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Declaration on the legal necessity to halt the proceedings against POW President Saddam Hussain. 

The BRussells Tribunal, 29 June 2006.

1.            On  June  21,  2006, attorney Khamis al-Obaidi was killed in Baghdad. He is the third defense counsel for Mr. Saddam Hussain to be killed, joining Mr. Sadoun al-Janabi, killed in October 2005 and Adel al-Zubaidi, killed in November 2005. Attorney Thamir al-Khuzaie was wounded in the November incident. 

2.            Attorney al-Obaidi was the ninth person connected with the trial of Mr. Hussain to be killed, prompting another attorney in the case, Najeeb al-Naimi (former Qatari minister of justice), to state: “there is no security. All of us have received threats.”  

3.            The murder of yet another defense counsel has prompted many concerned with the overall situation in Iraq to question whether all proceedings should be halted due to the undue risk of the participants’ lives and safety. While agreeing that proceeding should be halted on safety grounds, we also have more fundamental legal questions about the detention and trial of Mr. Hussain in light of existing rules of the laws and customs of war (humanitarian law), and the laws established under the international system of human rights. These bodies of law are binding on all judicial actions.  

4.            In order to sort out all the possible irregularities if not violations of fair trial rules from both humanitarian and human rights law, we must first state that Mr. Hussain is a prisoner of war. This is because he was the commander-in-chief of the armed forces of Iraq in the war by the United States against Iraq. As a POW, he is entitled to all provisions of Geneva Convention III of 1949, Protocol Additional I to the Geneva Conventions, and all binding customary humanitarian law relating to confinement of POWs. Of particular note in this regard is Article 22 of Geneva Convention III, which provides that POWs may not be held in penitentiaries unless in the interest of the POWs themselves. It appears that Article 22 is being violated in the confinement of Mr. Hussain, and we also question whether there is full application of the rights set out in Articles 25 – 27 regarding other conditions. In this light we urge that the authorities allow full access of the International Committee of the Red Cross or other competent organization to assess the conditions of confinement. It appears that the US has clear  physical control over Mr. Hussain. 

5.            Of key importance in this situation is to determine who may try Mr. Hussain and for what acts. While the invasion of Iraq by the United States forces was illegal, the Geneva Conventions nonetheless apply, and under provisions of the Geneva Convention, the United States, as the Occupying Power, may charge and try Mr. Hussain for acts in contravention of humanitarian law. Whether on Occupying Power could try a POW for human rights violations occurring outside the context of the armed conflict raises serious questions. (That question was only partially raised in the Astiz case: Mr. Astiz was captured in the Malvinas War, but was alleged to have participated in human rights violations in Argentina. Several States wanted to try him for those violations, but he was instead returned to Argentina by the Protecting Power). The United States, for political reasons, did not want to try Mr. Hussain itself because Mr. Hussain had not committed any actionable offences against the United States, either during the US-Iraqi war or at any other time. Further, the United States would not have been able to validly sentence Mr. Hussain unless as a result of a proceeding in the same courts as it uses for its own armed forces (Article 102), provided that a number of other conditions are met. The United States could turn Mr. Hussain to a neutral State (or in Geneva Convention language Protecting Power), but also for political reasons did not choose to do so. In fact, the United States has not authorized any State[s] as Protecting Power[s]. However, as the Astiz case suggests, a Protecting Power itself can neither try a person under its protection in its own courts for criminal acts committed in another State, nor turn a Protected Person over to a third party State. The United States could also try Mr. Hussain in its own civil courts “if its laws permit civil courts jurisdiction over its own armed forces (Article 84). Instead, the United Stated turned Mr. Hussain over to a specially constituted “court” of occupied Iraq, supposedly under the command of a judicial system controlled by the “Iraqi” government. The “Iraqi” government, however, is not an independent State, but one controlled by the Occupying Power. In the situation in Iraq, there is essentially no functioning, independent judiciary, and there had not been any provision in the old judicial system for trying POWs in civilian courts. The Occupying Power destroyed any possibility of Iraqi military tribunals as the venue for trying Mr. Hussain. The Iraqi court is inherently biased and fails to meet minimun standards of impartiality. The situation, then, is one of total judicial abnormality with a lack of legal authority. Accordingly, the trial of Mr. Hussain should be halted until such time as there is a court with proper legal authority and with jurisdiction over the alleged acts at issue.  

6.            While the court itself is a legal aberration and must be halted on that ground alone, it is still important to point out that in the process as a whole, there have been numerous violations of other minimum requirements for either military or civil courts, as set out in Article 9 and 14 of the International Covenant on Civil and Political Rights. So even if there may be some grounds for “legalizing” an illegal tribunal, the proceedings in themselves would require nullification of either imposition of or carrying out any sentence.  

7.           It is important to note that the crimes that Mr. Hussain is currently charged with did not take place in the context of the current war: in fact they did not take place in the context of any war and thus are not actionable as breaches of the Geneva Conventions or other instruments or principles of humanitarian law. The alleged crimes are criminal law violations, not war crimes. Conditions in Iraq preclude meaningful, impartial investigation into the events, and even if a proper-constituted court were to be established, fair trial rules relating to evidence may be impossible to meet.  

8.            The trial of Mr. Hussain is taking place in a context of the daily commission of grave breaches of the Geneva Conventions by the Occupying Power. Under such conditions alone, the trial should be halted as impossible under the circumstances. 

9.            The 1945 Nuremberg Charter states clearly: “To initiate a war of aggression not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” The UN Charter and its Definition of Aggression (GA Res. 3314) reinforce this rule. Since the invasion under the Nuremberg and UN Charters was utterly illegal, all that followed from it is illegal, from Mr. Bremer’s laws to the new constitution to the trial of Mr. Hussain. 

10.         For the reasons set out above, the current judicial proceedings against Mr. Hussain should be halted. The provisions of Geneva Convention III relating to Protecting Powers and POWs should be implemented regarding Mr. Hussain and all similarly situated persons of the government in place at the time of the invasion of Iraq who are detained in Iraq. All persons involved with the proceedings must be fully protected.  

To all those who respect international legality: Please raise your voice against the constant breaking of international rules governing Mr. Saddam Hussain’s trial.  

The BRussells Tribunal, in defence of international law, and in solidarity with the defense counsel and staff and with the families of those killed.

29 June 2006.


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