The proceedings being taken to impose victors? justice on the Iraqi 
people, including their former President Saddam Hussein, are nothing 
more than another example of the United States? unfortunate disregard 
for international law.

The carefully edited pictures of the trial that are allowed to be 
broadcast and printed show few Americans in the Courtroom, but behind 
every door and more disturbingly behind almost every action there are 
Americans pulling the strings.

Why is this so disturbing? Shouldn't Americans be proud that they are 
putting the Iraqi regime that they hate so much on trial? The answer is 
unfortunately a resounding no. In fact the trial has become such an 
embarrassment to the United States that the American puppeteers are 
likely committing war crimes themselves.

Illegal from the Start

The glaring illegalities of the current process begin with illegal 
origins. The invasion and occupation of Iraq is widely understood to be 
illegal. On 5 March 2003, three of the five members of UN Security 
Council and Germany, which was then a non-permanent member, 
unambiguously declared that a US-led invasion without further Security 
Council authorization would violate international law. On 16 September 
2004, UN Secretary-General Kofi Annan reiterated what was by then 
obvious to almost every international lawyer, that the invasion and 
occupation of Iraq is illegal. In fact, this is a textbook case of 
illegal aggression in violation of the prohibition of the use of force 
by one country against another found in article 2(4) of the Charter of 
the United Nations and under customary international law. 

The Nuremberg Tribunal described such illegal aggression as 
"essentially an evil thing. Its consequences are not confined to the 
belligerent states alone, but affect the whole world. To initiate a war 
of aggression, therefore, is 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." 

It is not the person on trial in Iraq who committed this crime, but 
the American President George W. Bush and his allies. Rather than being 
brought to justice for their crimes, the Bush administration and it 
allies resorted to trying their victims in a manner that insults 
longstanding concepts of justice and fair trial ? both a central 
Islamic value and an international human right. To the Bush 
administration their actions apparently justified or at least 
distracted attention away from their own illegal actions.

One of the ends of this illegal act was to capture, detain, try, and 
execute the President of Iraq who had dared to stand up to the will of 
a powerful country like the United States. The creation of the Iraqi 
Special Tribunal (IST), which is sometimes known as the Iraqi Higher 
Criminal Court, and the subsequent trials are acts taken to fulfill 
this goal. 

Under international law, when illegal acts have such consequences, all 
states are obliged not to recognize them. This rule, which is adopted 
in article 41(2) of the famed International Law Commission?s Draft 
Article on State Responsibility, prevents states from benefiting from 
their own illegal act.

As if the inherent illegality of the court were not enough, the United 
States has constantly taunted the international community by 
orchestrating a trial that is as widely criticized as unfair as the 
invasion of Iraq is illegal.

Unfair Trial

The violations of unfair trial are too numerous to mention here, but 
include almost every provision in article 14 of the International 
Covenant on Civil and Political Rights that could be violated at this 
juncture of the proceedings. 

Among the other striking violations of the human right to a fair trial 
are the lack of equality of power between the parties and the lack of 
an independent and impartial tribunal. 

The inequality of power can be illustrated simply in dollar values. 
The United States has spent hundreds of thousands of dollars supporting 
the prosecution of the Iraqi President; the defense lawyers are working 
as volunteers with hardly enough money to travel to Iraq. The 
inequality of power can also be illustrated in minutes, days, weeks, 
and months. The prosecution alleges to have been collecting evidence 
since at least 1991 ? which, of course, could only be true if it were 
the United States government doing the collecting ? and has at least 
been doing so since April 2003 when dozens of American lawyers and 
Iraqis who had not lived in Iraq for years were shuttled in to build a 
case. The defense lawyers, despite requesting visits with their client 
since December 2003 when he was detained, have to date not been allowed 
the confidential visits that are necessary to begin to prepare a 
defense. No visits were allowed with the most senior lawyers until 
after the trial had started and at each visit American officials 
exercise the authority to read any materials brought into the visiting 
room despite the fact that all meetings remain under close audio and 
visual surveillance. As if this were not enough, evidence has been 
withheld from the defense lawyers. They have been denied access to 
investigative hearings; they have been denied prior notice of 
witnesses, and they are prevented from even visiting the site of the 
alleged crime. 

All of these rights of the defendant are part of the right to a fair 
trial under both Iraqi law and international law. This law is merely 
violated with impunity. The extent of this impunity was evidenced on 24 
January of this year when judicial clerk Riza Hasan attempted to return 
a more than fifty-page brief that had been submitted to the IST 
claiming that ?the judges did not want it.? Perhaps he was explaining 
why none of the eight motions which have been before the IST for 
months, including motions on illegality of the IST and disqualification 
of specific judges, have never received a written reply. 

The interference with the independence of the tribunal has permeated 
all its aspects. Four out of five judges who started the cases have 
been removed, two by publicly announced interference connected to the 
United States occupying powers. In September 2005, four prominent 
statesmen wrote the UN Secretary-General advising him of the threat to 
participants in the trial in Iraq. These warnings were ignored. Several 
weeks later two defense lawyers were murdered in a manner suggesting 
possible involvement of the authorities in Iraq. More recently a 
possible defense witness was killed when his whereabouts were disclosed 
to US authorities. Even US President George W. Bush has declared that 
the trial is on track and that the Iraqi President will be executed.

Such statements coming from judges of the IST also indicate a clear 
lack of impartiality. In a film by Jean-Pierre Krief for Arte France 
and KS Visions that was shown in France in 2005, a judge of the 
tribunal states that the Iraqi President who was then about to go on 
trial before them had ?persecuted the Kurds. He killed them, wiped many 
of them out. He also used chemical weapons with the aim of committing 
genocide against this race, against this people, to eradicate them as a 
nation. He also went after the Shiites due to their religious beliefs.? 
Another judge states that the President is ?one of the worst tyrants in 
history.? These are not the statements of an impartial judge who in the 
inquisitorial system of justice is both the evaluator of law and fact.

In March 2006 the European Court of Human Rights avoided having to 
decide if the trial violated international human rights law by claiming 
that it had no jurisdiction because the European allies of the United 
States were not involved in the trial. The Court did implicitly seem to 
agree that it was the United States ? and not Iraq ? who were 
responsible for the trial. The UN Working Group on Arbitrary Detention 
on 30 November 2005 and the UN Special Rapporteur on the Independence 
of Judges and Lawyers in March 2006 explicitly confirmed that the 
United States shared responsibility with the Iraqi authorities. 

These latter two human rights experts have also condemned the trial as 
unfair. In his March 2006 report to the newly created Council on Human 
Rights the Special Rapporteur on the independence of judges and 
lawyers, Leandro Despouy, stated that after ?analysis and special 
concern of the Special Rapporteur since 10 December 2003 when the 
Statute of the Iraqi Special Tribunal (IST) was adopted and throughout 
its development ? [the Special Rapporteur] express[es] his reservations 
regarding the legitimacy of the tribunal, its limited competence in 
terms of people and time and the breach of international human rights 
principles and standards to which it gives rise.?

What to do About an Unfair Trial before an Illegal Tribunal?

What is the solution for this mess? How can the rule of law be 
restored? 

Some answer has been given before the whole process started by the 
original architect of the special Court, DePaul University professor 
Cherif Bassiouni, and more recently by the UN?s expert on fair trials, 
Professor Leandro Despouy. Both these formidable experts have indicated 
that the trial must be before a truly international court under UN 
auspices. Both have pointed to the several examples of such courts that 
exist today.

Although the UN may not come with clean hands into the fray, they are 
perhaps the only way out for the United States. The solutions proffered 
and orchestrated by the United States to date merely emulate and 
emphasize already serious violations of international law. The path 
currently being followed is truly one where a cast of the worst 
criminals are running the legal system. Is this really how American 
democracy views the rule of law?

Perhaps a more important question is when will the international 
community act?

Although the opinions expressed above indicate a widespread perception 
that the trial is illegal and unfair, the international community, 
particularly the Security Council, has to date refused to take on the 
responsibility of ensuring respect for the rule of law.

Despite having acknowledged in UN SC Resolution 1483 that the 
Secretary-General?s Special Representative for Iraq is responsible for 
?promoting the protection of human rights? in Iraq, little successful 
action has been taken. This was confirmed earlier this year when the 
outgoing UN human rights chief in Iraqi, John Pace, described the human 
rights situation as worse than under the previous regime and 
deteriorating daily. Taking a stand on the issue of unfair trial would 
be a good place for the UN to start promoting human rights. The 
fairness of these proceedings, which are closely followed by Iraqis and 
throughout the Arab world, is a crucial test of the international 
community?s commitment to the rule of law.


Curtis F.J. Doebbler is an international human rights lawyer and a 
member of the defense team for Saddam Hussein.

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