Illegal and unfair trials of President Saddam Hussein and others by the Iraqi Special Tribunal threaten international law

RAMSEY CLARK
37 West 12^th Street 2B
New York, N.Y. 10011
212-979-1583 fax

October 10, 2006

Memorandum with Exhibits

for Each Member of the United Nations

Submitted to its Ambassador to the United Nations

Re:

Illegal and unfair trials of President Saddam Hussein and others by the Iraqi Special Tribunal threaten international law.

Review of the legality and fairness of Iraqi Special Tribunal trials by U.N. agencies is essential before the transfer of physical custody of the accused to the present government of Iraq.

The consequences of surrender of the accused to Iraq on the basis of the Dujail trial, or during the present violence and instability will threaten the future of international justice and civil war to the death for Iraq.

Dear Ambassador

The Iraqi Special Tribunal (IST) in June scheduled October 16, 2006 for the announcement of its final judgment in its first case, the Dujail case. On October 2, 2006 a spokesman for the Court stated the IST would meet on October 16, 2006 but not decide the case that day, giving reasons that are not credible. Both U.S. lawyers and Iraqi political figures have now stated the decision will be announced on October 25, 2006. The Bush Administration wants the decision before the U.S. Congressional elections on November 7. The decision can come any day. If there are convictions, the sentences will be imposed at the same time.

The Prosecutor has asked for the death penalty for at least five of the eight defendants, including President Saddam Hussein and Vice President Taha Yassin Ramadan. The Chief Judge has frequently expressed his hatred for the defendants saying before the trial that for Saddam Hussein "a trial is not necessary, just a hanging" and during the trial, of every defendant, "they all have had blood on their hands since childhood".

Under the law applicable to this special Iraqi court, a death sentence must be carried out in thirty days. An appeal may be taken within ten days of the sentence, but can be decided immediately, in three, or four days, or several weeks.

The IST is an Instrument of U.S. Policy.

It is not Legal, Independent or Impartial

The creation and operation of the IST is designed and controlled to implement the political will of the United States. The IST is a creature of the 2003 U.S. war of aggression against Iraq implemented during the illegal occupation by the U.S. The Court is illegal. The trial itself is palpably unfair. Its verdict will be victor’s justice for the U.S. and its protégés.

U.S. lawyers wrote the statute creating the IST. The IST is financed by the U.S. Its personnel were selected, trained and are protected by the U.S. military. The U.S. directly influences the conduct of the IST. The Court is not legal, in part because it is an instrumentality of U.S. policy born from a war of aggression, functioning in an illegal occupation.

The IST lacks independence essential to justice. It is subjected to controlling external pressures by the U.S. and by U.S. supported Iraqi political leadership. Three of the Chief Judges of its Trial Chamber have been removed at critical points in the trial by overt external political pressure because the Judges conduct in Court displeased political groups.

Four defense attorneys have been kidnapped, tortured and executed. Court personnel and their families have been killed. The uncontrolled devastating violence in Baghdad and most of Iraq with the resulting pervasive fear, by themselves, make a fair trial impossible.

Judges of the IST are not impartial. They are avowed enemies of Saddam Hussein who claim to be victims of acts by his administration. The Chief Judge in the Dujail case was born and raised in the Kurdish village of Halabja. He asserts his relatives and friends were among those killed in poison gas attacks in 1988. He was twice convicted and sentenced to death by Baathist Courts for violence against the government of Iraq. The IST was created and directed to convict.

The trial has been a corruption of Justice, notoriously unfair and internationally recognized as failing to meet every standard of fairness and due process. The defense has had no opportunity to investigate, find documents (all seized by the U.S.), or locate witnesses because of the violence. The defense has been given no transcript of the raucous testimony and trial proceedings.

The prosecution presented its case leisurely over a period of seven months. The defense was forced to begin immediately and after five consecutive weeks of hearings was cut off from presenting more important witnesses by the Chief Judge who said "If you cannot prove your innocence with 34 witnesses, 100 will not help." Tariq Aziz gave powerful supporting testimony for Saddam Hussein risking his life to do so. He remains in U.S. custody without charges against him.

The Dujail Trial

The charges in the Dujail case involved the reaction of the government of Iraq to an attempt to assassinate President Saddam Hussein in a town named Dujail, and other Iraqi leaders including Tariq Aziz at other places, during the Iran-Iraq war in the summer of 1982. Iran with three and a half times the population of Iraq and $24 billion dollars of weapons purchased by the Shah from the U.S. between 1972 and 1976 had succeeded in forcing Iraq back from Iranian territories and crossed into Iraqi territory along parts of their long common border. Dujail, close both to the border with Iran and Baghdad, was a center of the underground Dawa party which was founded in Iran and committed to the overthrow of the government of Iraq. Like the communist party, the Dawa party was illegal in Iraq.

The car in which President Hussein was traveling through Dujail was fired on and hit. Some persons were seen to flee toward Iran. There were fire fights and skirmishes in the area for several days. Iraqi helicopters bombed the orchards adjacent to the road in which assailants had hidden. The road was the main highway from Baghdad north through Dujail, Tikrit, Samarra and on to Mosul and the border with Turkey, a vital transportation route in wartime.

After several days several hundred people from Dujail were arrested, and interrogated. They were a very small part, not 2%, of the population of the town. Those arrested were transferred to secure detention facilities, first to Abu Graib near Baghdad. The present Abu Graib prison was built later. Most prisoners, often whole families, so the children would not be separated from their parents, were transferred within several months to detention centers in the desert to the west, far from Dujail and the Iranian border. There most remained until 2003, before they were released and returned to Dujail.

The U.S. seized 110,000 Japanese and Japanese-Americans in its West Coast states in February - March 1942, after Japan’s attack on the U.S. on December 7, 1941. It confiscated all their property and held them in desert detention camps until 1945.

The orchards adjacent to the road in Dujail that had provided cover for those who fired at the President’s car, and potentially for Iranians and Iranian sympathizers in the future, were leveled. Ironically two of the defendants, residents of Dujail, owned orchards that were destroyed. All owners were compensated for their loss.

After two years of processing investigations through the Iraqi Judicial system, 148 men, Dawa party members who had confessed, were charged with treason for taking up arms in providing armed support for Iran in the war. Over a period of two weeks the Iraqi Court reviewed the investigative records and the confessions, the equivalent of guilty pleas, and entered judgments of guilt. The death penalty was mandatory.

A year later, in 1985, the death penalties were affirmed after a review by judges and legal experts and orders for execution were signed by the President as required by law. Several defendants had died in the meantime. Others were lost in the prison system. Several may have been males under 18 at the time of the offense. Witnesses for the defense testified they had seen some of the defendants alive in Falluja in recent years.

Because the court refused to order the Court records from the case 1982-85 reviewed, or turned over to the defense, documentary evidence which would have established the judicial independence and fairness of the proceeding was not in the record. The President of that Court was one of the eight defendants in the Dujail trial. He pleaded constantly for the Court records to prove the bona fides of the proceedings only to be shouted down by the Chief Judge.

As Governor of Texas, George W. Bush signed death warrants for 152 persons, including women, retarded persons, aliens in violation of the Vienna Convention on Diplomatic Relations and persons under the age of 18 at the time of the offense. He never granted a pardon, or commutation. See; Helen Prejean, Death in Texas, New York Review of Books, January 2005.

There was general dismay that the Dujail case was even brought, because it was a judicial matter and in wartime in which a million men died. The assassination attempts were minor incidents unknown outside Iraq and unremembered within Iraq. Conduct of the Iran-Iraq war, the invasion of Kuwait, Iraq’s reaction to the Shia and Kurdish uprisings in the wake of the Gulf War and the uses of gases by Iraqi and Iranian forces in the northern Kurdish areas during 1986-88, were major events, internationally known, involving thousands of deaths each. That Dujail was the first case appears incredible and was widely criticized by legal scholars.

The reason the Dujail case was brought at all and as the first case is clearly political.

During the U.S. supported elections in Iraq in which Baath party members were excluded and only candidates opposed to the former government could seek office, Shia and Kurdish leaders who had been part of the U.S. opposition to the government of Saddam Hussein were funded, publicized and made known to the general public. Other candidates were generally unknown outside their villages, tribes, or personal acquaintance.

The Dawa Party held more power in the new parliament than any other party and it elected its members to the highest offices of political power. Both the first Prime Minister after the elections, Jaafari, and the second and present elected Prime Minister Maliki, are leaders of the Dawa Party, the Shia party founded in Iran, which was committed to overthrow the Baathist government and engaged in violent action (terrorist acts by present definition) against the government of Iraq in the last decades of the last century and first years of this century.

The Dujail case, as stated, is based on a three year judicial proceeding during a major war for acts of violence by Dawa Party members, including the attempted assassination of Saddam Hussein, Tariq Aziz and others to overthrow the government of Iraq.

Had the government of Iraq in 1982 sought to deter Dawa Party activity, or wreak vengeance on it for the for its assassination attempts it would have publicly hanged Dawa Party members immediately without an investigation and judicial proceedings, or stuck their heads on posts for all to see, as was done with Nat Turner after his slave rebellion in Southampton County, Virginia. The case is pure vengeance by the Dawa Party now placed in power by the U.S. war of aggression and illegal occupation of Iraq to show its power and exact its revenge.

The Surrender of the Accused to Iraq under Existing Circumstances Will Threaten the Future of International Law and Civil War to the Death

The surrender of President Saddam Hussein and other former officials to the present government of Iraq under existing circumstances will irreconcilably divide Iraq. All the Shia and Kurdish leadership, including President Talabani and Prime Minister Maliki have stated their commitment to executions. Death would be assured. Physical abuse and torture is a threat. The stain on international law and justice would be indelible.

A coalition of 300 Iraqi tribal leaders on September 2, 2006 demanded the release of Saddam Hussein so he could reclaim the presidency and also called for armed resistance against U.S. led forces. The clan chieftains, most of them Sunni Arabs, included the head of the 1.5 million member al-Obedi tribe. They demand that the charges against Saddam Hussein and his co-defendants be dropped. See, e.g., Washington Post, September 3, 2006.

If the defendants in the Dujail case, including President Saddam Hussein and Vice President Taha Ramadan are transferred to the custody of their avowed enemies, the great majority of the Sunni population and other Iraqis who identify with its destiny will see no other alternative than war to the end.

The legality and fairness of the Iraqi Special Tribunal must be reviewed and determined by appropriate organs of the United Nations before the United States surrenders the prisoners it holds over to the present government of Iraq, which cannot protect them if it chose to do so. One needs only consider the report on September 21, 2006 of the U.N. Special investigator on torture before the U.N. Human Rights Council in Geneva on Iraq, which included references to uncontrolled torture by Iraqi government agencies, to understand the danger.

If the U.N. bodies find that the Iraqi Special Tribunal or its actions in this case are illegal, or violate international standards for fairness, then any judgment of guilt and sentence imposed by it must be voided.

At risk are severe damage to international standards of justice, a humiliating failure of international law and irreversible descent into the double scourge of civil war among a people already afflicted with unbearable fear, violence and death.

You are respectfully urged and through you, your government together with all Member States and institutions of the United Nations to act to prevent the transfer of custody of these prisoners who are physically held by the U.S. to the present government of Iraq until a determination by international standards can be made of the legality and fairness of the IST and its trials.

The International Court of Justice should be requested by the General Assembly to render an advisory opinion on the legality of the Dujail trial. You are urged to assist in framing such a request and in enlisting other U.N. Members to that cause.

You are further requested to assist in framing a petition to the U.N. Human Rights Council to determine the independence, the impartiality and the fairness of the Dujail trial and to identify all violations of fundamental human rights in that proceeding.

Your initiative and action are important to peace and international law and justice.

Sincerely,

Ramsey Clark

Enc.

1. Excerpts from selected commentary by scholars, experts and the media on the illegality of the IST.Included are the IST’s lack of independence and impartiality, and the unfairness and lack of due process of the Dujail trial. Also, the present escalating violence in Iraq and the consequences of transferring the accused to the custody of the present government of Iraq, entitled Selected Commentary and Media Reports Relevant to the Dujail Trial, 19pp.

2. English language original of one of defendants Closing Memoranda to the IST in the Dujail case, entitled A Corruption of Justice, 128 pp., 208 footnotes.

These enclosures contain vital information you will want to have available to compare with the IST decision which will probably be made later this month.