The trial of Saddam Hussein - Essay Example

The trial of Saddam Hussein This study examines the death sentence meted out to Saddam Hussein and examines whether any substantive human rights issues are implicated in this matter. Hussein was guilty of crimes against humanity, which by application of the principle of jus cogens would involve the fundamental application of international criminal law. The proper forum for the trail of Saddam Hussein would have been the International Criminal Court. The main issues raised in regard to the Saddam Hussein trial are whether it was procedurally a fair trial and whether the imposition of the death penalty was justified in the light of the human rights issues that are raised through the trial. Introduction: According to Michael Sharf, the Saddam Hussein trial can be classed as one of the most important cases in international law because (a) the scale of atrocities was high (b) Hussein was a top ranking leader (c) interest of the international community due to the coalition led against Iraq (d) sets a legal precedent for international crimes and (e) effect of the trial and whether it was perceived as fair.1 While Saddam Hussein was guilty of heinous offences against his countrymen, nevertheless, the question of whether or not his trial was fair and whether any substantive human rights issues were raised is a legitimate one, in the interest of future trend sin international criminal law. The basic premise that underlies human rights law is the fact that they are universal2, and therefore transcend social, cultural and political barriers and differences3. An international crime cannot be left within the exclusive jurisdiction of the national authority that would normally exercise control over such instances4 since international crimes may implicate those in positions of power and authority in the local Government. War crimes, genocide, crimes against humanity5, torture and aggression are all included under international crimes and international criminal law is the law that governs such crimes.6 The International criminal Court which came into being in 2002, has jurisdiction over nationals for crimes occurring on the territory of all states that have ratified the Rome Statute.7 Article 98(2) of the Rome Statute is specifically meant to protect against the ICC being used as a basis for political persecution.8 As also stated by Lauterpacht, international judicial law making may require that a national Court adapt its laws in order to comply with the requirements and framework of international law in order to ensure equity in adjudication and law making.9 Applying international law principles to Saddam Hussein’s trial: Jus cogens symbolizes principles of international law that are considered to be so fundamental that no nation can ignore them. When the principles of jus cogens are applied, Saddam Hussein’s crimes should have been properly tried before an international forum, such as the ICC, due to the nature of the crimes. In a briefing Paper prepared by the Human Rights Watch, the question of fair trial issues surrounding the Iraqi Special Tribunal were raised.10 One of the important points raised by Human Rights Watch was in reference to the composition of the Supreme Iraqi Criminal Tribunal (SICT). Instead of a Commission comprising a mixture of international and Iraqi experts, an Iraqi special Tribunal was constituted which comprised members close to the Coalition Provisional Authority (CPA).11 These were members close to the occupying force and therefore, their impartiality could be suspect. Article 14 of the ICC statute provides for a referral to be made to the International Criminal Court, in connection with war crimes that have occurred within a particular jurisdiction, in order to determine which persons are to be held liable for the commission of such crimes. In the case of Saddam Hussein however, no such referral was made. Section 59 (2) of the Rome Statute spells out the following when prosecution is carried on in the State: An arrested person is to be brought before the competent judicial authority in the State that will determine whether (a) the warrant is applicable to that person (b) whether the arrest has been carried out with attention to due process and (c) the person’s rights have been respected12. However, as pointed out in the briefing paper of the Human Rights Watch, the composition of the tribunal that tried Saddam Hussein did not include appropriately impartial authorities. Moreover, as also pointed out in the Report, the process of appointment of the experts was not transparent and did not take into account the attitudes of ordinary Iraqi citizens. Lastly, a significant part of the documentation associated with the crimes that were purported to have been committed were taken away by a variety of sources, thereby leaving the tribunal Court with a paucity of documentary evidence to conduct the trial. Leila Sadat also points out that tribunal members were chosen under U.S. occupation and were all of Kurdish or Shiite nationality, thereby undermining the fairness meted out to Saddam13. Secondly, the Human Rights Watch also pointed out another troubling aspect, i.e, the inclusion of political offenses from a 1958 Iraqi law, which was concerned more with discrediting the monarchy than in establishing he guilt or innocence of the accused parties. Under this provision, wasting national resources could constitute a crime. Therefore, this is not in accordance with the requirement for prosecuting criminals accused of heinous crimes against humanity, where the possibility of a fair trial may already be compromised through adverse publicity such as that generated through Press reports on the Saddam Hussein case. Therefore, in view of the above, the trial was conducted in accordance with Iraqi criminal procedure rather than international criminal standards. This has raised several issues about the fairness of the trial. For example, one of the fundamental principles that “every man is presumed to be innocent until he is proven guilty” is the underlying principle of English criminal law, which also forms the basis of international Criminal law provisions.14 According to Cross and Tapper, the presumption of innocence means that “the prosecution is obliged to prove the case [against defendant in question] beyond a reasonable doubt.”15 But in the case of Saddam Hussein, the need to prove guilt beyond a reasonable doubt does not appear to have been considered necessary, since Hussein’s lawyer was not allowed to confer with him without American officials being present, neither was enough time given to him to prepare for the trial16. DiStefano(2006) states that the standard of proof that was applied in the Saddam Hussein trial was not the proving of guilt beyond a reasonable doubt, but merely whether the tribunal is ‘satisfied’ that the charges are proved17. Further more, as pointed out in the Human Rights Watch Report, the investigative judge may collect evidence and question witnesses without the accused or the accused’s lawyer being present.18 In Sadat’s view, the accused may not have been adequately and fairly represented in the proceedings, since he was interrogated without defense counsel being present, the prosecution lawyers received protection and funding from the United States, with the Tribunal rules being manipulated to suit U.S. Interests rather than Iraqi ones. Another important aspect pointed out by Sadat is the fact that the Iraqi Tribunal was an ad hoc judicial body set up specifically for the purpose of conducting the trial on Saddam Hussein, which in general is not a good judicial precedent. She also points out that other international tribunals constituted for the trials of international criminals have been comprised of judicial authorities, temporarily diverted from their regular jobs for an extraordinary purpose, yet fully acquainted with judicial issues. In the case of Saddam Hussein, the extraordinary nature of the judicial issues involved and the possibility of a civil war in the event of an unfair trial, made it all the more necessary to conduct the trial fairly and with judicial authorities well equipped to handle the complexities inherent in the task. The right to a fair trial is an inalienable right. Article 14 of the International Covenant on Civil and Political Rights (1971) states clearly that when a person is charged with a criminal offense, he is entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law.”19 The fair trial will constitute some of the following elements: (a) the right to have guilt established beyond a reasonable doubt (b) to be informed of the charges against him (c) to have the facility of counsel to look out for his interests and prepare his case, including presenting of witnesses (d) to enjoy the facility of interpretation (e) not to be compelled to incriminate himself20 From the findings presented in the Human Rights Watch report, it may be noted that all of these provisions may have been violated in Saddam Hussein’s case, especially with regard to his right to have guilt proved beyond a reasonable doubt and receive adequate legal representation. However, the most flagrant human rights violation that may have occurred in the trial of Saddam Hussein is the fact that he was executed after the sentence was passed. The death penalty is to be used only in the most extreme of cases and even so, there are several rights to appeal against it. The ICPR itself states clearly that everyone convicted of a crime shall have the “right to his conviction and sentence being reviewed by a higher tribunal according to law.”21 However, although a two month period of appeal was allowed, Hussein was executed despite the existing provisions such as Article 6 of the European Convention of Human Rights that guarantee the rights to a fair trial and protect against capital punishment. One of the people who has opposed the imposition of the death penalty on Saddam is diStefano, who has “bitterly complained of the way the Iraqi Special tribunal has been deployed and used as a political tool.”22 Conclusion: Despite the desperate efforts of dictator Pinochet to avoid extradition to Spain to avoid trial23, he was finally brought before the Courts of justice and sentenced for his crimes, just as the President of Yugoslavia, Slobodan Milosevic24 spent his last days in prison in the Hague, finally being forced to face the punishment for his crimes. While it cannot be denied that Saddam Hussein was guilty of the most heinous crimes against some of his own countrymen, yet the course of true justice would have fund him liable for those crimes, as was the case with other dictators, as mentioned above. However, international criminal law is founded on the principle of individual rights and freedoms and allows every person accused of a crime certain rights under the law, such as the right to a fair trial and the right to an adequate defense, with the right to appeal. But as demonstrated above, there are human rights issues that are raised in the case of Saddam Hussein’s trial, which may have been utilized to serve political ends rather than to secure the cause of truth and justice. In the case of Saddam Hussein, a fair trial was a necessary prerequisite, not only because Hussein was entitled to it as a defendant, but in order that fairness and justice could be brought to the families of the thousands of victims of Saddam Hussein’s atrocities. By executing Hussein, the question of human rights violations does arise. In addition, it deprives the victims of the right to see their nemesis imprisoned and suffering for the rest of his life – a victim of the system of true justice. Through his death on the other hand, there is the possibility of Hussein being idolized and emerging a hero sometime in the future, which does not serve the cause of justice. Moreover, since the jurisdiction of the International criminal Court is also complementary to national jurisdictions and the authority of the ICC in the international forum is increasingly being recognized and validated, the proceedings of the Iraqi Criminal tribunal should have been fairly conducted rather than being motivated by political ends. Bibliography * Binder, Guyora, 1999. “Cultural relativism and Cultural Imperialism in Human Rights Law.” 5 Buffalo Human Rights.Law review, 211 * Cassase, Antonio, 2003. “International Criminal Law” Oxford University Press at pp 67 * Cross, Rupert and Tapper, Colin, 1990. “Cross on Evidence” (7th edn) London”: Butterworths * Coalition for the International Criminal Court, 2003. U.S. Bilateral Immunity or so-called “Article 98” agreements [online] available at: http://www.globalpolicy.org/intljustice/icc/2003/0606usbilaterals.htm * DiStefano, Giovanni, 2006.”Another side of the Saddam Hussein trial” The Jurist [online] available at: http://jurist.law.pitt.edu/forumy/2006/11/another-side-of-saddam-hussein-trial.php * El Zeidy, Mohammed, M, 2006. “Critical Thoughts on Article 59(2) of the ICC statute” Journal of International Criminal Justice, 4(3): 448 * Feldman, David, 1966. “The Defendant’s rights under English law” Madison: University of Wisconsin Press at pp 104 * Human Rights Watch Briefing Paper, 2005. “The former Iraqi Government on trial.” Available online at: http://hrw.org/backgrounder/mena/iraq1005/iraq1005.pdf * Iraqi Code of Criminal procedure * International Covenant on Civil and Political Rights {online] available at: http://www.ohchr.org/english/law/ccpr.htm * International Military tribunal at Nuremberg, Article 10 [online] available at: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm#art1 * Kittichaisaree, 2001.”International criminal law” Oxford University Press * Lauterpacht, 1933. “The function of the law in the international community” Oxford: Clarendon Press * Prosecutor v Milosevic, ICTY, No: IT-02-54-T * Sadat, Leila, 2005. “Experts debate the issues:The Dujail trial.” [online] available at: http://www.law.case.edu/saddamtrial/entry.asp?entry_id=14 * Sharf, Michael, 2005. “Experts debate the issues:The Dujail trial.” [online] available at: http://www.law.case.edu/saddamtrial/entry.asp?entry_id=14 * Steiner, Henry J and Alston, Philip, 1996. “International Human Rights in context: Law, Politics, Morals.” Oxford, at pp 187 * USA maneuvers to weaken international Court [online] available at: http://web.amnesty.org/wire/October2002/ICC * Wilson, Richard J, 2006. “The Pinochet Effect: Transnational Justice in the age of Human Rights.” Human Rights Quarterly, 28(2): 528-544 Read More