December 30, 2006
The execution of President Saddam Hussein would be a
grave war crime imputable under international law
The US-orchestrated tribunal that sentenced President
Saddam Hussein has no legal standing
The imminent execution of Iraq’s lawful president is
testimony to the gutting of international law by the Bush administration and its
criminal partners
President
Saddam Hussein is a prisoner of war with protected status under international
law.[i]
Further, he is the lawful president of the Republic of Iraq. He cannot be
executed legally by the US occupation.
Under the
Interim Constitution of Iraq of 1990 — which remains in force despite the
illegal imposition of a permanent Iraqi constitution written by the United
States — President Saddam Hussein, like heads of state worldwide, including in
the US and Europe, is afforded sovereign immunity to prosecution.[ii]
That the US
invaded Iraq illegally and established an illegal political process and a
quisling Iraqi government only exacerbates the violation of President Saddam
Hussein’s personal and sovereign rights and the affront to the whole of Iraq.
His imminent execution is an attempt to establish, de facto, a global state of
exception to law. Force cannot make just what law denies.
The US-led
invasion of the Republic of Iraq was illegal and cannot be made legal by the
execution of Iraq’s lawful president. The occupation is illegal and cannot
survive by authoring new atrocities.
This
mockery of law
The Iraqi
Higher Criminal Court that passed a death sentence on President Saddam Hussein
is a farce. Not only is it grounded on illegality (occupying powers under
international law are expressly prohibited from changing the judicial structures
of occupied states[iii]); the trial itself stands distinguished in legal history by its
sheer number of due process and international standard of fairness
violations.[iv]
These
violations have included, often with systematic effect: American imposed
censorship of court proceedings; withholding evidence from the defence; forcible
ejection from court of defence lawyers and the placing of defence lawyers under
house arrest; denial of defence counsel access to defendants; blatant lack of
impartiality of court judges; overt political interference in the selection of
court officials and the prejudicing of the trial and trial outcome by statements
made by invested political figures — including George W Bush — affirming
progress towards, or demanding, execution; the replacement of four of the five
originally selected court judges; lack of equality of arms between the
prosecution and the defence; refusals to accept key defence submissions,
especially motions challenging the competence and legality of the court;
violations of key fair trial principles and standards and international
humanitarian law[v];
violation of Iraqi law[vi];
intimidation of witnesses; failure to ensure the security of the defence leading
to the murder of three defence lawyers.
Created by
Paul Bremer, the Iraqi Higher Criminal Court was never anything but a
US-orchestrated puppet court.[vii]
The imposition of a death sentence after an unfair trial stands in direct
violation of international law.[viii]
The truth
about this court
From day one,
this court has been nothing but a smokescreen: an attempt to establish a veneer
of legality to an illegal invasion of a sovereign state. From day one, the final
conclusion — the illegal execution of Iraq’s lawful president — has been a fait
accompli. The only question has been when.
As 2006 ends,
the United States is desperate. Defeated militarily on the ground, long defeated
politically and morally, the occupation is preparing to open the year 2007 with
a barrage of atrocities, including the open murder of Iraq’s lawful president.
This, like all other US-authored atrocities in Iraq, will not allow the US and
its criminal partners to impose on Iraq a future that is contrary to the
fundamental interests of the Iraqi people.
The
imminent execution of President Saddam Hussein is a challenge to the world. Its
occurrence would mark a watershed in the imposition by force of a global state
of exception to law and to international standards of justice and due
process.
States
are obliged to protect international law and oppose acts that undermine
it.[ix]
International law is the arbiter and final guarantor of world peace. When states
cannot or fail to act to protect it, or when they act resolutely to destroy it,
it is the duty of citizens everywhere to oppose global tyranny by direct
action.
Urgent
action demands
We demand
that legal institutions worldwide, governmental and non-governmental, act now to
prevent the illegal execution of President Saddam Hussein.
We demand
that all states and the United Nations speak up immediately and oppose and
prevent the illegal execution of President Saddam Hussein.
We demand an
immediate meeting of the UN Security Council in which must be affirmed the legal
basis governing international relations and in particular the fundamental
jus cogens norms of international humanitarian
law.
We call upon
the UN Working Group on Arbitrary Detention to defend its November 2006
conclusion that the detention of President Saddam Hussein is illegal and act to
prevent his illegal execution.
We invoke the
mandate afforded to the UN Special Rapporteur on Extrajudicial, Summary or
Arbitrary Execution to intervene to prevent the illegal execution of President
Saddam Hussein.
We call upon
the Special Rapporteur on the Independence of Judges and Lawyers to defend his
March 2006 conclusion that the Iraqi Higher Criminal Court is questionable, has
limited competence and has given rise to serious breaches of international human
rights principles and standards. We call upon the rapporteur to intervene to
prevent the illegal execution of President Saddam Hussein — a further insult to
justice.
We demand
that the UN High Commissioner on Human Rights personally intervene to prevent
this grave war crime from occurring. No one in authority can claim ignorance as
to its imminence.
We affirm
that international law is the bequest of generations and an expression of the
development of human civilization and that people worldwide, individually and in
groups, have a stake in protecting it, and the world peace that depends on
it.
We call upon
citizens and individuals everywhere to stand up in defence of international law
and Iraqi sovereignty and act to prevent the execution of Iraq’s legal
president.
The execution
of Saddam Hussein would not only be a war crime against one individual and
state. It would lend an illusion of legality to illegal acts — both the
execution of a lawful president and the invasion and destruction of Iraq. It
would be nothing less than a declaration of the death of international law,
slain by this criminal Bush administration and its collaborators.
If the
execution of President Saddam Hussein will not lead to an international or
global war, it sows the seeds, in its overt illegality, and in conjunction with
Washington’s exclusion of international law from international relations, for
precisely this outcome.
Abdul Ilah
Albayaty (BRussells
Tribunal Advisory Committee)
Ian Douglas
(BRussells
Tribunal Advisory Committee)
Hana Albayaty
(BRussells
Tribunal Executive Committee)
Dirk
Adriaensens (BRussells
Tribunal Executive Committee)
Inge Van De
Merlen (BRussells
Tribunal Executive Committee)
[i] In January 2004 the US government officially recognized
President Saddam Hussein’s prisoner of war status. See Article 3
The Hague IV
Regulations, 1907: "The armed
forces of the belligerent parties may consist of combatants and non-combatants.
In the case of capture by the enemy, both have a right to be treated as
prisoners of war." The Third Geneva
Convention Relative to the
Treatment of Prisoners of War, 1949, provides for the human rights to security
of person, privacy, respect, humane treatment, and fair trial. Under
international law, no special arrangements can be constituted that adversely
affect the rights of persons. See Article 7 of The Fourth
Geneva Convention
Relative to the Protection of Civilian Persons in the Time of War,
1949.
[iv] For a full account of the illegality of the Iraqi Higher
Criminal Court and the violations of international fair trial principles and
standards witnessed during its proceedings see Iraqi Special
Tribunal: A Corruption of Justice by Ramsey Clark and Curtis Doebbler (13 September
2006).
[vi] The Iraqi Higher Criminal Court is inconsistent with
Iraqi law because it violates basic principles of international human rights law
that are binding on Iraqi authorities according to Article 44 of the
Interim
Constitution of Iraq of
1990. Further, the court was formed in violation of processes set forth in
Section IV, Articles 60 and 61 of the Interim Constitution and the Iraqi Law on
Judicial Organization, the latter illegally annulled by Coalition Provisional
Authority Order No 15 of 23 June 2003.
[vii] That the occupying power, through the Coalition
Provisional Authority, created the Iraqi Higher Criminal Court (formerly the
Iraqi Special Tribunal) is established by the fact that Order No 48, containing
the statute of the court, had to be signed by Coalition Provisional Authority
Administrator L Paul Bremer before it could enter into
force.
[viii] See Article 6, paragraph 2, of the International Covenant on 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." The
retroactive application of the death penalty violates the Iraqi Penal Code,
which states in Article 1: "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." 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. See also
Articles 2, 4 and 5 of the UN Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death
Penalty.
[ix] Article 42(2) of the United Nations International Law
Commission’s Draft
Articles on State Responsibility, representing the rule of customary international law,
prevents states from benefiting from their own illegal acts: "No State shall
recognize as lawful a situation created by a
serious
breach …" (emphasis added); Section
III(e), UN General Assembly Resolution 36/103 of 14
December 1962, "Declaration on the Inadmissibility of Intervention and
Interference in the Internal Affairs of States".
