RAMSEY CLARK
37 West
12th Street 2B
New York, N.Y. 10011
212-979-1583
fax
October 10, 2006
Memorandum with Exhibits
for Each Member of the
United Nations
Submitted to its
Ambassador to the United Nations
Re:
Illegal and unfair trials of President Saddam Hussein and othersby the
Iraqi Special Tribunal threaten international law.
Review of the legality and fairness of Iraqi Special Tribunal trials by
U.N. agencies is essential before the transfer of physical custody
of the accusedto the present government of Iraq.
The consequences of
surrender of the accused to Iraq on the basis of the Dujail trial, or during the
present violence and instability will threaten the future of international
justice and civil war to the death for Iraq.
Dear Ambassador
The Iraqi Special Tribunal
(IST) in June scheduled October 16, 2006 for the announcement of its final
judgment in its first case, the Dujail case. On October 2, 2006 a spokesman for
the Court stated the IST would meet on October 16, 2006 but not decide the case
that day, giving reasons that are not credible. Both U.S. lawyers and Iraqi
political figures have now stated the decision will be announced on October 25,
2006. The Bush Administration wants the decision before the U.S. Congressional
elections on November 7. The decision can come any day. If there are
convictions, the sentences will be imposed at the same time.
The Prosecutor has asked
for the death penalty for at least five of the eight defendants, including
President Saddam Hussein and Vice President Taha Yassin Ramadan. The Chief Judge
has frequently expressed his hatred for the defendants saying before the trial
that for Saddam Hussein "a trial is not necessary, just a hanging" and during
the trial, of every defendant, "they all have had blood on their hands since
childhood".
Under the law applicable to
this special Iraqi court, a death sentence must be carried out in thirty
days. An appeal may be taken within ten days of the sentence, but can be decided
immediately, in three, or four days, or several weeks.
The IST is an Instrument of U.S.
Policy.
It is not Legal, Independent or
Impartial
The creation and operation
of the IST is designed and controlled to implement the political will of the
United States. The IST is a creature of the 2003 U.S. war of aggression against
Iraq implemented during the illegal occupation by the U.S. The Court is illegal.
The trial itself is palpably unfair. Its verdict will be victor’s justice for
the U.S. and its proteges.
U.S. lawyers wrote the
statute creating the IST. The IST is financed by the U.S. Its personnel were
selected, trained and are protected by the U.S. military. The U.S. directly
influences the conduct of the IST. The Court is not legal, in part because it is
an instrumentality of U.S. policy born from a war of aggression, functioning in
an illegal occupation.
The IST lacks independence
essential to justice. It is subjected to controlling external pressures by the
U.S. and by U.S. supported Iraqi political leadership. Three of the Chief Judges
of its Trial Chamber have been removed at critical points in the trial by overt
external political pressure because the Judges conduct in Court displeased
political groups.
Four defense attorneys have
been kidnapped, tortured and executed. Court personnel and their families have
been killed. The uncontrolled devastating violence in Baghdad and most of Iraq
with the resulting pervasive fear, by themselves, make a fair trial
impossible.
Judges of the IST are not
impartial. They are avowed enemies of Saddam Hussein who claim to be victims of
acts by his administration. The Chief Judge in the Dujail case was born and
raised in the Kurdish village of Halabja. He asserts his relatives and friends
were among those killed in poison gas attacks in 1988. He was twice convicted
and sentenced to death by Baathist Courts for violence against the government of
Iraq. The IST was created and directed to convict.
The trial has been a
corruption of Justice, notoriously unfair and internationally recognized as
failing to meet every standard of fairness and due process. The defense has had
no opportunity to investigate, find documents (all seized by the U.S.), or
locate witnesses because of the violence. The defense has been given no
transcript of the raucous testimony and trial proceedings.
The prosecution presented
its case leisurely over a period of seven months. The defense was forced to
begin immediately and after five consecutive weeks of hearings was cut off from
presenting more important witnesses by the Chief Judge who said "If you cannot
prove your innocence with 34 witnesses, 100 will not help." Tariq Aziz gave
powerful supporting testimony for Saddam Hussein risking his life to do so. He
remains in U.S. custody without charges against him.
The Dujail Trial
The charges in the Dujail
case involved the reaction of the government of Iraq to an attempt to
assassinate President Saddam Hussein in a town named Dujail, and other Iraqi
leaders including Tariq Aziz at other places, during the Iran-Iraq war in the
summer of 1982. Iran with three and a half times the population of Iraq and $24
billion dollars of weapons purchased by the Shah from the U.S. between 1972 and
1976 had succeeded in forcing Iraq back from Iranian territories and crossed
into Iraqi territory along parts of their long common border. Dujail, close both
to the border with Iran and Baghdad, was a center of the underground Dawa party
which was founded in Iran and committed to the overthrow of the government of
Iraq. Like the communist party, the Dawa party was illegal in Iraq.
The car in which President
Hussein was traveling through Dujail was fired on and hit. Some persons were
seen to flee toward Iran. There were fire fights and skirmishes in the area for
several days. Iraqi helicopters bombed the orchards adjacent to the road in
which assailants had hidden. The road was the main highway from Baghdad north
through Dujail, Tikrit, Samarra and on to Mosul and the border with Turkey, a
vital transportation route in wartime.
After several days several
hundred people from Dujail were arrested, and interrogated. They were a very
small part, not 2%, of the population of the town. Those arrested were
transferred to secure detention facilities, first to Abu Graib near Baghdad. The
present Abu Graib prison was built later. Most prisoners, often whole families,
so the children would not be separated from their parents, were transferred
within several months to detention centers in the desert to the west, far from
Dujail and the Iranian border. There most remained until 2003, before they were
released and returned to Dujail.
The U.S. seized 110,000
Japanese and Japanese-Americans in its West Coast states in February - March
1942, after Japan’s attack on the U.S. on December 7, 1941. It confiscated all
their property and held them in desert detention camps until 1945.
The orchards adjacent to
the road in Dujail that had provided cover for those who fired at the
President’s car, and potentially for Iranians and Iranian sympathizers in the
future, were leveled. Ironically two of the defendants, residents of Dujail,
owned orchards that were destroyed. All owners were compensated for their
loss.
After two years of
processing investigations through the Iraqi Judicial system, 148 men, Dawa party
members who had confessed, were charged with treason for taking up arms in
providing armed support for Iran in the war. Over a period of two weeks the
Iraqi Court reviewed the investigative records and the confessions, the
equivalent of guilty pleas, and entered judgments of guilt. The death penalty
was mandatory.
A year later, in 1985, the
death penalties were affirmed after a review by judges and legal experts and
orders for execution were signed by the President as required by law. Several
defendants had died in the meantime. Others were lost in the prison
system. Several may have been males under 18 at the time of the offense.
Witnesses for the defense testified they had seen some of the defendants alive
in Falluja in recent years.
Because the court refused
to order the Court records from the case 1982-85 reviewed, or turned over to the
defense, documentary evidence which would have established the judicial
independence and fairness of the proceeding was not in the record. The President
of that Court was one of the eight defendants in the Dujail trial. He pleaded
constantly for the Court records to prove the bona fides of the proceedings only
to be shouted down by the Chief Judge.
As Governor of Texas,
George W. Bush signed death warrants for 152 persons, including women, retarded
persons, aliens in violation of the Vienna Convention on Diplomatic Relations
and persons under the age of 18 at the time of the offense. He never granted a
pardon, or commutation. See; Helen Prejean, Death in Texas, New York
Review of Books, January 2005.
There was general dismay
that the Dujail case was even brought, because it was a judicial matter and in
wartime in which a million men died. The assassination attempts were minor
incidents unknown outside Iraq and unremembered within Iraq. Conduct of the
Iran-Iraq war, the invasion of Kuwait, Iraq’s reaction to the Shia and Kurdish
uprisings in the wake of the Gulf War and the uses of gases by Iraqi and Iranian
forces in the northern Kurdish areas during 1986-88, were major events,
internationally known, involving thousands of deaths each. That Dujail was the
first case appears incredible and was widely criticized by legal
scholars.
The reason the Dujail case
was brought at all and as the first case is clearly political.
During the U.S. supported
elections in Iraq in which Baath party members were excluded and only candidates
opposed to the former government could seek office, Shia and Kurdish leaders who
had been part of the U.S. opposition to the government of Saddam Hussein were
funded, publicized and made known to the general public. Other candidates were
generally unknown outside their villages, tribes, or personal acquaintance.
The Dawa Party held more
power in the new parliament than any other party and it elected its members to
the highest offices of political power. Both the first Prime Minister after the
elections, Jaafari, and the second and present elected Prime Minister Maliki,
are leaders of the Dawa Party, the Shia party founded in Iran, which was
committed to overthrow the Baathist government and engaged in violent action
(terrorist acts by present definition) against the government of Iraq in the
last decades of the last century and first years of this century.
The Dujail case, as stated,
is based on a three year judicial proceeding during a major war for acts of
violence by Dawa Party members, including the attempted assassination of Saddam
Hussein, Tariq Aziz and others to overthrow the government of Iraq.
Had the government of Iraq
in 1982 sought to deter Dawa Party activity, or wreak vengeance on it for the
for its assassination attempts it would have publicly hanged Dawa Party members
immediately without an investigation and judicial proceedings, or stuck their
heads on posts for all to see, as was done with Nat Turner after his slave
rebellion in Southampton County, Virginia. The case is pure vengeance by the
Dawa Party now placed in power by the U.S. war of aggression and illegal
occupation of Iraq to show its power and exact its revenge.
The Surrender of the
Accused to Iraq under Existing Circumstances Will Threaten the Future of
International Law and Civil War to the Death
The surrender of President
Saddam Hussein and other former officials to the present government of Iraq
under existing circumstances will irreconcilably divide Iraq. All the Shia and
Kurdish leadership, including President Talabani and Prime Minister Maliki have
stated their commitment to executions. Death would be assured. Physical abuse
and torture is a threat. The stain on international law and justice would be
indelible.
A coalition of 300 Iraqi
tribal leaders on September 2, 2006 demanded the release of Saddam Hussein so he
could reclaim the presidency and also called for armed resistance against U.S.
led forces. The clan chieftains, most of them Sunni Arabs, included the head of
the 1.5 million member al-Obedi tribe. They demand that the charges against
Saddam Hussein and his co-defendants be dropped. See, e.g., Washington
Post, September 3, 2006.
If the defendants in the
Dujail case, including President Saddam Hussein and Vice President Taha Ramadan
are transferred to the custody of their avowed enemies, the great
majority of the Sunni population and other Iraqis who identify with its destiny
will see no other alternative than war to the end.
The legality and fairness
of the Iraqi Special Tribunal must be reviewed and determined by appropriate
organs of the United Nations before the United States surrenders the prisoners
it holds over to the present government of Iraq, which cannot protect them if it
chose to do so. One needs only consider the report on September 21, 2006 of the
U.N. Special investigator on torture before the U.N. Human Rights Council in
Geneva on Iraq, which included references to uncontrolled torture by Iraqi
government agencies, to understand the danger.
If the U.N. bodies find
that the Iraqi Special Tribunal or its actions in this case are illegal, or
violate international standards for fairness, then any judgment of guilt and
sentence imposed by it must be voided.
At risk are severe damage
to international standards of justice, a humiliating failure of international
law and irreversible descent into the double scourge of civil war among a people
already afflicted with unbearable fear, violence and death.
You are respectfully urged
and through you, your government together with all Member States and
institutions of the United Nations to act to prevent the transfer of custody of
these prisoners who are physically held by the U.S. to the present government of
Iraq until a determination by international standards can be made of the
legality and fairness of the IST and its trials.
The
International Court of Justice should be requested by the General Assembly to
render an advisory opinion on the legality of the Dujail trial. You are urged
to assist in framing such a request and in enlisting other U.N. Members to that
cause.
You are further
requested to assist in framing a petition to the U.N. Human Rights Council to
determine the independence, the impartiality and the fairness of the Dujail
trial and to identify all violations of fundamental human rights in that
proceeding.
Your initiative
and action are important to peace and international law and justice.
Sincerely,
Ramsey Clark
Enc.
1. Excerpts from selected
commentary by scholars, experts and the media on the illegality of the
IST.Included are the IST’s lack of independence and impartiality, and the
unfairness and lack of due process of the Dujail trial. Also, the present
escalating violence in Iraq and the consequences of transferring the accused to
the custody of the present government of Iraq, entitled Selected Commentary and Media Reports Relevant to
the Dujail Trial, 19pp.
2. English language
original of one of defendants Closing Memoranda to the IST in the Dujail case,
entitled A Corruption of Justice, 128
pp., 208 footnotes.
These enclosures contain
vital information you will want to have available to compare with the IST
decision which will probably be made later this month.