Shunpiking Online Vo.4 No.1 Illegality of executions of Mr. Barzan Ibrahim Al-Tikriti and Judge Awad Al-Bandar

ON JANUARY 8, prior to the executions of Barzan Ibrahim Al-Tikriti and Judge Awad Al-Bandar, Dr. Curis F.J. Doebbler, international human rights lawyer and Saddam Hussein's attorney, made an appeal to stop the executions on grounds of their illegality. Shunpiking is posting below the part of the statement as to the illegality of the executions.

The executions of Mr Barzan Ibrahim Al-Tikriti and Judge Awad Al-Bandar on January 15 are illegal and violate international law, particularly international human rights law for the following reasons:

1. The Iraqi Special Tribunal (IST) is illegal

* It was the intended consequence of an illegal war, the crime of aggression

* U.S. President Bush said the war was intended to kill the Iraqi leadership

* International law requires no State recognise the consequences of an illegal action

* It was created in violation of international humanitarian law

* Articles 54 and 64 of the Fourth Geneva Convention prohibit occupiers from creating special courts to try their enemies and from vetting judges for their political alliances

* The trial was unfair "aggressor's justice"

* The range of observers finding the trials before the IST unfair include international NGOs like Human Rights Watch and the Quakers to state actors such as the UN Working Group on Arbitrary Detention and the UN Special Rapporteur on the Independence of Judges and Lawyers

2. The IST's judgment and executions violate Iraqi law

* Iraqi law requires trials be fair. This trial was unfair. Even the Statute of the IST requires the trial be fair.[1]

* Example: Although Judge Bandar claimed he could prove proceedings in 1982-84 -- the essence of prosecution case -- were fair, he was denied 350+ pages of court papers by the IST and prosecution

3. The IST's judgment and the executions violate international human rights law

* The United States and Iraq have ratified the International Covenant of Civil and Political Rights that in Article 14 provides for the right to a fair trial.[2]

* International law prohibits the imposition of the death penalty following an unfair trial

Summary of some of the most Important violations of fair trial in Dujail proceedings

1. Right to be judged by an independent and impartial tribunal (GCIII, art. 84(2) and ICCPR, art. 14(1) and ADRDM, art. XVIII)

* IST under U.S. control as illustrated by fact that U.S. as an occupying power set up IST, vetted the judges, paid all court officials, including judges, trained the judges, and explicitly ordered the judges to make decisions in some cases

* Judge Abdel Rahman claimed that the chief defendant should be executed without trial before becoming a judge of the court

* Judges were politically vetted

2. Right to be informed of charges (GCIII, art. 104 and ICCPR, art. 14(3)(a))

* No formal or adequately defined charges were made until seven months into the trial at the end of prosecution case in May 2006.

3. Right to adequate facilities and time to prepare defense [equality of arms](GCIII, art. 99 and 105 and ICCPR, art. 14(3)(b))

* Prosecution had 130,000 U.S. military, two years and over 200 million U.S. dollars to prosecute case; defense lawyers were volunteers; Iraqi lawyers were chosen by U.S.-backed Iraqi authorities; senior defense lawyers had no access to clients, there were no confidential meetings with clients, requests for know exculpatory evidence were rejected, requests to visit Dujail were rejected

4. Right to lawyer (GCIII, art. 99 and 105 and ICCPR, art. 14(3)(d))

* U.S.-backed Iraqi authorities chose defense lawyers, lawyers defendants asked for were denied access or given only very limited access, four defense lawyers were killed, others threatened, arrested and assaulted.

* U.S. interrogated defendants for months without allowing defense lawyers to be present and likely used this information at trial.

5. Right to public trial and judgment, (ICCPR, art. 14)

* No transcript from proceedings despite U.S. strict video and audio coverage of proceedings with dozens of cameras and release of version of trial to media that was edited to reflect defense in worse light.

6. Tribunal must be established in accordance with law (ICCPR, art. 14(1), GCIV, art. 54 and 64)

* IST established after illegal invasion (crime of aggression) and occupation

* IST established when courts already existed after political vetting of judges as extraordinary court in violation of international humanitarian law.

7. Right to presumption of innocence (ICCPR, art. 14(2))

* Trial judge, U.S. and Iraqi heads of state, numerous Iraqi politicians said defendants guilty before trial and that they should be hung.

8. Right to trial without delay (ICCPR, art. 14(3)(c))

* Defendants held for almost two years before trial started and denied access to a court to challenge their detention during this time.

9. Right to examine witnesses and to call witnesses under same conditions as prosecution (ICCPR, art. 14(3)(e))

* Defense witness led-by court employees, beaten, arrested, threatened, and defense stopped from presenting witnesses

10. Right of appeal (ICCPR, art. 14(3)(5))

* For 3 of 4 weeks of time for appeal trial court refused to provide written judgment, no substantive consideration of main grounds of appeal.

11. Right to communicate with lawyer of own choosing (ICCPR, art. 14(3)(b))

* Senior lawyers were denied right to meet defendants until trial had started and then frequently intimidated or prevented from meeting defendants

12. Right to transmit correspondence (ICCPR, art. 17 and 19 and ADRDM, art. X)

* Legal papers were vetted and often defense lawyers could not provide them to clients

Treaties

1. (Third Geneva) Convention Relating to the Treatment of Prisoners of War (GCIII) [legally binding on U.S.],

2. International Covenant of Civil and Political Rights (ICCPR) [Legally binding on U.S. and continues to apply in Iraq as no U.S. derogation],

3. American Declaration on the Rights and Duties of Man (ADRDM) [This has been found by the Inter-American Commission on Human Rights to reflect the customary international law that is legally binding on the U.S.].

Notes

1. See Report entitled "A Travesty of Justice" at http://international-lawyers.org (under "cases") for details.

2. For a list of specific rights violated see "A Travesty of Justice" at http://international-lawyers.org (under "cases")