Global Policy Forum

By Curtis Doebbler *

Lawyers representing Iraqi President Saddam Hussein held several meetings in Amman, Jordan during January and February 2005 to consider further steps to gain access to their client and to the alleged evidence against him. To date the president continues to be denied access to his lawyers, despite false statements that have circulated in the press by sources too cowardly to identify themselves by name, suggesting that he has been meeting his lawyers. These rumors are not true. No lawyers have met the president since 16 December 2004 and no lawyer chosen by the president has been able to meet him in confidence and as required by international law at any time since his arrest.

The United States government and its administrative arm in Iraq, the Iraqi interim government, continue to deny the president the right to communicate with lawyers of his own choosing and to have access to any of the alleged evidence against him. At the same time the occupying forces continue to orchestrate a trial before the Iraqi Special Tribunal, a body that is not competent, independent, nor impartial. Efforts have also been stepped up by ISNAD, the body formed to coordinate the efforts aimed at ensuring respect for the rule of law in Iraq, to draw attention to the illegitimacy and illegality of the Iraqi Special Tribunal.

This illegitimacy is based first and foremost on the fact that the tribunal was created by a decree of the occupying power from among judges that have been vetted for their political allegiance to those same powers when courts and judges already existed in Iraq. The destruction of the judiciary and the creation of biased courts is contrary to the responsibilities of the occupying powers to ensure the integrity of the judiciary in the country under occupation as established in Article 64 of the Fourth Geneva Convention. The Iraqi Special Tribunal is therefore not competent.

Neither is the Iraqi Special Tribunal independent. As the judges have been apparently chosen from among those who have been vetted for their political allegiance to the occupying powers, they serve at the convenience and pleasure of the occupying power to contribute to the occupation, not to respect the laws of Iraq or international law. This is apparent in the fact that they have already violated almost every right of criminal defendants from denying them access to their lawyers to preventing them from seeing the evidence against them and withholding from them the means to prepare their defence. These serious violations of due process over an extended period of time have been authorised and required by the occupying powers. Such interferences with the application of justice show that the Iraqi Special Tribunal lacks independence.

Finally, the judges of the Iraqi Special Tribunal are not impartial because they remain faceless. The occupying powers have justified this by saying that it was for the protection of the judges. Never under the government of Iraq presided over by President Saddam Hussein were individuals tried by anonymous or faceless judges. Such judges are prima facie violations of the requirement of impartiality and have been so criticised by the occupying powers in other instances. Because the identity of the judge is not known they must be considered to prima facie be lacking in impartiality.

A competent, independent and impartial tribunal is one that applies a rule of law fairly to all persons who should fall under its jurisdiction. In the case of international aggression this must be the aggressor as well as victims of aggression. It is crucial that a determination about the legality of the use of force against Iraqis is a conditio sine qua non for the trial of any person accused of having committed crimes in Iraq.

If it is found that the situation in Iraqi is the result of an illegal use of force then the aggressor must restore the situation to that which it was before the illegal act of aggression. Therefore, before any members of the Iraqi government headed by Iraqi President Saddam Hussein can stand trial, a determination should be made about the legality of the United States' use of force against the Iraqi people. To put the leaders of the Iraqi people on trial when the aggressors against the Iraqis are not held responsible for their actions is the worst kind of vengeance. It is vengeance based on a violation of international law and mocking the rule of law in a manner that will damage it severely for decades to come.

If the rule of law is to be preserved, the world needs to decide its priorities. Justice cannot be done by putting vengeance before the rule of law. And the only way for the rule of law to be upheld is to decide upon the responsibility for all persons who have violated international law in relation to the situation in Iraq, starting with those who have perpetrated crimes that the Nuremberg Tribunal called "not only an international crime" but " the supreme international crime" that "contains within itself the accumulated evil of the whole".

A legitimate tribunal should therefore have jurisdiction over the aggressors as well as their victims. In the Nuremberg trial, only the aggressors were put on trial. In Iraq the victims of aggression are being brought to trial. Iraq had not attacked any other country. Iraq was, in fact, abiding by the law. According to UN Secretary-General Kofi Annan, UN weapons inspector Hans Blix, and the overwhelming majority of international jurists around the world, the United States and its allies are aggressors.

Furthermore, reacting to the criticism of Judge Bert V Rí¶llings, that the Tokyo and Nuremberg tribunals only dispensed victors' justice, the international community has ensured that subsequent ad hoc tribunals that have been created by the UN Security Council could always prosecute all parties to an armed conflict. Without this assurance, vengeance triumphs over the rule of law.

Nevertheless, in the case of Iraq, even allied soldiers who admit to committing grave breaches of international humanitarian law or the laws of war are given light penalties and tried by biased tribunals. At the same time their commanders, right up to the commander-in-chief are given complete immunity. Only if the United States intends to provide every other governments' senior personal the same immunity can such action be justified. If the United States claims this immunity only for itself then grave damage is done to the rule of law.

That the United States' aggression against the Iraqi people is illegal is an opinion overwhelmingly, almost unanimously, shared among the world's legal scholars and world leaders. It is the first issue that should be litigated in any court of law in relation to the situation in Iraq. To act otherwise would not merely be to put the cart before the horse, but to shoot logic in the head in an attempt to cure a toothache.

Already repeated attempts have been taken to use the courts of law to determine the illegality of the war. In Canada, American soldiers who have deserted from the United States military have claimed that their actions were justified because the war was illegal. Although blocking its immigration courts from addressing this question, the Canadian government admitted this question should be ruled upon by the International Court of Justice (ICJ).

Indeed, the General Assembly of the United Nations could consider the proposal of any member state to request an advisory opinion on the legality of the use of force in circumstances such as those surrounding the United States' attack on the Iraqi people. A majority of the General Assembly could then send the question to the ICJ. Hold long will it be before a member nation has the courage to stand up for the rule of law?

In Ireland non-violent activists who tried to prevent the US military from turning Shannon Airport into a military target -- as the Irish government has done by allowing American planes on their way to bomb Iraqis to land at their civilian airport -- argued that their actions were justified as necessary to prevent an illegal war. The Irish courts also found themselves incompetent to deal with this question in a way that was reminiscent of the logic used by the courts in Nazi Germany to refrain from criticising the regime. How much suffering could have been saved if those courts had mustered the courage to apply the law will never be known.

If states are not willing to stand up for the laws they themselves decreed how can they be surprised if a national liberation movement in Iraq resorts to the use of force to try to displace a foreign and oppressive occupying force? Until the question of the illegality of the use of force against Iraq has been decided all actions that emanate from the illegal acts cannot be accepted. Indeed, the existence and popularity of the national liberation movement inside Iraq is testimony to this reality.

To push forward with trials that have been widely referred to as "show trials" by prominent Iraqis themselves, is a travesty of justice that will take generations to undo. Using a legal forum that fails to meet the most minimum basic requirements of justice is an insult to the rule of law and the legal profession. Providing for a forum where all perpetrators of crimes in Iraq can be brought to justice, including those who have committed the most serious crimes against peace, would, however, be a starting point for restoring justice in Iraq and restoring respect for the rule of law around the world.

About the Author: Curtis Doebbler is one of the lawyers representing Saddam Hussein. He is also a professor of law at An-Najah National University in Palestine.