Prominent Iraqi lawyer Sabah Al-Mukhtar* scrutinises the legal obstacles which might well make a fair trial for the former Iraqi president almost impossible Now that the United States has "transferred power" to the puppet regime it installed in Baghdad on 28 June, the fate of Saddam Hussein has emerged as a prominent issue. Saddam's court appearance on Thursday did not offer any answers to the many questions posed prior to his first public appearance in seven months. Will he eventually be handed over to the "Interim Government" or will he continue to be held by the friendly "not occupying" US forces in Iraq? How will he be tried? Where? By whom? For what? And finally, will he actually be tried? The 28 June "sovereignty handover", as the Americans describe it, carried the implicit assumption that the Iraqis (at least those brought to power on the back of American tanks) will run Iraq as a sovereign state. In other words, they will rule without dictate or "advice" from the US and without "coordination and consultation" with the 150,000 US soldiers stationed in Iraq, whose presence is recognised by UN Security Council Resolution 1546. The US meanwhile conveniently resolved some unimportant issues. The "Coalition Provisional Authority" (CPA) is now "The Embassy of the US", led by Ambassador Negroponte, and the "Occupation Force" is now the "Multi-National Force". This friendly force of 150,000 US soldiers is now stationed in Iraq at the "invitation" of Prime Minister Allawi. The only remaining problem was whether the Americans would continue to hold Saddam Hussein or "throw him to the dogs", but such a move would tarnish the process of handing over power. The US handed Saddam over to the Iraqis to try and convince the world that they are really handing over "sovereignty". They know if they kept holding Saddam Hussein then the supporters of Al- Qaeda, including the new bogeyman Abu Musab Al-Zarkawi, and the remnants of Saddam Husseins's forces will use this against them. That is why an elaborate scenario was concocted, namely that the Americans hand him over to the Iraqis but continue to hold him in their custody to ensure that he does not escape! Now that everything has been properly choreographed, the show can begin. When one talks of a "trial" there are certain matters that are necessarily presumed. First, the "court" must be properly constituted, competent and have jurisdiction, and the "law" under which the accused is being tried must be known, identified as valid and be in full force and effect. The charges are known by all parties and precisely stated. And the judges are competent, impartial and independent. If we look into each one of these basic elements, we could come to the following conclusions. On the issue of the court, it should be noted that the principles of international law may allow the occupation power to introduce limited changes to the "penal laws" of the occupied country. However, it may not completely change the laws of the country. Iraqi courts, accordingly, will have to continue to apply the laws that preceded the occupation as Article 64 of the Geneva Convention requires. Therefore, decisions taken by the CPA, whose aim was to change the laws of Iraq, are invalid. The same applies to decisions made by the "Interim Governing Council" whose members were hand-picked by the US-led occupation administration. More importantly, this court was established by order no 48 signed by Paul Bremer, US's former civil administrator in Iraq, on December 9th 2003 who also endorsed the state administration law on March 8th 2004. Obviously both laws are not valid, hence the "court" is not legally constituted. If this is correct, and I believe it absolutely is, then from a legal perspective, all such decisions are considered null and void. This most certainly applies to the wholesale purge of the judiciary and the dismissal of almost half of the Iraqi judges (more than 300 judges out of 700 were expelled from their jobs), which violates Article 54 of the Geneva Convention. It also applies to the setting up of the "special court" or courts that are supposedly empowered to try people, including Saddam Hussein. As for the law, the rules of the International Criminal Court (ICC) do not apply to the trial because neither Iraq nor the United States are signatories of the treaty. The rules are not retroactive and therefore do not apply to the "crimes" that Saddam Hussein is charged with (all of which took place prior to July 2002 when the ICC treaty came into effect). The laws of the Republic of Iraq, as they existed at the time, do not have the needed provisions to try Saddam Hussein. As a matter of law, he could plead that he was in fact upholding the law in force. Furthermore, under international law and the domestic laws of Iraq, the criminal law cannot be retroactive. I believe it is precisely for these reasons that the United States is unable or unwilling to be involved with the trial of Saddam Hussein, if any semblance of a legal trial (as opposed to a kangaroo court), is to be maintained. On the procedural level, producing credible (as opposed to journalistic) evidence that withstands legal scrutiny is extremely difficult. In my view, there is a crime to be proven and once proven, then the causal relationship between the crime and the accused is to be established in a "court of law" and not by mere assertion. In 1959 and thereafter, Iraq witnessed the "Mahdawi trial" of the deposed monarchy, a trial which was considered a political circus that any self-respecting lawyer would have no part of. If this is to be avoided, then concrete evidence against the accused must be supplied. On the issue of the charges Saddam Hussein faces, it should be noted that before the trial began, neither Saddam nor his lawyers, who were not even asked to appear in court, were aware of the charges. Furthermore, he has been denied basic human rights as secured in both Iraqi law and the Geneva Convention. This includes denying him access to a lawyer and other privileges of an ordinary detainee as well as a Prisoner of War. It would be ludicrous to say that "he did not observe those rules" when he was in power simply because people cannot be tried for violating rules that the court itself violates. For the rule of law to prevail again, the abuse of the legal system and violation of basic human rights, even those of someone like Saddam Hussein, must not occur. Such injustice is a crime not only by those commiting it but also by those who condone it by choosing to remain silent. As for the judges, the basic tenant of any trial is: that the judge or judges must be impartial and independent. They must have the knowledge, experience and integrity to do justice and impose the rule of law. It is patently obvious that Saddam Hussein has been so demonised around the world that it is unlikely anyone can find a judge who has not been influenced by two decades of propaganda against him. The appointment of Mr Salem Chalabi (nephew of the notorious Ahmad Chalabi), who never attended law school in Iraq, as the president of the tribunal to try Saddam Hussein speaks volumes. * The writer is the director of the London-based Arab Lawyers Association.
