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January 20, 2005
Although continued attempts are being made to establish access to
the President of Iraq who has been held without access to a
lawyer, only one meeting has been arranged more than one year
after the detention began. This meeting took place with one of
the lawyers of Committee under strict monitoring (both visual and
audio) whereby two US military officials were present at all
times. This meeting was not under conditions that meet the
minimum standards for access to legal counsel provided by
international law (e.g. in article 14 of the ICCPR). Neither has
this meeting been followed up with additional meetings. It is
estimated that counsel need at least several hours of daily
contact with their client to be able to consult with him and
to
facilitate the preparation of his defense. Unless such access is
immediately provided all charges against the defendant should be
dropped because of the serious violations of his human
rights.
Furthermore, legal counsel's inability to have access to evidence
or formal charges also contributes to the irreparable violation
of defendant's rights. For more than one year, and despite
statements by United States and Iraqi government officials that
huge amounts of evidence exist, no access to any of this evidence
has been granted to defense counsel.
Finally, legal counsel for the President continue to dispute the
legitimacy of the Iraqi Special Tribunal for the following
reasons:
1. The tribunal is the result of an illegal invasion of Iraq
which unequivocally violated international law, namely article
2(4) of the Charter of the United Nations. Attempts to justify
this use of force as somehow justified by Iraq's reaction to UN
Security Council resolutions are inconsistent with statements of
the majority of both the permanent members of the UNSC and the
total membership of this body and are devoid of any legal basis.
To satisfy basic principles of justice any court concerned with
trials in Iraq that have resulted from the United States' illegal
use of force must be able and willing to try American's who have
committed crimes against peace, including American President
George W. Bush.
2. The tribunal is illegal because it is constituted outside the
ordinary Iraqi judicial and as the result of steps by the United
States as the occupying power in Iraq to interfere with the
existing judicial power in Iraq in a manner that renders it
liable to violate international human rights and humanitarian
law. An occupying power is forbidden from destroying the judicial
of an occupied territory and replacing it with a judicial with
allegiance to itself that will not prosecute its own soldiers who
have violated international law. Nevertheless, the United States
did just this in vetting all Iraqi judges for their political
opinions and affiliations and removing
those judges who disagreed with the occupiers' political opinion.
This action contravenes general international law that provides
that an occupation is not sovereignty and therefore prohibits the
occupier from changing the institutions of government when the
changes contribute to the violation of international law.
3. The extraordinary nature of the Iraqi Special Tribunal is
evidenced by the fact that it would have been illegal even under
the Iraqi Administrative Law of 8 March 2004, except for the
special dispensation which is given in that law. Despite the
dispensation, however, the Special Tribunal does not meet the
minimum standards of international law required for a fair trial
and is thus illegitimate.
4. The Iraqi Special Tribunal does not meet the requirement of
being a competent, independent, and impartial tribunal. It is not
competent because it has been established by an occupying power
in violation of international law as an attempt to usurp the
sovereignty of the Iraqi people. It is not independent because it
his been established by the United States as the occupying power
and not a sovereign Iraqi government and because it lacks the
authority and will to trial United States citizens who have
violated international law by illegally invading Iraq. It is not
impartial because the judges remain anonymous and \"faceless
judges\" have been held to be prima facie violation of the
requirement of impartiality.
5. The Iraqi Special Tribunal also violates international law
because it denies defendant's basic fair trial and due process
rights. Defendants have not been able to meet their lawyers in
any meaningful way. Evidence of torture and mistreatment of
defendants has not been investigated. Defendants have been denied
facilities to prepare their defense. Defendants have not been
charged. Defendants have been denied access to any of the alleged
evidence against them. All of these failures constitute
violations of defendants' rights.
Only a tribunal created by international mandate and with truly
impartial judges sitting can try a head of state who has been
captured pursuant to an illegal invasion of his country. The
Iraqi Special Tribunal is not such a tribunal and constitutes a
serious violation of international law.
At the end of December 2004, Mr. Ramsey Clark formally joined the
defense team efforts. He will be responsible for legal action
taken in the United States and contacts with the press in the
United States. He will also advise the legal team being assembled
in Jordan under the auspices of ISNAD.
On Saturday, 22 January 2005, at 7 p.m. EST, C-SPAN will carry a
debate between Mr. Michael Scharf and Dr. Curtis Doebbler about
the legitimacy of the trial of the Iraqi President in Iraq.
N.B. - This report represent the personal view of the author
and is without prejudice or connection to any matter that may be
privileged between a lawyer and his client. Nothing in this
report should be viewed as a comment on the defense case.
Dr. Curtis F.J. Doebbler
3003 Van Ness Street, NW, W623
Washington, D.C. 20008
tel: +1-202-248-1411
fax: +1-206-984-4734
email: human_rights_lawyer@writeme.com
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