Neo-Conned! Again

by D Liam O'Huallachain

  Moreover, the United States government undoubtedly remains the detaining power over the prisoners of war who we represent. The alleged transfer of authority over the prisoners of war that the occupying power attempted to effect on June 30, 2004, was no more than a further attempt to humiliate our clients in violation of the GPW.

  As the United Nations secretary-general has recently indicated, and as an overwhelming number of the world's most senior international lawyers have repeatedly confirmed for months, the United States' use of force against the people of Iraq is unequivocally an act of aggression and a serious violation of international law. It is, therefore, an eminent matter of international peace and security that the rule of law be restored by your government taking all necessary measures in fulfillment of its treaty obligations to ensure that at the very least the rights of due process of persons suffering as a consequence of the United States' illegal action are guaranteed. Your failure to act sends an unmistakable message to the international community that the rule of international law is ineffective and that all legal means of redress have been exhausted. We implore you not to continue to send such a message.

  It is hoped that these permanent missions to the United Nations will live up to their responsibilities to ensure respect for the rule of law and for the legal obligations they have agreed to uphold by ratifying the Geneva Conventions.

  Other Legal Actions

  On June 29, 2004, a case was filed with the Inter-American Commission on Human Rights, claiming that the United States was violating the right of Mr. Hussein to fair trial, under the American Declaration of the Rights and Duties of Man. (The ADRDM reflects customary international law.) The case also claims that the United States' illegal aggression against Iraq violates the right of every Iraqi to life and to humane treatment. The Commission denied the precautionary measures requested to prevent the attempted turnover of Mr. Hussein to the Iraqi Interim Government. The Commission remains seized of the case, but has indicated that it will not take action on it for the time being.

  Also on June 29, 2004, a case was filed with the European Court of Human Rights, claiming that the United Kingdom was violating the right of the President, under the European Convention on Human Rights, to be protected from the death penalty. The Fourth Chamber of the Court denied the legal team's request for interim measures on July 7, 2004. The Court did ask whether the legal team wished to keep the case on the list, and the team replied affirmatively, that it did wish the case to be considered. Subsequently, it was decided to bring all European states providing support for the American occupation of Iraq into the case. The case claims that these states, as co-occupiers, must take all necessary measures to ensure that the United States does not continue to violate the rights of Mr. Hussein and other Iraqis to life, humane treatment, and fair trial. On March 21, 2005, a communication was sent to the Court indicating that additional time would be needed to complete the submissions that joined the other European states to the case, and on May 23, 2005, the additional information was filed with the European Court of Human Rights.

  Finally, on October 1, 2004, a petition was filed with the UN Working Group on Arbitrary Detention seeking that the detention and treatment of Mr. Hussein be declared a violation of international human rights law, which provides for the human rights of security of person and fair trial. On October 24, 2004, additional information was sent to the Working Group. On February 1, 2005, the Working Group indicated that it could not deal with the case because the case concerns a matter falling under the four Geneva Conventions relating to armed conflict and, as such, falls outside the group's jurisdiction. On February 5, 2005, the legal team, as “Applicant,” responded, pointing out that although the United States declared the Iraqi President to be a prisoner of war, he is not being treated in accordance with the Geneva Conventions. On March 9, 2005, the Working Group indicated that the matter was being referred to the U.S. government for its comments. This is an indication that the Working Group believes there to be a prima facie violation alleged; it has now asked the U.S. government to respond. The U.S. has three months to respond after which the Working Group may make a determination.

  The Iraqi Special Tribunal

  Although the legal team continues attempts to establish regular access to the President of Iraq, as of June 2005 – almost 18 months after the detention began – only two meetings have taken place and both under strict monitoring (both visual and audio) whereby at least two U.S. military officials were present at all times. These meetings do not meet the minimum standards for access to legal counsel provided by international (e.g. Article 14 of the ICCPR) or Iraqi law. It is estimated that counsel needs at least several hours of daily contact with their client to be able to consult with him and to facilitate the preparation of his defense.

  Legal counsel's inability to have routine and continual access to evidence or formal charges also contributes to the irreparable violation of the defendant's rights. Despite statements by United States and Iraqi government officials that huge amounts of evidence exist, after a year and a half still no access to any of this evidence has been granted to defense counsel.

  The creation of the IST was announced on December 10, 2003, by the Interim Governing Council of Iraq – a body appointed by Coalition Provisional Authority Administrator Mr. L. Paul Bremer on July 13, 2003. According to the announcement, it is to consist of panels of five judges, along with up to 20 investigative judges and 20 prosecutors, to try Iraqi nationals and residents for alleged crimes against humanity, war crimes, and genocide committed between July 17, 1968, and May 1, 2003. The IST was reportedly provided by the U.S. government with a budget of $75 million, offices in the American command compound in Baghdad, and various levels of “support” from investigators and other officials.

  In spite of his relative inexperience in war-crimes matters, Mr. Salem Chalabi, the nephew of Mr. Ahmad Chalabi, was named the head of the IST by Mr. Bremer and appointed to the position on May 8, 2004, by the Interim Governing Council. As should have been expected, Mr. Chalabi's appointment spurred immediate controversy.

  According to a New York Times Magazine report,1 Mr. Chalabi's involvement with Iraq and war crimes issues began in 1993 when, as a 30-year-old Northwestern law student, he was asked by an Iraqi dissident to draft an Iraqi National Congress (INC) report requesting that the UN Security Council investigate the Baghdad government on suspicion of war crimes. His anti-Ba'athist activities have also been documented, along with his links to the U.S. Defense, State, and Justice Departments.

  Once appointed head of the IST, Mr. Chalabi began working with the State Department's Pierre-Richard Prosper, U.S. Ambassador-at-Large for War Crimes, to finalize the tribunal's statute. Mr. Prosper has been working for some time on behalf of the current U.S. administration to collect evidence against the Iraqi President with the clear intention, even before the U.S. invasion in March 2003, of prosecuting him for various crimes once he was forcibly removed from power.

  In March 2004, Mr. Gregory W. Kehoe, a trial lawyer from Tampa, Fla., who had been a prosecutor for the International Criminal Tribunals at The Hague, was appointed as Regime Crimes Liaison to assist with the collection of evidence and development of the prosecution strategy.

  In July 2004 a judge from Iraq's Central Criminal Court issued a warrant for the arrest of Mr. Salem Chalabi while he was outside Iraq for involvement in the murder of an Iraqi finance ministry official involved in an investigation of the Chalabi family's business dealings. Though the charges were reportedly dropped sometime around August 2004, then interim Prime Minister Mr. Iyad Allawi claimed, on 16 September 2004, to have demanded and “received the resignation” of Mr. Chalabi.

  ISNAD maintains that the IST is not competent because it was illegally created, nor is it independent or impartial. It therefore constitutes a serious violation of international law.

  1. The tribunal is the result of an illegal invasion of Iraq which unequivocally violated international law, namely Article 2(4) of t
he Charter of the United Nations. Attempts to justify this use of force as somehow justified by Iraq's reaction to UN Security Council (UNSC) resolutions are inconsistent with the statements of the majority of both the permanent members of the UNSC and the total membership of this body and are devoid of any legal basis.

  2. The extraordinary nature of the IST is evidenced by the fact that it would have been illegal even under the Iraqi Administrative Law of March 8, 2004, except for the special dispensation which is given in that law. Despite the dispensation, however, the IST does not meet the minimum standards of international law required for a fair trial and is thus illegitimate.

  3. The IST is also illegal because it is lacking in competency. It is not competent because it has been established outside the ordinary Iraqi judicial power by an occupying power, in violation of international law, as an attempt to usurp the sovereignty of the Iraqi people and to interfere with the existing judicial power in Iraq in a manner that renders it liable to violate international human rights and humanitarian law.

  An occupying power is forbidden from destroying the judicial power of an occupied territory – especially as in this case, when courts and judges already existed in Iraq – and replacing it with a judicial power with allegiance to itself. Indeed, the IST was created by a decree of the occupying power from among judges that have been vetted for their political opinions and affiliations, and excluding those judges who disagree with the occupiers' political opinions. This action contravenes general international law that provides that an occupation is not sovereignty. It is also contrary to the responsibilities of the occupying powers to ensure the integrity of the judiciary in the country under occupation as established in Article 64 of the Fourth Geneva Convention. An occupying power is particularly prohibited from changing the institutions of government when those changes – in this case the establishment of a court that is not impartial nor independent, and does not guarantee the basic rights of the accused – contribute to a violation of international law.

  It is worth noting that the “election” carried out in January 2005 does not change the legal situation in any fundamental sense. The election was carried out at the insistence of the occupation power, and in accordance with the methods and modalities prescribed by the occupation power-even to the point of deciding who could, and who could not, actually stand in the election. It is also important to recognize that the remit of the so-called Transitional National Assembly was determined by the occupation power, and thus it is difficult to assert that the occupation has ceased in any meaningful or legal sense.1

  Another reason why the tribunal is not competent is that it will not be able to prosecute American officials who have committed crimes against peace, including American President George W. Bush, or American soldiers who have committed war crimes or crimes against humanity. To satisfy basic principles of justice, any courts concerned with trials in Iraq that have resulted from the United States' illegal use of force must be able and willing to do so. The international community has attempted to ensure this after learning the lesson from the tribunals established after World War II. Thus, in reaction to the criticism of the Tokyo and Nuremberg tribunals by Judge Bert V. Rollings – that they only dispensed victors' justice – the subsequent ad hoc tribunals that have been created by the UN Security Council can always prosecute all parties to an armed conflict. In the case of Iraq, however, even allied soldiers who admit to committing grave breaches of international humanitarian law have been given inadequately light punishments by U.S. military tribunals, and they cannot be tried by the IST. Their commanders, right up to the commander-in-chief, have been given complete immunity. Only if the United States intends to provide every other governments' senior personnel the same immunity can such action be justified within the remit of the rule of law and especially under the principle of the equal protection of law. If the United States claims this immunity only for itself, grave damage is done to the rule of law.

  To put the leaders of the Iraqi people on trial when the aggressors against the Iraqi people are not held responsible for their actions is the worst kind of vengeance, based on a violation of international law and mocking the rule of law in a manner that will damage it severely for decades to come. If that rule is to be preserved, the world needs to decide its priorities. Justice cannot be done by putting vengeance before the rule of law. The only way for the rule of law to be upheld is to decide upon the responsibility for all persons who have violated international law in relation to the situation in Iraq, starting with those who have perpetrated crimes that the Nuremberg Tribunal called “not only an international crime” but “the supreme international crime” that “contains within itself the accumulated evil of the whole.” A legitimate tribunal should therefore have jurisdiction over the aggressors as well as their victims. As it stands, it is the victims of aggression in Iraq that are being brought to trial.

  4. The IST is also illegal because it is not independent.

  First, it has been established by the United States as the occupying power and not by a legitimate sovereign Iraqi government. The background to the formation of the tribunal is sufficient to illustrate its lack of independence.

  In addition, there are already voiced suspicions that the occupying powers will use this tribunal for political ends. The New York Times Magazine, for example, reported that

  [w]ith the failure, to date, to find weapons of mass destruction, and the ties between Iraq's Ba'athists and al-Qaeda apparently not what the administration led Americans to believe they were, the architects of the invasion are looking to the trials of Hussein and his lieutenants to vindicate the war and fulfill their vision of the taking of Baghdad as a transformative event in the region's history (emphasis mine).1

  Second, Mr. Salem Chalabi, architect of the IST and its charter, is a nephew of Mr. Ahmad Chalabi, the longtime U.S. government favorite who worked for years to encourage an American military overthrow of Mr. Hussein, and who was an associate of U.S. officials such as Mr. Pierre-Richard Prosper and others in the U.S. Defense, State, and Justice Departments who have been and are active in prosecuting alleged war crimes against Mr. Hussein on behalf of the U.S. government. Mr. Salem Chalabi was also involved in a Baghdad law firm called the Iraqi International Law Group, specializing in private-sector investment for Iraq. His partner in the venture was Mr. Marc Zell, former law partner of Mr. Douglas Feith, the outgoing U.S. under secretary of defense for policy. The insidious nature of the appearance of war profiteering in this triangular relationship creates an unfortunate environment for the IST.

  Third, as a result of the refusal of the United Nations to aid in training Iraqi lawyers and judges, based upon concerns over U.S. violations of international law, the U.S. State and Justice Departments are now fulfilling this role with some less-than-adequate trainers and without the experience of the UN. Many of the lawyers involved are American lawyers. But when one looks at the state of American legal education in the realm of public international law, it is hard to imagine that there are many American lawyers qualified to provide the level of training needed by Iraqi judges and prosecutors. Indeed, one noted American legal scholar, Professor John Yoo at Berkley's School of Law in California, has written that the United States can unilaterally suspend the Geneva Conventions. Such a misunderstanding of the law does not bode well for the quality of his students and may unfortunately represent a serious problem in American international legal education. Perhaps it is because of their training that the judges of the IST have continued to deny the Iraqi President almost all of the due process rights to which he is entitled at this stage of the proceedings.

  Fourth, since the judges have apparently been chosen from among those who have been vetted for their political allegiance to the occupying powers, they appear to serve at the convenience of the occupying power as a means of contributing to the occupation.1 This assessment is supported by the failure of the IST to safeguard the rights of the President and other detainees. The failure is illust
rated by the fact that the IST and those holding Mr. Hussein and others have denied them access to their lawyers, prevented them from seeing the evidence against them, and withheld from them the means of preparing their defense. That these serious violations of due process over an extended period have been allowed by both the occupying powers and the judges of the IST raises a strong presumption of cooperation between the two entities.

  Finally, it should be noted that the popular perception of the IST confirms its obvious lack of independence. Mr. Richard Dicker, the director of the international justice program at Human Rights Watch, was reported to have said that he “was enormously troubled that Mr. Salem Chalabi's appointment was announced by the I.N.C., a political entity with a political agenda.”1 Mr. Zuhair Almaliky, the chief investigative judge of Iraq's Central Criminal Court, was reported to have said, “This tribunal is not ours; it is somebody who came from abroad who created a court for themselves …. Chalabi selected the judges according to his political opin-ions.”2 Additionally, Professor M. Cherif Bassiouni, the former chairman of a United Nations commission to investigate war crimes in the former Yugoslavia, summarized the situation as regards the independence of the IST when he reportedly said,

  The trial could be an extraordinary opportunity to send a message to the tyrants of the Arab world …. But the deck is being stacked, and it's going to be obvious …. Where in the world can you say this is an independent judiciary, with U.S. proxies appointing and controlling judges, with U.S.-gift-wrapped cases? … In the Arab world there is already the perception this is a mockery.3