Human Rights Analysis
The legal aspects of Saddam Hussein's trial
Sharin Shajahan Noami
At last Arab hero “Saddam Hossein's trial has begun amidst, ongoing civil war on Iraq and the gust of debate among the international community. Well, having execution of the former heroes accused of international crime is not new in the history. Former Yugoslav Tribunal and Rwanda Tribunal are the latest examples. The thresh old of this trial is whether it is fair enough for the person who is in one hand is hero to a great number of people and on the other hand charged with some very nasty crimes against his own people.
The statute of Iraq special tribunal
On December 10,2003 the Iraqi Governing Council adopted the tribunal statute.
This statute is a hybrid of Iraqi criminal law and international criminal law. This statute has provisions for death penalty resembling the Iraqi law and also for War Crime, Crime Against Humanity and Genocide having al most the same meanings of the Rome Statute of International Criminal Court.
Right to legal counsel - artcile18(c), right to silence-article 46(c), right to appeal -article25 (a), right to compensation, right to translation are some fair aspects of this statute.
But some lacking of this statute has failed to keep it out side the purview of International Standard. Like, in International Criminal Court the doctrine of presumption of innocence is applied which is not present in this statute. Also International Court maintain that-the guilt of a person has to be proved beyond reasonable doubt to inflict punishment. But this tribunal can inflict punishment if they are satisfied with the guilt.
The standard of proof is not also maintaining the international standard. There are no specific legal criteria, no legal expertise is needed in appointing judge and prosecutors. Rule 11(1) is dealing with the independence of the works of the judge, but no reference is in it about the impartiality of the judge. There is no opportunity for taking into consideration of the countries and political persons who assisted Saddam to commit such offence.
The structure of the tribunal: The presidency
President of that tribunal is appointed from the appeal chamber. He is responsible for the assignment of judges and reserve judges to particular trial chamber and has overall responsibility for the administration and finance of the tribunal. The post of president has to be occupied by non- Iraqi national according to 6(b) of the statute.
Tribunal investigative judge
Investigation will be conducted by up to 20 permanent investigative judges who reserve three years of term and the reserve judges will get up to 10 years term. The chief investigative judge is required to be non Iraqi.
The prosecution department
The Prosecution Department consists of up to 20 prosecutors nominated and appointed by the governing council after consultation with the judicial council.
Trial chamber
There may be two or more trial chambers consist of permanent judges and unspecified number of reserve judges.
Appeal Chamber
Appeal chamber consists of 9 permanent judges.
The administration department
The administration department is headed by a director and is responsible for the administration and serving the tribunal.
The nature of the crime to be prosecuted
-Genocide
-Crime Against Humanity
-War Crime
-Violations of Iraqi Laws
The charges of the crimes were bought for
- The 1987-88 Anfal campaign, a depopulation plan in which hundreds of thousands of Kurds were killed or expelled from northern Iraq.
- Mortar bombardment of the city of Kirkuk.
- Saddam's suppression of a Shiite uprising following the first Gulf War, which resulted in thousands buried in mass graves.
- Forced emigration of thousands of Fayli (Shiite) Kurds, who were pushed from northern Iraq into Iran.
- The killing of an estimated 5,000 people in a 1988 chemical weapons attack on Halabja, a Kurdish town.
- The execution of 8,000 members of the Barzani tribe, a powerful Kurdish community.
- The 1990 invasion of Kuwait, which Iraqi forces occupied for seven months.
- Execution of prominent political and religious figures.
- Crimes against religious and secular political parties.
- The drying of the southern marshes, following the 1991 Shiite uprising.
The first charge brought against Saddam Hossein:
It is very interesting that despite of such huge charge of crime, Saddam Hossain is being first prosecuted with a smaller crime- ' Dujail Massacre”. In 1982 While Saddam Hossein was travelling on his motorcade in a small city dujail , 35 miles north from Baghdad, an assassination attempt was made by some few Iraqis. But the reaction was- The whole city was wiped out, 150 national were inflicted death penalty with out any access to lawyer and scope of defense, hundreds were arrested including women and children and they were thrown into Sumwa desert in lia location for 4 years. The fruit groves of those families were also destroyed.
The prosecutor has very concrete proof of this massacre, he has the documents of death penalty signed by the Saddam Hossein. This crime has been termed as 'Crime against Humanity”.
In Prosecutor Vs Dusko Tadic( Case no IT-94-1A) the appellate chamber of Former Yugoslavia Tribunal has extended the commission of this crime outside the boundary of Armed Conflict.
According to the Rome Statute of International Criminal Court ( Article 7) Crime Against Humanity includes three components-
- Systematic attack
- Attack against civilians
- Attack with the knowledge of some relevant knowledge like persecution, willfully killing etc.
It has been said in the case Tadic case (trial chamber) - 'Even an isolated act can constitute a crime against humanity if it is the product of political system based on terror or persecution'
The bottom line of commencing Saddam Hossein's trial with this incident is to prove the case easily, though the USA wanted to start with more massive one.
Defenses going to be used for Saddam Hossian:
(I) Competency of the special tribunal and the impunity of Saddam Hossian:
In Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber), July 15, 1999, para. 84 it was held : “It is indisputable that an armed conflict is international if it takes place between two or more States”.
Now according to 4th Geneva Convention the United States is an occupying power and as stated in Article 64 of 4th Geneva Convention, Occupying power cannot change the present Iraqi legal system.( The penal Laws of the occupied territory shall remain in force Article 64 of 4th Geneva Convention) . Iraqi legal system has kept immunity for the head of State. Diminishing the legal system of the occupied country Iraq, this tribunal is standing with out any legal competency. In the first session of the court, putting a Kurdish judge, the term 'fair trial' against Saddam Hossein has been thrown in a question mark.
It very evident that Saddam Hossein's Lawyer is following the same path of the defense Lawyers of Yugoslav and Rwanda trial- to stretch the court proceeding through the arguments against the competency of the Court. Saddam's Lawyers are going to put the example of Nuremberg trial where the aggressors were being prosecuted on the other hand in Saddam Hossein's case the victims of the aggressor of USA are being prosecuted.
Well such argument may be not strong enough as an election has been held after the capture of Saddam Hossein for the post Saddam Government and the security council has recognized this government. Therefore, Saddam Hossein's lawyers are going to raise question upon the decision of Security Council's decision under the UN charter. In Namibia case ( 1971) where the ICJ exercising its advisory opinion stated that, “The Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations Organs concerned.” Well, it was the decision of International Court of justice, let's see what the tribunal will comment.
The defense lawyers also have to keep in mind that Article 64 is not absolute one, it has its flexibility when the occupying power can change the penal system of the occupied power if there is urgent need of security.
(II) Alleged crimes against Saddam Hossein were response to the insurrection:
Saddam Hossein's lawyers will try to prove the people given death penalty in Dujail were criminals according to Iraqi law. Regarding another crimes specially massacre against the Kurdish will be defined by Saddam Hossein's Lawyer was a response to control the insurgency.
(III) Embarrassing the USA administration:
Saddam's Lawyers have the plan to call top USA officials including USA previous presidents to prove USA's support behind Saddam Hossein, and through this process they intend to embarrass the USA administration and reach a deal.
The possibility of death penalty against Saddam Hossain:
The jurisdiction to give death penalty is the main point of condemnation of the Human Rights group. This issue has become burning as the after math reaction may be unpredictable from the Muslims. The legality of this tribunal is not still out of controversy and the world has not yet unanimously accepted the necessity of the trial.
There are no doubts that all the perpetrators of committing crime against humanity and war crime must be punished. Saddam Hossein who has tremendous support still in his country and outside the country is not also above the rule of law. But the process of bringing him within the purview of justice is not completely a fair process to many people. People know the ultimate result of this tribunal as they suspect the neutrality of the Tribunal. Saddam's Lawyers are continuous demanding the access to Saddam Hossein and the other evidences which is creating more controversy. The time is also not suitable for proceeding such a sensitive case when still everyday in Iraq bloodshed of the innocents and sacrifice of the allegiants of Saddam Hossein are common scenario. It would be better for the world community if Saddam Hossein can be brought before any completely neutral International Court with the alleged crimes. And it would be also spectacular if from that trial the people who have created Saddam Hossein for their own interest would be brought into light and would be charged for nourishing war criminals.
The writer is studying LL.B (Hons) at Law Department, Dhaka University.
