Dear Readers,

May I ask your attention for the following first:

Real or alleged Dutch tortures of Iraqi prisoners of war dd 2003:

At friday dd 17-11 news reached me about the real or alleged torture, by the Dutch military, of Iraqi prisoners of war by the Dutch military, during the period of the Dutch military presence in Iraq

I was very shocked
According to the article 3, 3th Geneva Convention [regarding prisoners of war], under all circumstances prisoners of war must be treated humanely

Personally I've always apposed the presence of the Dutch military in as well Iraq and Afghanistan, because, by sending them, a contribution was being made to the British-American occupation of as well Afghanistan and Iraq

Also I was worried about the fact, that by making prisoners of war, they could have been delivered to the USA, with the vivid possibility for sending them to prisoner-camps like Guantanamo Bay, Kandahar and the secret CIA-detention camps, where prisoners not only are being held without any form of trial, but also are being tortured

It is evident, that as well as torure, as the detention without any form of trial, are grave human rights violations

I'm therefore glad, that Amnesty International reacted quickly on this disturbing message and I totally agree with their reaction
See also
http://www.amnesty.nl/index?w=12934

Seeing in the light of those real or alleged Dutch tortures of Iraqi prisoners of war, it is of the greatest importance, that an investigation is being started, as soon as possible, and that the possible offenders are being punished, according to international judicial standards


Kind regards
Astrid Essed
Amsterdam
The Netherlands

THE DUJAIL TRIAL AGAINST SADDAM HUSSEIN AND 7 OTHER DEFENDANTS
The right of any human being to a fair and independent trial

Article 3, Universal Declaration of Human Rights
Everyone has the right to life, liberty and security of person.

Article 10, Universal Declaration of Human Rights
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Those two main important articles are stemming from the Universal Declaration of Human Rights, as well confirmed by the international human rights treaties

A The death-penalty and the right to life:

My main objection against the death-penalty is fundamental, stemming from the fact, that executioning a human being is the most serious violation on the right to life

To my opinion, which is also confirmed by the already mentioned article 3 of the Universal Declaration of Human Rights, any human being has a right to life

This, being a human right, should not be violated, either by individuals, organisations or the State

By imposing the death-penalty, the State is violating this principle

Adherents of the death-penalty will argue, that the criminal himself has violated the right to life of another human being, and therefore should be punished accordingly

However, I don't agree with this, because, regardless of the committed crime, the right to life, being a human right, is inalienable.
This right may not be violated, even by the State

Moreover, there are sufficient legal means to impose a severe punishment to a convicted murderer

Another perhaps less fundamental, but nonetheless important objection against the death-penalty is the fact, that although hard an evidence for guilt may be, there will always be a possibility, that someone innocent is being executed.

The way I see it, this should be the nightmare of any Public Prosecutor, jury or judge in a country, which is imposing the death-penalty

A notorious example has been the Guildfour Four, four men, who were wrongly convicted in the United Kingdom in october 1975 for an IRA-bombing attack, by which five people were killed and sixty-five were injured

They were convicted to life-imprisonment

Suppose those people were convicted to the death-penalty and afterwards it had been discovered, that they were innocent?

It is evident, that this objection doesn't refer to the case of Mr Saddam Hussein, but it is a horrifying possibility anyway and an important reason to object the death-penalty

A1 The right to life as a human right

As already have been mentioned, the right to life is a human right, which is being confirmed in the Universal Declaration of Human Rights, which, as a document, has no legal, but especially a symbolic value

However, since the major importance of this symbolic value, the articles of this Declaration are often referred to in protest-letters against human rights violating countries in the world.

Also, the most articles of the Universal Declaration are being consolidated in legal human rights treaties

So article 3, defending the right to life of every human being, has been consolidated in the International Covenant on Civil and Political Rights, Part III, article 6

However, it is of importance to mention, that article 6 is especially referring to the ''arbitrary'' killing of a human being, which excludes the by the State imposed death-penalty

Although there is no prohibition of death-penalty, there are certain common criteria, like the prohibition to impose the death-penalty to minors [children under 18 years] and pregnant women

It is regrettable that the right to life, as a human right, has a lesser importance than other commonly acknowlegded human rights, since there is no international agreement regarding important issues like the death-penalty, abortus or euthanasia

However, the right to life is a fundamental universal human right.



B The right of any human being to a fair, independent and impartial trial

Above I have referred to two human rights, the right to life and the right to a fair trial

Also I have pointed out my objections against the death-penalty
Obviously, those objections are not being shared by adherents of the death-penalty

However, the principle I share with as well opponents as adherents of the death-penalty, is the international acknowledged right of any human being to a fair trial

Not only this right is being confirmed in article 10, Universal Declaration of the Human Rights, but also in article 14 of the International Covenant on Civil and Political Rights.

However, the investigations and reports of highly reputed human rights organisations like Amnesty International [www.amnesty.org] and Human Rights Watch [www.hrw.org] showed, that the trial against mr Saddam Hussein and 7 co-accused didn't meet the international standards regarding a fair, independent and impartial trial

1 The governmental violation of the judicial independence of the Iraqi High Tribunal

One of the international key-principles, guaranteeing the rights of a defendant to a fair trial is the independence of the Court, which among else excludes any direct interference from the government

However, in the Dujail trial, the Iraqi government has interfered in the judicial procedure:

At september 19th, the presiding judge of the Court, mr Abdullah al-Amiri, had been removed from his position, by a decision of the Prime Minister and Cabinet (the Council of Ministers).

This measure development continues a disturbing trend observed in the early phases of the Dujail trial. When the first presiding judge in the Dujail case, Rizgar Amin, was not deemed firm enough in handling Saddam Hussein’s courtroom behavior, he was publicly criticized by the then-Minister of Justice and parliamentarians, and heavily attacked in the press. Judge Amin resigned out of protest.

1a The basis of the governmental interference:

This governmental measure, removing a judge, is being based on Article 4(4) of the Statute of the Iraqi High Tribunal (IHT), which provides that Iraq’s Presidency Council can, upon recommendation of the Council of Ministers, transfer a judge or prosecutor from the court to the Supreme Judicial Council, for “any reason.”

Obviously however, this article, which implies governmental interference regarding the judicial procedure, is a strong violation of the independence of the Court

Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which Iraq ratified in 1971, provides that all persons have a right to be tried by a “competent, independent and impartial tribunal.”
The independence of judges must be guaranteed by ensuring that the conditions of their appointment and dismissal are free from executive interference or control.

The United Nations’ Basic Principles on the Independence of the Judiciary provide that the independence of judges be adequately secured by law. Article 4(4) of the IHT Statute undermines the independence of the IHT judges, because it allows the executive to remove any judge, for any reason and at any time, from a case.

2 The murder on three lawyers of the defense

Very alarming and utterly inhuman was the murder on three lawyers on behalf of the defense of Saddam Hussein and his 7 co-accused

Obviously in such a climate of violence and intimidation, with a clear incapacity of the Court to guarantee the safety of the Defense Counsel, the conduction of a fair trial has been seriously jeopardized.

However it may be clear, that not only the safety of the Defense Councel, but also everyone else, participating in the trial process – judges, prosecutors, victims, witnesses and defense counsel –, have faced the same intimidation cq unsafe situation, which is likely unacceptable

As a horrifying result of that, as well as successful, as unsuccessful assassination attempts took place against a judge, prosecutor and other court staff.

3 Serious judicial failures during the trial

a Insufficient expertise regarding the principles of International Law in connection with the charges of genocide, crimes against humanity and warcrimes:

Article 4 of the statute of the Iraqi Hight Tribunal does not require that judges have experience that is relevant to the kinds of trials they’ll be handling. That is why Human Rights Watch initially proposed a mixed international-national tribunal, in which international prosecutors and judges could assist their Iraqi counterparts in conducting these complex trials.

Despite this recommendation, yet the trial have taken place, without the international judicial assistance
As well as Human Rights Watch, as Amnesty International, have repeatedly utterered their concern regarding the lack of expertise of the SICT [Supreme Iraqi Criminal Tribunal]

It is evident, that every defendant has a right on a trial, presided by a competent Court or tribunal

b Violation of a defendants-right of access to a laywer and to a lawyer of his own choice

One of the keyrules of a fair trial, which has been guaranteed in article 14 of the International Covenant on Civil and Political Rights, is the right of access to the Defense council and to adequate time and facilities to prepare a defense.

In the case of the Dujail trial however, mr Saddam Hussein and other defendants were initially denied to access to their lawyers
Also their right to choose their own lawyer was being violated

b1 Violation on the right of to access to a lawyer

Although Mr Saddam Hussein was arrested in December 2003, he did not have access to his lawyers until 16 December 2004.
Not only that was referring to his case, also the other co-accused had no access to their lawyers

The U.S. military holds in custody on behalf of the SICT more than 90 so-called “High Value Detainees”, comprising most of the senior leadership of the former government.
The Iraqi Tribunal [The SICT], did not become functional until December 2004, and consequently the detainees did not have access to counsel until that time.

Yet in July 2004, twelve of the detainees were brought before a judge of the Central Criminal Court of Iraq and notified of possible charges punishable under the Penal Code. Reports submitted to the U.S. Congress by the U.S. Department of State record that, between June and December 2004, U.S. investigators from the RCLO [U.S. Embassy’s Regime Crimes Liaison Office] reviewed seized government documents held in Qatar in order to question detainees, and questioned thirty of the detainees.
Prima facie, it would appear that this questioning occurred before any of these detainees had access to legal counsel, and it is impossible to determine whether they were properly informed of their right to counsel and freely waived that right.

b2 Violation on the right to choose his own lawyer

Furthermore, on several occasions, the tribunal imposed counsel whom the defendants had rejected, despite guarantees in law that the defendants may be represented by counsel of their choice.

An example is the court session on January 29, 2006, by which new lawyers were appointed by the Court after a defense lawyer of mr Saddam Hoessein was ejected from the courtroom and the defense lawyers of Saddam Hoessein and 3 other defendants, then walked out in protest.

However, the defendants rejected the Court-appointed lawyers or attend Court.

Article 14 of the ICCPR [International Covenant on Civilian and Political Rights] confirms the right to a lawyer of his or her own choosing


c Failure of the Court to to investigate allegations of torture and ill-treatment by the defendants

The tribunal also has failed adequately to investigate allegations of torture and ill-treatment by the defendants.
For example, on 13 March 2006 Taha Yassin Ramadhan, former Iraqi vice-president, alleged that he had been beaten and subjected to sleep deprivation, extreme temperatures and forced positions during interrogation following his arrest in August 2003, but the tribunal is not known to have ordered an investigation.


d Regarding the possible lack of ability of the Defence to receive and test evidence

Throughout the proceedings, serious concerns arose regarding the ability of the defence to receive and test evidence submitted to the court by the prosecution. The defence team repeatedly claimed that the Prosecution introduced to the court evidence that had not been provided to the defendants beforehand, thereby preventing them from preparing a proper defence.


C Responsibility Mr Saddam Hussein for the human rights violations during his reign

It may be clear, that this article is no attempt to minimize the responsibility of the ex-president of Iraq and other political and military authorities concerning the committed grave human rights violations during their reign

However, yet apart from my main objections against the death-penalty, the right of any human being to a fair and independent trial, regardless the real or alleged crime, is a basic human rights principle

The violation of this basic right is not only a serious human rights-violation, but is also undermining the credibility of the Court

Also the conviction of defendants after an unfair trial is illegal

D Regarding the appeal and the nature of the trial

The international human rights organisations Amnesty International and Human Rights Watch have declared that they closely will follow the appeal stage against the Dujail-trial-verdicts, where the evidence as well as the application of the law can be reviewed and the SICT has an opportunity to redress the flaws of the previous proceedings.

However, according to my opinion it would be wise, when either international judges should be added to the Tribunal or the trial would be referred to an international Tribunal

Not only the right to a fair trial is a basic right of mr Saddam Hussein and the other defendants, also a fair trial is of the greatest importance in connection with real justice for the Iraqi victims of the committed human rights violations and their families

Astrid Essed
Amsterdam
The Netherlands


Sources:

Universal Declaration of Human Rights
See
http://www.unhchr.ch/udhr/lang/eng.htm

International Covenant on Civil and Political Rights
See
http://www.ohchr.org/english/law/ccpr.htm


Regarding the Guildford Four
See
http://en.wikipedia.org/wiki/Guildford_Four

Statement of Amnesty International in connection with the verdict of mr Saddam Hussein and two co-accused and the Dujail trial
http://news.amnesty.org/index/ENGMDE140372006


Statement of Human Rights Watch regarding the verdict of Mr Saddam Hussein and two co-
accused and the Dujail-trial
http://hrw.org/english/docs/2006/11/06/iraq14518.htm

Human Rights Watch report regarding the Dujail-trial
See
http://hrw.org/backgrounder/mena/iraq1005/

Questions and answers regarding the trial of Saddam Hussein
See
http://hrw.org/english/docs/2004/11/24/iraq9725.htm


The SICT and the right to a fair trial
See
http://hrw.org/backgrounder/mena/iraq1005/4.htm

Judicial flaws regarding the Dujail-trial
See
http://web.amnesty.org/library/index/ENGMDE140312006

http://web.amnesty.org/library/index/engmde140072005


Regarding the protection of the Defense Council
See
http://hrw.org/english/docs/2006/06/27/iraq13637.htm

http://hrw.org/english/docs/2005/10/21/iraq11911.htm

Regarding the independence of the Court

See
http://hrw.org/english/docs/2006/09/19/iraq14229.htm

http://hrw.org/english/docs/2006/01/27/iraq12541.htm

Regarding the right to a lawyer of his own choosing
See
http://hrw.org/backgrounder/mena/iraq0206/


Violations of human rights by Mr Saddam Hussein and other political and military authorities
See

http://www.hrw.org/reports/2003/iraq0303/

http://www.hrw.org/backgrounder/mena/iraq031103.htm


http://hrw.org/reports/1993/iraqanfal/