Who will have courage to stand up?

by Ian Douglas | Al-Ahram Weekly, Issue No. 765 | 20-26 October 2005

The disconnect between law, justice and truth in Iraq will reach its highest extreme in the show trial of Saddam Hussein, writes Ian Douglas*

This week Iraqis voted on a document written by local agents of an occupying power; a power that regardless of domestic considerations is never leaving Iraq entirely. Now, amid kidnappings, organised crime on an unprecedented scale and a death toll from bombings and assassinations reaching around 500 a month -- in short a situation where everyone is made to feel a target -- Iraqis are being invited to witness the greatest travesty in the history of law: the trial of Saddam Hussein.

Why is Saddam important? To most Iraqis he's not. Since the beginning of the war in 2003, its architects have continually refused to see that being Baathist in Iraq is not synonymous with being Saddamist. The former is anti-imperialist, pan-Arab and socialist in orientation; the geostrategic reasons obvious as to why the neocons in Washington blur the two together. If sympathy with Saddam remains, it is only to the extent that he, particularly since his capture (and parading him in his underwear didn't help), is a mirror of the humiliation that befell the entire country at the hands of the US-led invasion. It is that and the brutality of the military occupation (the turning point being the wholesale decimation of Fallujah) that people in Iraq are so conscious of. How can this occupation, they ask, which has killed, according to the original figure which The Lancet intended to publish but which was deemed too shocking for a Western public to believe, around 200,000 Iraqis, judge anyone else on war crimes? How can the United States, which championed sanctions for 14 years and invaded under the name of "shock and awe", have the audacity to cry with the Iraqis over their loses? As one Iraqi who spoke on condition of anonymity to Al-Ahram Weekly remarked, "Let them execute Saddam; but who will execute them?"

Saddam could have been important. The truth of the 20th century history of Iraq could have been revealed. For Iraqis, it was perhaps not so much that there needed to be a period of "reconciliation". Many of the tensions that supposedly divide Iraq now are new, being accentuated by politicians on the make. Prior to the 2003 invasion, Iraqis were Iraqis first, only secondarily Sunni or Shia or Kurd. The canned history of Iraq peddled by the American government and a mainstream media pumped by "embedded journalists" is but a caricature of a complex reality. Even according to figures published by the De-Baathification Committee established by the military occupation, 52 per cent of those identified and removed from public office are Shias. As Iraqi novelist Haifa Zangana once stated, there was only one democracy in Iraq: that anyone could be the target of the regime.

Why, then, should anyone care about Saddam? Well, through a twist of fate that surely the engineers of the Project for a New American Century have not foreseen, Saddam's case ironically is about the rule of law itself. His trial is a clear metaphor not only for the fate of Iraq, but the fate of international relations in this low-point of American hegemony where law is being subjugated by force. The abuses of his legal rights, for which there is incontrovertible evidence known to the key players, is characteristic not only of the approach of the US to Iraq, but attempts to transform by force the entire map of the Middle East. Aside from the very real obligation that falls upon us all to protect the human rights of the most vilified in our societies -- who often are not the once strong but the weak and minorities -- protecting Saddam Hussein's rights is imperative for those who oppose the changing current in international relations whereby the multilateral system is being destroyed as many thousands in positions of authority, with ready access to the media, are silent.

How ironic the comments of Pierre-Richard Prosper, US ambassador-at-large for war crimes issues, to the Iraqi Special Tribunal (IST) conference in London in October of last year where the judges who will this week try Saddam were gathered. He spoke of concentrating on the "big fish", of not attempting to delve too deeply into the detail, of building "the rule of law", ending the "culture of violence" and "rule by might", and most incredulously of all, "ending impunity". Impunity is the lens through which Iraqis understand the entire entry of the occupation. It is the signature not only of how America is breaking Iraq, but how this tribunal must treat Saddam if it is to cover the complicity between the United States in the 1980s and the very regime it deposed in 2003. Just as no one at the Office of War Crimes Issues in the State Department would this week comment on allegations made by lawyers close to Saddam's case that he has been systematically denied rights of due process, including the right to chose counsel and to meet with such counsel as frequently as required and in confidence, don't expect this trial to bring to light anything but a sanitised version of the recent past of Iraq. The Weekly reported on this issue over one year ago. Remarkably, nothing has changed.

"The president (Saddam Hussein) does not have nor has he ever had since that start of his detention in December 2003 any lawyers of his own choosing. Mr Khalil Al-Dulemi was chosen by the occupying powers' special court and has himself indicated repeatedly that the president wishes to meet other lawyers. The president himself has also asked to see certain lawyers, but has each time been denied that right. Even when the Iraq authorities have agreed to allow other lawyers to meet the president, the United States has refused to agree and no meetings have taken place," Curtis Doebbler, a prominent international human rights lawyer, told the Weekly in interview Tuesday. Further, "Any person, whether from the Iraqi interim authority or the United States government, who tells you that the president has a lawyer of his own choosing is lying. This vital human right, among many others, has been violated for almost two years and is being violated even as the trial starts."

Persistent efforts to locate someone in either the State Department in Washington or the US Embassy in Baghdad authorised to go on the record and respond to these charges -- which starkly contradict statements made this week by State Department Spokesman Scott McCormack concerning the free access the US government claims Saddam enjoys to defence counsel -- failed by time of going to press. A similar disconnect between lawyers and politicians exists on the ground in Iraq. Kamran Al-Karadaghi, a spokesman for Iraqi President Jalal Talabani, said Thursday that Saddam is freely able to meet with defence lawyers. The hard fact appears that this week is set to witness the opening one of the most important legal cases in recent memory and the defendant, Saddam Hussein, has one court-appointed lawyer who he has barely seen and who may not be permitted, let alone able, to appear at the opening in whatever courtroom has been constructed in Baghdad's heavily fortified Green Zone, according to sources close to the case.

Denial of access to legal counsel is not the only but perhaps the most glaring violation of due process that makes this week's trial opening a salutary joke. Aside from the wider context -- that arguably the IST and the entire proceedings are illegal, in that the war on Iraq was illegal under international law, in that the statute of the IST has been recognised only by a government that was elected under protection of a military occupation (a state of affairs as much discerned on a de facto as a de jure basis) -- the rights of Mr Hussein have, defence team advisors charge, been so gravely violated as to bring to question whether any trial is possible at all. Having met with Hussein only a handful of times since December 2003 it is not surprising that Duleimi has gone on record as saying he is inadequately prepared. Appointed by the IST, he is not even a criminal lawyer but a commercial lawyer, surely -- and to his credit by his own admission -- not one with a comprehensive expertise in the detail of international law, still less war crimes tribunals.

Will the illegality of the war that is the foundation of everything that has followed -- and which annuls everything that has followed -- ever be raised in court? Not if this sham is permitted to continue. Given that the legitimacy of the whole proceeding is a preliminary question that has yet to be decided, a criminal defence is not even at stake, some lawyers say.

The difference between Saddam Hussein's trial and the proceedings of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague is beyond comparison. Wolfgang Schomburg, a senior UN judge who sits on the ICTY, said recently that the IST betrayed features of "victors' justice". If, for some, the ICTY has a fault it is that Slobodan Milosevic, for one, is being afforded too much opportunity to outline his defence, his case now running for over three years. Saddam Hussein, according to statements of Prime Minister Ibrahim Al-Jaafari, will be lucky to be afforded three weeks. For Michael Ratner of the New York-based Centre for Constitutional Rights, the problem lies in the very notion of special courts; that they are, based on special rules to try special cases, by definition often slanted towards the prosecution. "The reason the Geneva Convention doesn't like special courts, and they're outlawed by the Geneva Conventions, is because when a power takes over of course they're going to set up courts that have a surface legality to them, but underneath they have serious problems," Ratner told the Weekly.

Ominously, the IST and its statute provide no requirement to prove guilt beyond reasonable doubt. Guilt for what is a whole other question. Sources close to those who have been working on a defence but who shy from being described as "defence lawyers", having been denied all access to the defendant, are unsure if Saddam will face one trial or 12. Rumour has also spread that witnesses quoted in the prosecutor's case file (which did not reach Duleimi until weeks shy of the stated 45-day time period allowed by the IST) were not even named. Surprising to some, the trial will not open with hearings on Saddam's worst alleged atrocities: the Anfal genocide and the infamous "gassing of his own people" Halabja case. Rather, initial -- possibly final -- hearings will focus on the killing of 143 in Al-Dujail following an assassination attempt on Hussein in 1982. If a criminal defence is made it is expected to be that as head of state Saddam merely signed warrants for executions as afforded under Iraqi law. A broader line of defence would be to press the issue of legal immunity enjoyed by Hussein as head of state during the period over which the IST claims jurisdiction (prior to 2003). Article 15 of the International Covenant on Civil and Political Rights -- to which both the United States and Iraq are party -- evokes the legal principle of nulla poena sine lege, or no punishment without law, meaning that one cannot be held guilty of a criminal offence for an action that was not an offence under law at the time when it was committed.

Further question marks about the tribunal and whom precisely it takes authority from were generated on 10 August when its statute and rules of procedure were altered and re-promulgated. Renamed the Iraqi Higher Criminal Court, the IST in theory now falls under the authority of the interim Iraqi National Assembly, though this as yet not official as the statute and rules of procedure have not be published in the official government gazette. It is open to interpretation, therefore, if the IST has de jure authority to meet at all this week. One rule in the new statute is that Saddam would, if found guilty and sentenced to death, have to be executed within 30 days of the exhaustion of the process of appeals. In addition to being draconian, this would practically assure that none of the major war crimes allegations would be tried in court were Saddam to be convicted in the Al-Dujail case.

Given how brazen and obvious the denials of due process are in Mr Hussein's case, one would almost conclude that the US cares nothing about the legitimacy of the IST, nor the credibility of the Iraqi government which is tied to it. Can Saddam possibly face a fair trail when the Iraqi prime minister and president frequently call in public for his execution? What exactly is the United States doing in backing this tribunal? States don't normally "do" random. There must be a reason. Why is the IST so clearly inadequate; Hussein's rights so clearly violated? Even Geoffrey Robertson, QC, one of the British barristers enlisted to train the judges of the IST, has lost faith in the tribunal. "I also had a number of arguments with the Americans, who want him to swing from a makeshift gallows in some dusty square with thousands of Shias screaming in delight. I can't think of anything more likely to rev up the civil war," Robertson was reported as saying. The question now is: are there mechanisms, even at this late stage, which would permit the transferral of Saddam Hussein's case to an independent international tribunal where justice not vengeance could be sought, and be seen to be done?

The answer is yes, if the right people act. One possible route is if the General Assembly of the United Nations (UNGA) asks the International Court of Justice (ICJ) for an advisory ruling on the legality of the IST in statute and procedures. A UN member state would have to initiate this by drafting an advisory opinion and tabling it before a UNGA vote. Possible areas of concern might include questioning the legal foundations of the IST or its proceedings, or indeed anything else that has occurred in Iraq since the US-led invasion, including the legality of the government elected in January. A positive ruling from the ICJ would certainly add pressure on the United States and the Iraqi government to at least ensure that the deficiencies of the IST are remedied, and may provide grounds for an alternative international tribunal. Like pressure, albeit non-binding but authoritative, could be levied through the UN Commission on Human Rights (UNCHR) -- specifically through the special rapporteurs on the independence of judges and lawyers, on arbitrary detention, and on extrajudicial, summary or arbitrary execution. The rapporteurs in this instance -- especially the Working Group on Arbitrary Detention -- could push the violations of due process in Saddam's trial onto the agenda of the UNCHR, which could then add weight to any concerns extant in the UNGA, possibly triggering states to act. Defence team advisors have stated in the past that with the exception of the US, the UK, Italy and the EU, representatives at the UNGA have largely been sympathetic to concerns expressed over the IST.

Normally speaking, only the UN Security Council (UNSC) can establish international tribunals. With the United States as a permanent member with veto power, this is almost certainly unthinkable in the case of Saddam. However, under the Uniting for Peace Resolution, the UNGA could -- if the ICJ deemed the particular case in point a threat to international peace and security -- be empowered to create an international tribunal in the event that the UNSC could not or refused to act. One might imagine that a travesty of justice in the trial of Mr Hussein would not be so grave as to be a threat to international peace and security. As mentioned earlier, few Iraqis care for the fate of Saddam. But the precedent set by a show trial at this level is grave, and the wholesale undermining of international law by the United States in Iraq is arguably a critical threat to world peace and security.

As to other measures, one possible option would be the Inter-American Commission (IAC) of the Organisation of American States. In April 2003, one international human rights lawyer filed a case with the IAC questioning the legality of the war on Iraq. Saddam Hussein's name was added to the petition in December, though at that time the IST had not been set up. Before Mr Hussein's supposed legal transfer to Iraqi authority, an urgent petition was filed for precautionary measures, which was refused two weeks later. To date, the IAC has not taken up the case and have indicated that they will not do so at the present time. According to some legal experts, however, they may if a future ruling against Hussein violates his rights in a substantial manner. In short, if the case is weak and the trial filled with procedural flaws, the IAC might step in. The basis of doing so is the notion within international law of "extraterritorial jurisdiction". In essence, human rights instruments apply to state parties when they act abroad. As yet it is not a principal that has strong standing in international relations, though cases are pending which may establish precedents that could be evoked.

In all of the above routes, the defence of justice depends -- as it so often does -- on the action of but a handful of players. The world must now ask, as the future of international relations, not just Saddam, may rest on the answer, who has the courage?

* The writer is visiting professor of political science at An-Najah National University in Nablus, Palestine.
Posted by: Mona Baker on Oct 21, 05 | 3:37 pm