6 November 2006
Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, issued the following statement today:
A day after the Iraqi High Tribunal ended its first trial of Saddam Hussein and sentenced him to death by hanging, the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, reiterates his strong objections regarding the conduct of the trial and expresses his concern about the consequences this judgment may have over the situation in Iraq and in the region.
The following are among the main objections of the Special Rapporteur:
· The restricted personal jurisdiction of the tribunal, which enables it only to try Iraqis.
· Its limited temporal jurisdiction. The competence of the tribunal does include neither the war crimes committed by foreign troops during the first Gulf war (1990), nor the war crimes committed after 1 May 2003, date of the beginning of the occupation.
· Its doubtful legitimacy and credibility. The tribunal has been established during an occupation considered by many as illegal, is composed of judges who have been selected during this occupation, including non Iraqi citizens, and has been mainly financed by the United States.
· The fact that the Statute of 10 December 2003 contains advanced provisions of international criminal law which are to be applied in combination with an outdated Iraqi legislation, which allows the death penalty.
· The negative impact of the violence and the insecurity prevailing in the course of the trial and in the country. Since its beginning one of the judges, five candidate judges, three defence lawyers and an employee of the tribunal have been killed. Moreover, another employee of the tribunal has been seriously injured.
· Finally, and most importantly, the lack of observance of a legal framework that conforms to international human rights principles and standards, in particular the right to be tried by an independent and impartial tribunal which upholds the right to a defence.
The Special Rapporteur welcomes the determination of the Iraqi Government to sanction the main authors of the atrocities committed during three decades in the country and its will to see the trial take place in Iraq. At the same time, he deems it essential that this will be expressed through a trial conducted by an independent tribunal, legitimately established, acting in absolute transparency and providing all guarantees for a fair trial, in accordance with international human rights standards. If those conditions are not fulfilled, the verdict of the Iraqi High Tribunal, far from contributing to the institutional credibility of Iraq and the rule of law, risks being seen as the expression of the verdict of the winners over the losers.
The Special Rapporteur urges the Iraqi authorities not to carry out the death sentences imposed, as their application would represent a serious legal setback for the country and would be in open contradiction to the growing international tendency to abolish the death penalty, as demonstrated by the increasing number of ratifications of the Second Optional Protocol to the International Covenant of Civil and Political Rights.
It is clear that the verdict and its possible application will contribute deepen the armed violence and the political and religious polarization in Iraq, bringing with it the almost certain risk that the crisis will spread to the entire region.
The trial of Saddam Hussein has a particular significance not only for the thousands of victims in Iraq but also for its symbolism in the fight against impunity throughout the world. In this context, the Special Rapporteur reiterates its proposal for the establishment of an independent, impartial and international tribunal with all the necessary guarantees to enable it to receive the support of the United Nations, and which will take advantage of the rich experience acquired by other international tribunals. Since the present verdict is subject to appeal, it opens the possibility to consider the establishment of such an international tribunal which can guarantee a fair trial, either by reopening the present trial or by dealing with the appellate stage. This should be done with urgency, to attenuate the negative impact this verdict already started to produce in Iraq and the proliferation of violence in the region. Another reason for the establishment of such a tribunal is that the current trial is only a stage in a larger judicial process, since it only examines seven charges, which include genocide and crime against humanity, amongst the numerous ones attributed to Saddam Hussein and his close collaborators.