JURIST Special Guest Columnist Curtis Doebbler, an American member of Saddam Hussein's legal defense team and a professor of law at An-Najah National University on the Palestinian West Bank, says that the Dujail trial was one of the worst abuses of justice in modern history, a classic instance of "victor's injustice" imposed on the heels of the illegal US invasion of Iraq...
We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lipsThe verdict of guilty and the trial of former Iraqi President Saddam Hussein has failed the Iraqi people and failed the rule of law. It is an abuse of justice.
- Justice Robert Jackson at Nuremberg
Politically it sends a clear message to the Iraqi people: if they want to defend themselves they cannot look to law, they cannot look to the US government, they cannot look to the occupation government the US setup in Iraq â¦ they must defend themselves using all necessary means by which national liberation movements are permitted to defend themselves.
The trial of the Iraqi President has been declared unfair by every independent expert who has reviewed it. It constitutes the worse form of "victors' injustice."
On 1 September 2006, the UN Working Group on Arbitrary Detention declared the trial unfair and a violation of international law [opinion, PDF]. The Working Group is the UN body of five experts of fair trial, including an Iranian. The Working Group issued its opinion after scrutinizing the trial proceedings for two years, reviewing hundreds of documents, and even issuing a preliminary decision telling the United States and its occupation government what it had to improve in a preliminary judgment a year earlier. The consideration of the proceedings before the Iraqi Special Tribunal by the Working Group, were more thorough than the Iraqi Special Tribunal's own review of the evidence in the cases before it.
The Iraqi Special Tribunal (IST) did not even review the most important evidence in the trial. This evidence is the records of the trial proceedings of the Dujail trials. First, the IST claimed that there were no records. Then the IST allowed the prosecution to introduce a few selected pages of the Dujail trial proceedings into evidence. Then the IST admitted the Dujail trial record existed, but refused to provide it.
Similarly the IST refused to allow defense lawyers go to Dujail to even see the site of the alleged crimes or to interview witnesses. When the defense lawyers found witnesses, the court ordered their beating and arrest and sent a person from the court to coach and threaten the defense witnesses.
But perhaps the IST thought the defense lawyers were just lucky to be alive. Four defense lawyers were killed, allegedly by Iraqi government agents, some with American soldiers nearby. No attacker has been arrested or punished; the attacks have not even been investigated. An American marshal also assaulted an American lawyer at the courthouse threatening him with further bodily harm; and the US government has refused to respond to a complaint about this treatment. Even on the day of the verdict the chief judge ordered 78-year-old former US Attorney-General Ramsey Clark accosted by bailiffs for seeking to submit arguments proving that the IST was unfair. The IST had refused to accept these submissions from the Iraqi lawyers for months despite repeated attempts to deliver them.
Indeed, when the defense lawyers submitted preliminary arguments challenging the legality of the IST in November 2005, the clerk, Mr. Hasan Riza, in January 2006, returned the papers saying the IST "did not want them" and would not decide them.
But despite their impotence in respect of their responsibility for security, the United States has trained the judges to act as they have. In addition the US has allegedly written the final decision as they wrote the closing statement for the defense after the judge forced the defense lawyers chosen by the defendants out of the courtroom.
While the verdict was alleged being written by the occupying powers thousands of Iraqis have died because these same people can't provide basic security in the country they illegally invaded and occupied.
This arrogant abuse of the law is part and parcel of the illegal invasion of Iraq. The trial was the direct result of multiple violations of international law, especially the illegal crime of aggression perpetrated against the Iraqi people. Actions that are the result of an illegal action must not be recognized by any state in the international community.
The trial was undertaken by a court set up and controlled by the United States, an occupying power. This violates the express provisions of international humanitarian law in the Fourth Geneva Convention.
The trial was plagued by insecurity that saw defense lawyers, judges, and witnesses killed or intimidated. When the defense lawyers complained they were told there was nothing more that could be done. They were told not to complain about the murder of four defense lawyers by person allegedly connected to the Iraqi government.
The defense was given no time and no facilities to prepare a defense, even the President' money was stolen from him when he was captured by the Americans. All exculpating evidence was withheld from the defense; defense witnesses were threatened by court officials; defense lawyers were assaulted by US officials; and the defendants we not given the charges against them until eight months after the prosecution had started presenting evidence and the day the defense was required to
start its case. The list of violations is long and undoubtedly the reason why every independent expert has found the trial unfair.
The Dujail trial is one of the worst abuses of justice in modern history. If NÃ¼remberg was victors' justice under difficult circumstances, the trial of the Iraqi President Saddam Hussein was victors' injustice founded on George W. Bush's crime of aggression.
Curtis F.J. Doebbler is an international human rights lawyer and a member of the defense team for Saddam Hussein.