JURIST Special Guest Columnist Giovanni Di Stefano, an Italian lawyer who has represented Saddam Hussein and former Iraqi Deputy Prime Minister Tariq Aziz, says that the recent trial of Hussein and seven co-defendants for crimes against humanity in Dujail is problematic not only as regards Saddam, but also in its conviction of Awad Hamad al-Bandar, former Chief Judge of the Iraqi Revolutionary Court …

The Prime Minister of Iraq has yet again interfered with the judicial process in the Saddam Hussein case [see my legal opinion on the detention]. He has stated that Saddam will be executed by the end of the year. This is a presumption, or perhaps an order to the appeal court to dismiss the appeal that is automatic and of right.

The whole trial of Saddam has been carried out under unacceptable circumstances. The first chief judge resigned because of political interference (an offence and violation under both the Iraqi constitution and the Statutes of the Iraqi Special Tribunal, now the Iraqi High Tribunal), the second was dismissed because of an alleged involvement in the Ba'ath party and the third judge was appointed simply to carry out the political wishes of the Iraqi government.

Let us look carefully at the impact of this and its implications for the future. Chief Judge of the Revolutionary Court Awad Hamad al-Bandar was in fact convicted with Saddam Hussein and sentenced to death simply because he was a judge who, the prosecution stated, carried out the orders of the Saddam Hussein government! Yet, throughout the whole proceedings lasting 55 weeks not a single piece of evidence or legal argument was advanced to show that the Revolutionary Court was a summary court, which is the only basis for a conviction. In the Nuremberg Trials a judge was indeed sentenced for similar allegations, but the prosecution there proved that the tribunals established by the Nazi party where indeed summary courts. No such proof has been adduced or advanced. The conviction of Judge Awad Hamad al-Bandar has been overlooked because we have all concentrated on the main player-Saddam Hussein. Yet, the case of al-Bandar is vital not only for himself but also for the others.

The Iraqi High Tribunal is not required to find guilt 'beyond reasonable doubt' but the standard of proof is only whether the Tribunal is 'satisfied' that the charges are proved. All other safeguards have been thrown in the waste. It is why Salam Chalabi, the original head of the Tribunal, refused to return to it. He was not going to accept any kind of political interference. The result? He was removed, accused of murder, no proceedings followed and the Iraqi government begged him to return. He refused. He is a proper lawyer with principles to match and I have always appreciated his candor.

The Iraqi High Tribunal heard no evidence whatsoever regarding the Revolutionary Court. It could not, in any view, even be satisfied let alone beyond reasonable doubt, that the Revolutionary Court was anything other than a properly constituted court. It may have applied summary justice in both criminal and civil, but then so do most of the Courts within the EU and the US. In the civil jurisdiction summary judgment is the most popular of applications to make to cut the case short when there is really no defense. In criminal law there are statutory offences which, regardless of defense, the result is jail – sex with a minor is but one.

I have bitterly complained of the way the Iraqi Special Tribunal has been deployed and used as a political tool. It is with the full knowledge and consent of the US and British governments. It is strange that in the United Kingdom and Italy extradition to a country that does not guarantee rights of a fair trial as per Art.6 of the ECHR or worse for the imposition of capital punishment is prohibited, yet there is support for the imposition of capital punishment on Saddam Hussein et al.

I have felt for Mr. Ramsey Clark, the ex-US Attorney General, in the disgraceful way he was ejected from the court by Judge Rahman on the day of the verdict. Yet, it was inevitable. The US failed to protect its own citizen and chose instead a way that has inevitably cost President Bush dearly in the mid term elections. The appeal process has commenced. If the law is to be applied and not interpreted then at the least Judge Awad Hamad al-Bandar should have his conviction overturned as a matter of law and fact. No evidence has been adduced whatsoever that the Revolutionary Court was other than properly constituted and with approved rules. No evidence was adduced that it was a summary court. The only evidence was that as Chief Judge, al-Bandar should not have approved the convictions. A fallacious argument wholly unsupported by any evidence at all. If the Revolutionary Court was thus a 'right and proper court' the convictions and sentences were 'right and proper' within the laws of Iraq at that time and now.

Saddam Hussein never denied he, as President, signed the execution orders for Dujail. He was entitled to as the Vice President of the current Government has signed 27 orders that have been carried out in the last month.

History may repeat itself and that is what Judge Rahman and the current Iraqi government should clearly consider.

The appeal process is expected to last two months. As I have stated, and reconfirm regardless, there is an existing agreement between the UK/Italy and the Iraqi government witnessed by the US in 2004 that precludes the execution of 11 indicted persons of which Saddam is but one. If there is any attempt to execute any of the 11 named in the agreement it is my intention to make an urgent application both to the US Supreme Court in forma pauperis for an extraodinary writ of habeas corpus and to the European Court of Human Rights under Rule 39 of the Rules of Court for urgent measures.

Giovanni Di Stefano is an international lawyer working at Studio Legale Internazionale in Rome, Italy.
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