in court, and more than 200 million dollars of foreign funds provided by the occupying powers.
 On 13 June 2006, Mr. William Wiley who claimed to act on behalf of the IST, told the defense lawyers that e had copies of the Dujail court papers, but refused to give them to the lawyers saying he would do so at later date. Until this time, the IST had claimed that these papers were not available.
 BBC, “Interview with Sir David Frost” (broadcast on BBC Radio on 20 June 2004).
 See the section below on the lack of independence of the IST.
 Record of Negotiations of the International Covenant of Civil and Political Rights, U.N. Doc. A/2929, Chap. VI, sec. 77.
 U.N.S.C. Res. 1511, U.N. SCOR, 58th Sess., 4844th mtg., U.N. Doc. S/RES/1511 (2003).
 Art. 9 of Iraqi Law No. (160) of 1979, Judicial Organization, The Official Gazette, No (27) 2 July 1980.
 312 UNTS 221 (1950).
 1144 UNTS 123 (1978).
 O.A.U. Doc. No. CAB/LEG/67/3 Rev. 5 (1986).
 Adopted by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985).
 Report of the Working Group on Arbitrary Detention, U.N. Doc E/CN.4/1996/40 at 26.
 Castillo Petruzzi et al. v. Peru, Ser. C, No. 52, Inter-American Court of Human Rights, para. 129 (30 May 1999).
 Hamza Hendawi, Saddam Lashes out at U.S. as Trial Resumes, Associated Press (28 November 2005).
 Ahmed Rasheed, “Government tries to persuade Saddam judge not to quit,” Reuters (15 January 2006).
 Middle East Online, “Rizkar Mohammed Amin left his position for good, Hameesh named as new chief Saddam judge, New Chief Judge will hold post temporarily until judges elect new permanent replacement,” at www.middlie-east-online.com (First Published 2006-01-17, Last Updated 2006-01-17 09:50:54).
 BBC News (Middle East), “New Saddam judge ‘should resign’,” reported on Wednesday, 18 January 2006 at 19:04 GMT.
 Interview with Jalal Talabani, Radio Free Europe (5 October 2005).
 “Saddam judge denies links with Baath party,” Reuters (19 January 2006).
 Arab Times (Kuwait), “Execution of Saddam Soon,” (6 July 2006).
 CNN, “Talabani: Saddam confesses to execution orders,” reported on Tuesday, 6 September 2005 at 7:00 p.m. EDT (23:00 GMT).
 Francis Curta, “Saddam defense wants trial delayed,” AFP (28 November 2005).
 Associated Press, “Iraqi Shi'ite cleric calls U.S., Britain and Israel a 'Triad of Evil',” (11 March 2006).
 Associated Press, “Hussein Judge Target of Plot” (28 November 2005).
 Thanassis Cambanis, "Flash of old Hussein Sets off Ripples," Boston Globe (29 November 2005).
 Patrick Cockburn,"Delay in Putting Saddam on Trial is ‘damaging the country’," The Independent (8 September 2005).
 Adam Nichols, Saddam Executioners Lining Up, New York Daily News, Oct. 16, 2005.
 Online NewsHour on 30 June 2004 accessed at www.pbs.org (1 October 2005).
 Luke Baker, Doubts and questions deepen as Saddam trial to resume, Reuters (4 December 2005).
 Art. 5(c) of the Statute of the IST.
 Basic Principles of the Independence of the Judiciary, 7th UN Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.121/22/Rev.1 (1985); U.N. GAOR, 40th Sess., Supp. No. 38, U.N. Doc. A/40/146 (1985).
 Artt. 7(a) and 8(j) of the Statute of the IST.
 Art. 41 of the Law of Prosecutors, Law No. 159 (1979).
 Basic Law of Germany, art. 97(1) (official trans.) (“Judges shall be independent and subject only to the law”); Constitution of France art. 64 (“The President of the Republic shall be the guarantor of the independence of the judicial authority”); Constitution of Japan, art. 76(3) (official translation) (“All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws”); Constitution of the Russian Federation, art. 120 (“Judges shall be independent and subject only to the Constitution of the Russian Federation and federal law”); Constitution of China (1982), art. 126 (“exercise judicial power independently, in accordance with the provisions of the law”).
 Art. 14 of the International Covenant of Civil and Political Rights, art. 84 of the Third Geneva Convention, art. 26 of the African Charter on Human and Peoples’ Rights, art. 40 of the Rome Statute of the International Criminal Court, art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8 of the American Convention on Human Rights, art. XVIII of the American Declaration on the Rights and Duties of Man.
 Gonzáles del Rio v. Peru, Communications to the UN Human Rights Committee No. 263/1987 (28 October 1992).
 See, for example, Gregory v. United Kingdom, European Court of Human Rights, 25 EHHR 577 (1997).
 This anecdote is related by Professor M. Cherif Bassiouni who is a person intimately familiar with the IST. See M. Cherif Bassiouni, “Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” 38 Cornell International Law Journal 327, 371-372, fn. 346 (2005).
 United States Department of State, Country Reports on Human Rights Practices for 1995, 366, Washington, D.C., USA: U.S. Government Printing Office (April 1996).
 CPA Regulation No. 1, Doc. No. CPA/ORD/16 May 2003/01 (De-Ba’athification Order) and CPR Memorandum No. 1 on the Implementation of De-Ba’athification Order No. 1. Also see art. 33 of the Statute of the Tribunal that prohibits from being a judge any persons who was “a member of the Ba’ath Party.
 “Saddam Hussein: The Trial,” a film by Jean-Pierre Krief for Arte France and KS Visions (2005).
 Film by Jean-Pierre Krief produced for Arte France and KS Visions and shown in France in 2005.
 BBC profile of Judge Raouf Abdel-Rahman at http://news.bbc.co.uk/2/hi/middle_east/4659836.stm (3 March 2006). Also reported in EIN News at http://www.einnews.com (1 March 2006 at 9:52 GMT); CBS News, “More Chaos At Saddam Trial,” at http://www.cbsnews.com (29 January 2006).
 BBC profile of Judge Raouf Abdel-Rahman at http://news.bbc.co.uk/2/hi/middle_east/4659836.stm (3 March 2006).
 CBS News, “More Chaos at Saddam Trial,” at http://www.cbsnews.com (29 January 2006).
 Kuwait Times, “Defense Team to Meet Saddam May End Trial,” (27 January 2006).
 Mussab al-Khairalla, “Saddam and defense team boycott trial,” accessed at http://www.int.iol.co.za story attributed to Reuters (1 February 2006 at 7:09 a.m.).
 Richard Boudreaux, “Iraqi Trial Adjourns at Impasse,” Los Angles Times (3 February 2006) accessed at http://www.latimes.com (3 March 2006).
 This statement is reported on the Transitional Justice Forum at tj-forum.org by Christopher J. Le Mon at 12:02 on 7 February 2006.
 Film by Jean-Pierre Krief produced for Arte France and KS Visions and shown in France in 2005.
 Karttunen v. Finland, Comm. No. 387/1989 (23 October 1992), UN Doc. A/48/40 (1993) at p. 120, para7.2.
 Comments made on 13 June 2006 after claiming to have submitted a motion to the special Court to have Mr. Wiley prevented from speaking to defense witnesses or defense lawyers.
 Suarez-Rosero Case, IACHR 8, para. 70 (12 November 1997). Also see Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroon, ACHPR, Com. No. 39/90 (2000) (holding that administrative detention of two years without reason violated the defendant’s human rights).
 Civil Liberties Organisation, Legal Defense Centre, Legal Defense and Assistance Project vs. Nigeria, African Comm. Hum. & Peoples' Rights, Comm. No. 218/98 (not dated), para. 31.
 McVicar v United Kingdom ECHR 46311/99 (2002).
 See Ocalan v. Turkey, ECHR 46221/99 at § 162 (2005).
 Further Decision on Motion by Defense of Milan Martic For Access to Confidential Transcripts and Documents, Prosecutor v. Radoslav Brdanin, IT-95-11-PT (26 May 2004).
 Avocats Sans Frontieres (on behalf of Gaetan Bwampamye) v. Burundi, ACPHR, Comm. No. 231/99 (2000).
 Ocalan v. Turkey, ECHR 46221/99 at §131 (2005).
 Article 19(Fourth)(B) of the new Statute of the IST and article 18(c) of the old Statute of the IST.
 Basic Principles on the Role of Lawyers, adopted 8th UN Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba from 27 August to 7 September 2006, U.N. Doc A/CONF/.144/28/Rev.1 at 118 (1990).
 Law No. 111 (1969), published in Al-Waqai' Al-'Iraqiya, No 2796 (26 September 1980).
 See Prosecutor v. Dusko Tadiç, a.k.a. ‘Dule’, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, para. 141, ICTY Case No. IT-94-I (2 October 1995).
 See, for example, Judgment of the International Military Tribunal at Nüremberg (30 September and 1 October 1946) (stating in relevant part that “[t]o constitute crimes against humanity, the acts relied on … must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal…). See, for example, Peter Calvocoressi, Nuremberg—The Facts, the Law and the Consequences 57-58 (1948).
 Veeber v. Estonia, (No. 2), Appl. No. 45771/99 at §31 (21 January 2003).
 See Cherif Bassiouni, “Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal,” 38 Cornell International Law Journal 327, 373 (2005).
 Allenet de Ribemont v. France, ECHR, Ser. A, No. 308, at p. 16, para. 35 (10 February 1995).
 Minnelli v. Switzerland, ECHR, Appl. No. 8660/79 (1983).
 Film by Jean-Pierre Krief produced for Arte France and KS Visions and shown in France in 2005.
 UNGA Res. 43/173 (9 December 1988).
 Statement by L. Paul Bremer in CPA Transcripts 23 April 2004, entitled “Bremer affirms: Iraq Turns the Page.”
 Edwards Wong and John Burns, “Saddam Hussein Goes on Trial for Crimes Against Humanity,” New York Times (19 October 2005) at http://johnfburns.blogspot.com/2005/ 10/saddam-hussein-goes-on-trial-for.html.
 See Neil A. Lewis and David Johnston, “The Struggle for Iraq: War Crimes; U.S. Team is Sent to Develop Case in Hussein Trial,” New York Times p. 1 (7 March 2004).
 Nick Wadhams, “The Ex-Dictator: Hussein Unlikely to Be Tried Till 2006,” Associated Press (13 December 2004).
 Alissa J. Rubin, “The Conflict in Iraq: Trials to Start for Heads of Former Iraqi Regime,” Los Angeles Times (15 December 2004).
 Art. 59 of the Third Geneva Convention, supra, note 13.
 Email from Capt McCoy, Michael D (Baghdad) McCoyMD@state.gov entitled “Transportation and Housing Arrangements for Baghdad” (sent 1 December 2005 3:18 PM).
 Commission Nationale des Droits de l'Homme et des Libertes vs. Chad, African Comm. Hum. & Peoples' Rights, Comm. No. 74/92 (1992), § 22.
 IST Clerk Riza Hasan made this statement to defense counsel on 21 December 2005.
 Öcalan v. Turkey, Appl. No. 46221/99 (12 March 2003) at para. 88.
 The Prosecutor called for the death penalty for President Saddam Hussein in the hearing on 10 July 2006.
 American President George W. Bush, the commander-and-chief of the army illegally occupying Iraq and the author of the war of aggression against the Iraqi people stated that “I think he ought to receive the ultimate penalty ... for what he has done to his people. I mean, he is a torturer, a murderer. They had rape rooms. This is a disgusting tyrant who deserves justice, the ultimate justice.” U.S. President George Bush in an interview with ABC News' Diane Sawyer (16 December 2003).
 Interview with Jalal Talabani, Radio Free Europe (5 October 2005).
 Arab Times (Kuwait), “Execution of Saddam Soon,” (6 July 2006).
 Judge Abdel-Rahman has never refuted the allegations made on “information and belief” and submitted by the defense lawyers to the IST on 20 February 2006 that alleged that on the Iraqi television station Al-Fayha he “called for imposing death penalty against President Saddam Hussein claiming at a demonstration that took place in Halabja that there is no need for any trial to try Saddam for the crimes he committed against the Iraqi people.”
 Report of the Special Rapporteur on the independence of judges and lawyers to the UN Commission on Human Rights (now Council on Human Rights), Professor Leandro Despouy, UN Doc. E/CN.4/2006/52 (23 January 2006) excerpt from page 17, paras. 56-58.
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