JURIST Special Guest Columnist John Pace, former Human Rights Chief for the UN Assistance Mission in Iraq, says that the trial of Saddam Hussein has abjectly failed to do justice to his victims, provide a deterrent to future dictators, or generally advance the cause of freedom...
The human rights crimes committed during Saddam's reign are extraordinary and the cruelty and callous non-respect for the right to life, for the right to freedom from torture, have been documented in several reliable reports over the years. These include the reports of the Commission on Human Rights (now replaced by the Human Rights Council) whose Special Rapporteur, (Max van der Stoel of the Netherlands and later Costas Mavromatis of Cyprus) between 1992 and 2003 presented to the international community the aberrations taking place against hundreds of thousands of innocent civilians in Iraq during Saddam's dictatorship. The international community failed then to take effective action to address and redress those aberrations.
This time it has failed again.
Crimes against humanity are defined in the Statute of the International Criminal Court, and jurisdiction is attributed to the national courts; international jurisdiction is a supplementary one and generally speaking, kicks in whenever the national jurisdiction is either unable or unwilling to exercise its jurisdiction.
The Tribunal in the Saddam trial may have been willing, but certainly cannot be said to meet the criteria to enable it to assume jurisdiction. There are several good reasons for this.
In the first place, the Tribunal itself is of doubtful constitutionality the constitution which was voted on in the referendum of 15 October 2006 excludes ad hoc jurisdictions (Article 94). The Tribunal was originally set up as an ad hoc tribunal under the CPA on 10 December 2003. [At that time, the then Acting High Commissioner for Human Rights had shared concerns about the need to ensure a proper trial consistent with international standards, and Paul Bremer had responded, reassuring the A/High Commissioner that the Iraqi Governing Council, where the IST Statute was purportedly being drafted, would ensure that]. In 2005 a series of attempts were made to amend the IST Statute. This culminated in the establishment of the "Supreme Iraqi Criminal Tribunal", which is what the tribunal trying Saddam Hussein is called. In spite of the change of name and the introduction of new elements attempting to 'incorporate' it into the judicial organization of the State, the tribunal arguably remained a special tribunal in all but name.
Secondly, the law setting up the SICT was passed by a Transitional National Assembly who was meant to be elected for one year to draft the constitution, and therefore whose powers to legislate on matters of such national importance may be disputed.
But even assuming that the IST was legally established, it was and remains questionable that you could find any person in Iraq who could possess the degree of objectivity that such a serious trial required. This was confirmed by the conduct of the judges and the corresponding undue interference by the government in changing judges when they appeared to be unsuitable to other 'authorities'.
But even assuming that the judges had the requisite qualities the security situation and the threat to the proper conduct of the proceedings did not allow for a trial to be conducted with the requisite openness and transparency. No less than three members of the defense were assassinated and all were subject to threats on their lives, which, as we all know, cannot be taken lightly in Baghdad. During the trial, defense counsel several times manifested their fear for their lives and those of their friends and relatives.
Furthermore, the proceedings took place in war-like conditions, above and beyond the tight security that such trials warrant whenever and wherever they take place. The proceedings were not accessible to the public, although selected excerpts were broadcast. The little that was shown confirmed the concerns regarding the proceedings.
All this made a mockery of the seriousness of the proceedings that the crimes warranted. After all crimes against humanity are exactly that: it is humanity at large that has an interest that such crimes are punished and punished in a manner that is consistent with international standards.
Has justice been done? The short answer is no: Saddam may have been found guilty, and, more than likely, he will be hanged - as the Prime Minister has just reminded us, by the end of the year.
But justice is not merely made up of a sentence and an execution. For justice to be done, the victims need to be involved; this sentence is for the execution of the 148 victims of Dujail.
But what about the other victims, of the massacres in the north and in the south of the country? What about the terror on anyone who dared exercise freedom of opinion and expression?
What about and the surviving families of the victims, who number in the hundreds of thousands? What about those young men, now in their twenties who were then below the age of thirteen, whose fathers, and brothers above the age of thirteen were carried off to execution in their thousands? Will Saddam's execution bring justice and compensation to them?
And as far as we (humanity) are all involved, how much of a deterrent has this trial provided to the emergence of future dictators who turn on their own people? The answer is none whatsoever.
In Iraq, people are fighting to survive from day to day in a situation where security has never been worse. In Baghdad, the trial was a non-event already since its inception; now more than ever, the mood is to search for ways to survive and if possible to remain in the country when so many are giving up and leaving Iraq, as the country falls apart.
The international community has missed another chance to advance the cause of freedom and justice by allowing these trials to take place in Iraq in this 'jurisdiction'.
John Pace recently completed an assignment as Human Rights Chief for the UN Assistance Mission in Iraq, and more recently as Senior Adviser to the Humanitarian Coordinator for Lebanon following the recent hostilities. He served as Secretary to the United Nations Commission on Human Rights for sixteen years; in 1991-1993 he was the Coordinator of the World Conference on Human Rights, held in Vienna in June 1993. Previous to that he was responsible for Special Procedures and for the UN Technical Cooperation Programme in Human Rights. A native of Malta, he currently resides in Australia, where he is associated with the Australian Human Rights Centre at the University of New South Wales Faculty of Law.