Masthead graphic based on a painting by Gudrun Thriemer.

Wednesday, November 08, 2006

"Saddam Hussein sentenced to hang," November 6, 2006.

White House press secretary Tony Snow said yesterday that any notion the end to Saddam Hussein's 9-month trial was timed to produce positive news on the war two days before the American mid-term elections was "absolutely crazy."

Snow did offer the opinion that US voters "ought to be heartened" by the verdict and what it means.

As listeners will probably know by now, this Sunday the former Iraqi president and two of the seven who were also accused were found guilty of crimes against humanity and sentenced to hang for the killing in 1982 of 148 people in the village of al-Dujail.

The facts of the trial describe a campaign of retribution mounted against the population of a small village north of Baghdad where local residents tried to assassinate the former President on July 8, 1982. In the days following the assassination attempt, hundreds of residents were detained in inhumane conditions and tortured. Of the detainees, nearly 100 men were referred to the Revolutionary Court, given death sentences, and executed. By then some 46 others who had also been sentenced had already died under torture. Hundreds of their relatives, including elderly men, women, and children, were banished to a camp in the desert. While in exile, their houses were confiscated, orchards were razed, and property was destroyed. (ICTJ)

"The defendants were charged with crimes against humanity, including murder, deportation, imprisonment, torture, disappearances, and “other inhumane acts”.

Apart from proving these underlying offences, crimes against humanity also require proof of a widespread or systematic attack on a civilian population and proof that defendants must have known they were acting in the context of such an attack. Under Article 406 of Iraq’s penal code, the crime of murder is punishable by death.

None of the defendants have been found guilty of enforced disappearances.

President Bush called the verdict "a landmark event in the history of Iraq."

British Home Secretary John Reid said that the verdict was "the ultimate expression of the sovereignty of Iraq. They are masters of their own destiny," he gushed. "And they have taken a decision today as controllers of that destiny which I think all of us ought to respect."

A Finnish spokesman for the current president of the EU said "The EU opposes capital punishment in all cases and under all circumstances, and it should not be carried out in this case either."

Cardinal Renato Martino, head of the Vatican's Council for Justice and Peace agreed. "For me," the Cardinal said, "punishing a crime with another crime--which is what killing for vindication is--would mean that we are still at the point of demanding an eye for an eye, a tooth for a tooth."

Iranian Foreign Ministry spokesman Mohammad Ali Hosseini said "The Islamic Republic of Iran, remembering the inhuman crimes of Saddam and his allies against the Iraqi, Iranian and Kuwaiti nations, and the necessity of preserving the rights of these nations, welcomes the verdict."

Former US attorney general Ramsey Clark, who heads an international team of lawyers involved in the defence was ejected from Sunday's session because he had sent a memo to Abdul Rahman, the presiding judge, saying that the tribunal was making "a mockery of justice."

For its part, Amnesty International "deplored the decision."

Malcolm Smart, Director of the Middle East and North Africa Programme for AI said, "This trial should have been a major contribution towards establishing justice and the rule of law in Iraq, and in ensuring truth and accountability for the massive human rights violations perpetrated by Saddam Hussein's rule....In practice, it has been a shabby affair, marred by serious flaws that call into question the capacity of the tribunal, as currently established, to administer justice fairly in conformity with international standards."

The International Center for Transitional Justice is a non-governmental organization that assists countries pursuing accountability for past mass atrocities or human rights abuses. The Center works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved. The Center is committed to building local capacity and generally strengthening this emerging field known as transitional justice.

Miranda Sissons, who is head of the ICTJ's Iraq program and one of its trial monitors called the Dujail trial "an ambitious but deeply troubled process....We’re concerned that flaws in the trial process will jeopardize much of the trial’s impact.”

The ICTJ press release notes that

"Trials of large-scale human rights violations can do more than just punish past and deter future international crimes. In particular, tribunals should serve to acknowledge the centrality of law and the independence of the judiciary; uncover the full extent of system crimes; demonstrate and protect standards of fairness; restore victims’ dignity; and help build effective criminal justice institutions.

"Regrettably, due to a variety of challenges, the Iraqi Tribunal has so far fallen short of fulfilling these goals:

"First, the most serious external challenge faced by the Tribunal was that of political interference, both from the Higher National Commission for De-Ba‘athification and from Iraqi political leaders. The removal of judges and other Tribunal officials on political grounds cast doubt on the Tribunal’s independence, and put pressure on the judges’ ability to be impartial.

"Second, the requirements of crimes against humanity were not adequately argued during the course of the trial, nor were the respective roles of the regime’s institutions in committing the crimes demonstrated clearly. Both of these shortcomings resulted in gaps in the evidence.

"Third, the Tribunal failed to meet minimum fair trial guarantees, including: adequately specifying the charges; ensuring the right to confront witnesses; and providing equal opportunities for the prosecution and defense to gather and present their evidence.

"If these objectives are met, the trials can still have enormous impact on building the rule of law in Iraq. The ICTJ believes that the Tribunal’s appeals process should take into account all of the substantive and procedural errors made during the investigative and trial phases, and that the Tribunal should consider the possibility of referring the case back for retrial, if appropriate. A retrial may be the most desirable remedy in this situation as it would allow the Chamber to seek to correct the procedural flaws as well as the evidentiary gaps—the trial’s two major deficiencies."

The ICTJ's Sissons said, “A true measure of a fair and effective court is its ability to correct its own mistakes. ... If the Tribunal properly seizes the appeals process to ensure that earlier errors are corrected, it will strengthen its long-term credibility and the rule of law in Iraq. Iraqis have much to gain from fair trials, but also have much to lose should the Tribunal fail to improve.”

Sunday’s verdicts were delivered in a 40-minute session that gave little indication of the judgment’s detail and reasoning. The ICTJ has said that it will analyze the judgement in greater detail when it becomes available and will issue a more substantive analysis after that.

"The November 5th judgment is not the final step in the Dujail trial. The case will go to cassation, a type of appeal. The appeal may be made on the grounds of errors of law, procedure, or fact. In cases where a sentence of death or life imprisonment is given, under the Iraqi Code of Criminal Procedure, the appeal process occurs automatically and the file is passed to the Cassation Chamber within 10 days of the judgment. Otherwise, individuals can lodge appeals within 30 days. The Cassation Chamber may reverse, revise, or affirm the original judgment of the Trial Chamber, and its judgment is final. Under the Tribunal Statute, sentences must be carried out within 30 days of the final judgment, subject to endorsement by the Iraqi President. The ICTJ opposes the application of the death penalty not just as a matter of principle, but also because it renders all mistakes made during the trial irreversible, as well as deprives victims of other crimes of access to justice."

Louise Arbour, the UN High Commissioner for Human Rights, said quote "Those convicted today should have every opportunity to exhaust teir appellate remedies in a fair way, and whatever the outcome of an appeal. I hope the government will observe a moratorium on execution," she said.

AI's Smart said, quote "Every accused has a right to a fair trial, whatvever the magnitude of the charge against them. This plain fact was routinely ignored through the decades of Saddam Hussein's tyranny. His overthrow opened the opportunity to restore this basic right and, at the same time, to ensure, fairly, accountability for the crimes of the past. It is an opportunity issed and made worse by the imposition of the death penalty."

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