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TRAGIC MISTAKES MADE IN THE TRIAL AND EXECUTION OF SADDAM HUSSEIN MUST NOT BE REPEATED

3 January 2007
Philip Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions, issued the following statement today. Alston is an independent expert appointed by the United Nations Human Rights Council.
“The trial and execution of Saddam Hussein were tragically missed opportunities to demonstrate that justice can be done, even in the case of one of the greatest crooks of our time”, according to the UN Human Rights Council’s expert on extrajudicial executions.
Philip Alston, a law professor at New York University, pointed to three major flaws leading to Saddam’s execution. “The first was that his trial was marred by serious irregularities denying him a fair hearing and these have been documented very clearly. Second, the Iraqi Government engaged in an unseemly and evidently politically motivated effort to expedite the execution by denying time for a meaningful appeal and by closing off every avenue to review the punishment. Finally, the humiliating manner in which the execution was carried out clearly violated human rights law”, said Alston. He acknowledged that “there is an understandable inclination to exact revenge in such cases” but warned that “to permit such instincts to prevail only sends the message that the rule of law continues to be mocked in Iraq, as it was in Saddam’s own time”. “If the current Government of Iraq is serious about marking a departure from the pre-cooked and arbitrary justice meted out by Saddam himself, a number of reforms should be adopted urgently” said Alston. As a first step, he asked that the reportedly imminent execution of two of Saddam’s co-defendants, Barzan Ibrahim Al-Hassan and Awad Hamad Al-Bandar, be halted.
Background
On 30 December 2006, Saddam Hussein Al-Majeed was executed by hanging. Two of his co-defendants — Barzan Ibrahim Al-Hassan and Awad Hamad Al-Bandar— remain on death row for their involvement in crimes against the civilian population of Dujail, where they are likely to be joined by a third co-defendant, Taha Yassin Ramadan, whose sentence of life imprisonment was considered too light by the appeals court.
Iraq is a party to the International Covenant on Civil and Political Rights and has a legal obligation to respect its provisions. The decision to try Saddam Hussein Al-Majeed for his crimes was an important step toward realizing those commitments and making the transition from the rule of men to the rule of law. However, by disregarding its legal obligations in the statute establishing the Iraqi High Tribunal (IHT), throughout the trial proceedings, in considering his appeal, and during his demeaning execution, the Government of Iraq showed contempt for the pleas of the international community that it abide by human rights law. Alston noted that “the Government has left the impression that if the crime is sufficiently horrible, due process no longer matters. Yet it is vital to recall that it is only respect for due process that distinguishes capital punishment from summary execution”. He stressed that there is still time to avoid repeating this mistake with respect to the other defendants placed on death row by the IHT.
Any lawyer who reviews the judgement handed down by the Iraqi High Tribunal and reads the reports made on the trial proceedings by any of the first-hand observers, including in particular those from Human Rights Watch and the International Center for Transitional Justice, must conclude that the conduct of those trials and the content of the resulting judgements reveal significant violations of international human rights law. The trials were characterized by glaring flaws in terms of the procedures used. The legal right of the defendants to challenge evidence adduced against them was severely impeded. For example, the statements of at least 23 prosecution witnesses were read into the court record without giving the defendants any opportunity to question them. The legal requirement that charges be made in detail was disregarded, leaving vague even the theory of liability that the prosecution was attempting to prove much less the material facts that would establish such criminal liability. The IHT Statute includes provisions that appear to have compromised the independence of the IHT from the executive. In broader terms, there is considerable tension between the legal requirement of a fair trial and the disarray of a trial during which there was 80% turnover among the judges and during which three of defense lawyers were murdered. The Working Group on Arbitrary Detention, a UN body composed of independent experts, highlighted many of these violations in a legal opinion on the proceedings which it submitted to the Iraqi Government in September 2006.
After the trial was concluded, the right to have one’s conviction and sentence reviewed by a higher tribunal appears to have been treated as a mere formality. After receiving the judgement, the defendants had only weeks to prepare their appeal, and the Appeals Chamber of the IHT then disposed of all of the complex issues involved in less than a month. This undue haste mocks the due process requirements of international law.
In addition, the right of anyone sentenced to death to seek pardon or commutation was openly violated by Article 27(2) of the statute of the IHT, which provides that, “No authority, including the President of the Republic, may grant a pardon or mitigate the punishment issued by the Court.”
The right not to be subjected to cruel, inhuman or degrading punishment was violated when Saddam Hussein Al-Majeed was mocked by his executioners and then shown to the world by video as a morbid, public spectacle.
The process to date has given the clear sense of a pre-determined rush to execute rather than of a commitment to achieve justice. It is now time to reflect on the mistakes that have been made and to take measures to avoid their repetition.
For Iraq to demonstrate to the international community that it will now take its obligations under international human rights law seriously, will require a change of course. Far-reaching reforms are needed, but a number of basic measures must be taken immediately:
(1) The provisions of the IHT Statute must be immediately amended to ensure their consistency with international law. Especially:
(a) Insofar as it is interpreted to require execution within thirty days of a final judgement, Article 27(2) of the IHT Statute must be amended to ensure that rights to appeal and to seek pardon or commutation are fully respected.
(b) Article 27(2) of the IHT Statute must be amended to permit anyone sentenced to death to petition for pardon or the commutation of sentence, as required by Article 6(4) of the ICCPR.
(c) To ensure the independence of the IHT required by Article 14(1) of the ICCPR, Articles 4 and 33 of the IHT Statute must be amended to eliminate the Government’s powers to remove a judge “for any reason” and to selectively remove members of the Ba’ath Party from serving on the IHT or its staff.
(2) The Government must provide effective protection for all participants in criminal proceedings before the IHT — including defense attorneys, judges, prosecutors, and witnesses — in order to ensure the right to life of the participants and the fairness of the trial pursuant to Articles 6 and 14 of the ICCPR.
(3) The other death sentences inflicted in the Dujail case should be commuted to life imprisonment or other substantial terms of imprisonment. This would prevent more executions on the basis of sentences imposed after a flawed trial, provide time for appeals to be given due consideration and make it possible that these senior members of Saddam’s regime be tried for other atrocities as well.