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The execution of the president

| 29 December 2006

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  • The execution of President Saddam Hussein would be a grave war crime imputable under international law
  • The US-orchestrated tribunal that sentenced President Saddam Hussein has no legal standing
  • The imminent execution of Iraq’s lawful president is testimony to the gutting of international law by the Bush regime and its criminal partners
President Saddam Hussein is a prisoner of war with protected status under international law.1 Further, he is the lawful president of the Republic of Iraq. He cannot be executed legally by the US occupation.

Under the Interim Constitution of Iraq of 1990 — which remains in force despite the illegal imposition of a permanent Iraqi constitution written by the United States — President Saddam Hussein, like heads of state worldwide, including in the US and Europe, is afforded sovereign immunity to prosecution.2

That the US invaded Iraq illegally and established an illegal political process and a quisling Iraqi government only exacerbates the violation of President Saddam Hussein’s personal and sovereign rights and the affront to the whole of Iraq. His imminent execution is an attempt to establish, de facto, a global state of exception to law. Force cannot make just what law denies.

The US-led invasion of the Republic of Iraq was illegal and cannot be made legal by the execution of Iraq’s lawful president. The occupation is illegal and cannot survive by authoring new atrocities.

This mockery of law

The Iraqi Higher Criminal Court that passed a death sentence on President Saddam Hussein is a farce. Not only is it grounded on illegality (occupying powers under international law are expressly prohibited from changing the judicial structures of occupied states3); the trial itself stands distinguished in legal history by its sheer number of due process and international standard of fairness violations.4

These violations have included, often with systematic effect: American imposed censorship of court proceedings; withholding evidence from the defence; forcible ejection from court of defence lawyers and the placing of defence lawyers under house arrest; denial of defence counsel access to defendants; blatant lack of impartiality of court judges; overt political interference in the selection of court officials and the prejudicing of the trial and trial outcome by statements made by invested political figures — including George W Bush — affirming progress towards, or demanding, execution; the replacement of four of the five originally selected court judges; lack of equality of arms between the prosecution and the defence; refusals to accept key defence submissions, especially motions challenging the competence and legality of the court; violations of key fair trial principles and standards and international humanitarian law5; violation of Iraqi law6; intimidation of witnesses; failure to ensure the security of the defence leading to the murder of three defence lawyers.

Created by Paul Bremer, the Iraqi Higher Criminal Court was never anything but a US-orchestrated puppet court.7 The imposition of a death sentence after an unfair trial stands in direct violation of international law.8

The truth about this court

From day one, this court has been nothing but a smokescreen: an attempt to establish a veneer of legality to an illegal invasion of a sovereign state. From day one, the final conclusion — the illegal execution of Iraq’s lawful president — has been a fait accompli. The only question has been when.

As 2006 ends, the United States is desperate. Defeated militarily on the ground, long defeated politically and morally, the occupation is preparing to open the year 2007 with a barrage of atrocities, including the open murder of Iraq’s lawful president. This, like all other US-authored atrocities in Iraq, will not allow the US and its criminal partners to impose on Iraq a future that is contrary to the fundamental interests of the Iraqi people.

The imminent execution of President Saddam Hussein is a challenge to the world. Its occurrence would mark a watershed in the imposition by force of a global state of exception to law and to international standards of justice and due process.

States are obliged to protect international law and oppose acts that undermine it.9 International law is the arbiter and final guarantor of world peace. When states cannot or fail to act to protect it, or when they act resolutely to destroy it, it is the duty of citizens everywhere to oppose global tyranny by direct action.

Urgent action demands

We demand that legal institutions worldwide, governmental and non-governmental, act now to prevent the illegal execution of President Saddam Hussein.

We demand that all states and the United Nations speak up immediately and oppose and prevent the illegal execution of President Saddam Hussein.

We demand an immediate meeting of the UN Security Council in which must be affirmed the legal basis governing international relations and in particular the fundamental jus cogens norms of international humanitarian law.

We call upon the UN Working Group on Arbitrary Detention to defend its November 2006 conclusion that the detention of President Saddam Hussein is illegal and act to prevent his illegal execution.

We invoke the mandate afforded to the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution to intervene to prevent the illegal execution of President Saddam Hussein.

We call upon the Special Rapporteur on the Independence of Judges and Lawyers to defend his March 2006 conclusion that the Iraqi Higher Criminal Court is questionable, has limited competence and has given rise to serious breaches of international human rights principles and standards. We call upon the rapporteur to intervene to prevent the illegal execution of President Saddam Hussein — a further insult to justice.

We demand that the UN High Commissioner on Human Rights personally intervene to prevent this grave war crime from occurring. No one in authority can claim ignorance as to its imminence.

We affirm that international law is the bequest of generations and an expression of the development of human civilization and that people worldwide, individually and in groups, have a stake in protecting it, and the world peace that depends on it.

We call upon citizens and individuals everywhere to stand up in defence of international law and Iraqi sovereignty and act to prevent the execution of Iraq’s legal president.

The execution of Saddam Hussein would not only be a war crime against one individual and state. It would lend an illusion of legality to illegal acts — both the execution of a lawful president and the invasion and destruction of Iraq. It would be nothing less than a declaration of the death of international law, slain by this criminal Bush administration and its collaborators.

If the execution of President Saddam Hussein will not lead to an international or global war, it sows the seeds, in its overt illegality, and in conjunction with Washington’s exclusion of international law from international relations, for precisely this outcome.

Abdul Ilah Albayaty (BRussells Tribunal Advisory Committee)

Ian Douglas (BRussells Tribunal Advisory Committee)

Karen Parker (BRussells Tribunal Advisory Committee)

Hana Albayaty (BRussells Tribunal Executive Committee)

Dirk Adriaensens (BRussells Tribunal Executive Committee)

Inge Van De Merlen (BRussells Tribunal Executive Committee)

This statement was written by Ian Douglas with the cooperation of Abdul Ilah Albayaty and Hana Al Bayaty, and was first published by the BRussells Tribunal: http://brussellstribunal.org/execution.htm
  1. In January 2004 the US government officially recognized President Saddam Hussein’s prisoner of war status. See Article 3 The Hague IV Regulations, 1907: “The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.” The Third Geneva Convention Relative to the Treatment of Prisoners of War, 1949, provides for the human rights to security of person, privacy, respect, humane treatment, and fair trial. Under international law, no special arrangements can be constituted that adversely affect the rights of persons. See Article 7 of The Fourth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1949.
  2. See Article 40 of the Interim Constitution of Iraq (1990).
  3. See Articles 43 and 55 of The Hague IV Regulations on Laws and Customs of War on Land, 1907; Articles 54 and 64 of The Fourth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1949.
  4. For a full account of the illegality of the Iraqi Higher Criminal Court and the violations of international fair trial principles and standards witnessed during its proceedings see Iraqi Special Tribunal: A Corruption of Justice by Ramsey Clark and Curtis Doebbler (13 September 20
  5. Articles 70 and 65 of The Fourth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1949; Article 14 of the International Covenant on Civil and Political Rights. Article 14 of the International Covenant on Civil and Political Rights requires that courts be established under preexisting law.
  6. The Iraqi Higher Criminal Court is inconsistent with Iraqi law because it violates basic principles of international human rights law that are binding on Iraqi authorities according to Article 44 of the Interim Constitution of Iraq of 1990. Further, the court was formed in violation of processes set forth in Section IV, Articles 60 and 61 of the Interim Constitution and the Iraqi Law on Judicial Organization, the latter illegally annulled by Coalition Provisional Authority Order No 15 of 23 June 2003.
  7. That the occupying power, through the Coalition Provisional Authority, created the Iraqi Higher Criminal Court (formerly the Iraqi Special Tribunal) is established by the fact that Order No 48, containing the statute of the court, had to be signed by Coalition Provisional Authority Administrator L Paul Bremer before it could enter into force.
  8. See Article 6, paragraph 2, of the International Covenant on Civil and Political Rights that prohibits imposition of the death penalty when it does not apply “in accordance with the law in force at the time of the commission of the crime.” The retroactive application of the death penalty violates the Iraqi Penal Code, which states in Article 1: “no act or omission shall be penalized except in accordance with a legislative provision under which the said act or omission is regarded as a criminal offense at the time of its occurrence.” This arbitrary application of the death penalty is also a violation of the right to life in Article 6 of the International Covenant of Civil and Political Rights. See also Articles 2, 4 and 5 of the UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty.
  9. Article 42(2) of the United Nations International Law Commission’s Draft Articles on State Responsibility, representing the rule of customary international law, prevents states from benefiting from their own illegal acts: “No State shall recognize as lawful a situation created by a serious breach …” (emphasis added); Section III(e), UN General Assembly Resolution 36/103 of 14 December 1962, “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States”.
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We negate and we must negate because something in us wants to live and affirm — Friedrich Nietzsche