JURIST Guest Columnist Michael Kelly of Creighton University School of Law says that although Saddam Hussein's defense may argue that he's immune from prosecution as either a present or previous head of state, it's likely the argument will fail...
Among the defenses that can be raised to prosecution for this crime - including lack of knowledge which, if successful, would destroy the prosecution's command responsibility line of criminal culpability - the most legally potent is the defense of sovereign immunity. Saddam's attorneys have indicated their intention to raise this as a complete defense or one that, if accepted, negates all criminal liability. There are two strains of sovereign immunity which the defense will assert: current head of state immunity and former head of state immunity.
The first strain is the most audacious for Saddam's attorneys to assert because, to make current head of state immunity work, they must prove that Saddam is still the president of Iraq. And to prove that, they must show that he was illegally deposed. Thus, it is the argument lurking within the argument that is so potentially explosive, for, as Saddam's attorneys have acknowledged, this means nothing less than proving the American-led invasion of Iraq was illegal under international law, and therefore, by extension, Saddam Hussein is still legally the head of state.
The strategy of putting the invasion of Iraq on trial is certainly a clever one which must be treated carefully by the 3-judge panel trying Saddam. The Iraqi Special Tribunal (IST) is a creation of the Iraqi Governing Council, which in turn was appointed directly by L. Paul Bremmer and the U.S.-led Coalition Provisional Authority. The IST's operating statute was written by Coalition military lawyers, it is funded by the Americans, it is being "advised" by American and other foreign international legal experts, and the U.S. Justice Department has spent $75 million helping the prosecution build its case against Saddam. Consequently, the IST has serious surface legitimacy issues, and it cannot be seen as defending the U.S.-led invasion outright by quashing out of hand the claims of Saddam's attorneys to the contrary.
Saddam's attorneys will co-opt into their argument both legal and political findings, including statements of the war's illegality by U.N. Secretary General Kofi Annan, who noted that such unprovoked cross-border invasions absent Security Council authorization are technically illegal under Article 2(4) of the U.N. Charter. That said, it does not syllogistically follow that Saddam is still Iraq's legal head of state just because the method used to depose him was illegal, especially in the aftermath of Iraqi national elections approving the current government.
While raising the defense of sovereign immunity based on Saddam's status as current head of state will infuse the proceedings with high drama, it will most certainly fail. The IST cannot politically afford to allow a complete defense to preclude Saddam's prosecution, just as it cannot politically afford to truncate the defense from making its case as completely as possible. Moreover, the second strain of sovereign immunity will also not likely succeed.
Although Saddam is undeniably a former a head of state, he can only assert sovereign immunity over official acts that he undertook in his official capacity. Can mass murder of civilians be considered "official acts" triggering such immunity? Probably not. Criminal acts that are so heinous as to be considered jus cogens (peremptory norms prohibited everywhere), such as genocide and crimes against humanity, are not typically considered to be "official acts" for sovereign immunity purposes, and the trend is clearly developing away from allowing political leaders off the hook for such conduct. For example, the British House of Lords found in the 1999 Pinochet extradition case that torture should not be considered an official act for immunity purposes.
Procedurally, to assert these defenses, Saddam's attorneys must couple them with claims of ex post facto application of law because the IST's statute strips sovereign immunity away as a defense. Article 15(c) states:
The official position of any accused person, whether as president, prime minister, member of the cabinet, chairman or a member of the Revolutionary Command Council, a member of the Arab Socialist Ba'ath Party Regional Command or Government (or an instrumentality of either) or as a responsible Iraqi Government official or member of the Ba'ath Party or in any other capacity, shall not relieve such person of criminal responsibility nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in Articles 11 to 14 [Genocide, War Crimes, Crimes Against Humanity, and Violations of Iraqi Law].
Their ex post facto argument will rest on the fact that the IST's statute was adopted after the crimes in question were committed, when Saddam's immunity for the acts would have applied in full force.
This line of argument was also attempted by defense counsel for the Nazi co-conspirators at Nuremberg and soundly rejected by the International Military Tribunal on the grounds that the defendants' conduct amounted to such egregious violations of international law that knowledge of the illegality of those actions should be imputed to them and ex post facto application of the law of the Nuremberg Charter, which reflected international law and which likewise stripped away sovereign immunity, would not be unjust. Thus, Saddam's assertions of sovereign immunity will avail him not. His first trial will continue on its course for the Dujail massacre.
Michael Kelly is Associate Professor of Law at the Creighton University School of Law. His most recent book is Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide and the Trials of Slobodan Milosevic & Saddam Hussein (Peter Lang Publishers 2005), with a foreword by Desmond Tutu.