OPINION No. 46/2005 (IRAQ AND UNITED STATES 0F AMERICA) Communication: addressed to the Governments on 9 March 2005. Concerning: Mr. Saddam Hussein al-Tikriti.
Both States are parties to the International Covenant on Civil and Political Rights.
1. (Same text as paragraph 1 of Opinion No. 38/2005.)
2. The Working Group conveys its appreciation to both Governments for having submitted information with regard to this communication.
3. (Same text as paragraph 3 of Opinion No. 38/2005.)
4. In the light of the allegations made, the Working Group welcomes the cooperation of the Governments of Iraq and the United States of America. The Working Group transmitted the replies provided by the two Governments to the source and received its comments.
5. According to the information received from the source, Mr. Saddam Hussein al-Tikriti, born on 28 April 1937, of Iraqi nationality, is the former President of Iraq.
6. According to information publicly available, on 20 March 2003 military forces belonging primarily to the United States and the United Kingdom of Great Britain and Northern Ireland began the invasion of Iraq. On 9 April 2003, Baghdad was formally secured by United States forces and the Iraqi regime headed by President Saddam Hussein was declared to have ended. On 1 May 2003 the President of the United States announced the end of major combat operations in the Iraq war. As recognized in Security Council resolution 1483 (2003), around this date the United States and the United Kingdom “assumed the specific authorities, responsibilities, and obligations under applicable international law … as occupying powers under unified command”.
(a) The Coalition forces established a Coalition Provisional Authority under an Administrator named by the United States, and the Coalition Provisional Authority named an Interim Iraqi Governing Council. On 30 June 2004, the occupation of Iraq ended and Coalition Provisional Authority ceased to exist. As of that date, Iraq reasserted its full sovereignty and an Interim Government assumed full responsibility for governing the country (see paragraphs 1 and 2 of Security Council resolution 1546 (2004)). In accordance with Security Council resolution 1546, however, a multinational force, composed primarily of United States and British military forces, remained in Iraq at the request of the Interim Government.
7. On 13 December 2003, Mr. Saddam Hussein was captured in Tikrit by military forces of the United States, then the occupying power in Iraq, and was taken into custody at an undisclosed location. From that date until the time of submission of the communication, his only contact with his defence team was on 16 December 2004 with one of his attorneys, under supervision of at least two United States military guards who were present during this interview. The source states that despite repeated requests before and after this interview, the lawyers of the defence committee were denied the possibility to hold other meetings with their client.
8. The source alleges that Mr. Saddam Hussein was initially detained as a prisoner of war under the terms of the Third Geneva Convention Relative to the Protection of Prisoners of War. However, the Government of the United States has since then claimed that he is no longer a prisoner of war but a prisoner of the Government of Iraq. The source adds that, despite this claim by the Government of the United States, Saddam Hussein remains under the complete control of that Government.
9. On 10 December 2003, the Iraqi Governing Council established the Iraqi Special Tribunal. According to article 1 (b) of its Statute:
“The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 to 14 below, committed since July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the State of Kuwait.”
The crimes listed in articles 11 to 14 of the Statute are genocide, crimes against humanity, war crimes, and violations of certain Iraqi laws listed in article 14. On 11 October 2005, the President of Iraq signed a new statute and new rules of procedure of the court, which renamed it the Supreme Iraqi Criminal Tribunal.
10. According to information publicly available, Mr. Saddam Hussein appeared before the Supreme Iraqi Criminal Tribunal for his first hearing (arraignment) on 1 July 2004. The hearing took place at a secret location and the defendant was not assisted by counsel. The investigating judge confined himself to ascertaining the identity of the accused. In addition, Mr. Saddam Hussein was informed of seven charges brought against him. Because he was not assisted by legal counsel, he refused to sign the record of proceedings.
11. The source further submits that Mr. Saddam Hussein’s status should be covered by the Third Geneva Convention Relative to the Protection of Prisoners of War, since he was captured because of his participation in an armed conflict. However, he is being denied such protection by the Government of the United States as occupying power and custodian authority, and the Iraqi authorities have brought charges against him before the Tribunal. Therefore, the source is of the opinion that the legal responsibility for his arbitrary detention attaches to both Iraq and the United States.
12. The source alleges that the detention of Mr. Saddam Hussein is arbitrary because he was:
− Not charged in a timely manner;
− Not granted the full privileges of a prisoner of war (for example, to be allowed to communicate with his family without undue delays or to receive documents pertaining to his legal representation);
− Forced to prepare his trial in conditions of complete isolation from the outside world;
− Detained at a secret location;
− Severely restricted in the contact with legal counsel (although the charges raised against him must be of the most serious nature to fall within the mandate of the Tribunal).
(a) The source concludes that the non-observance of international norms relating to fair trial is so serious as to render his pretrial detention, as well as any detention upon conviction, arbitrary. Furthermore, the source alleges that Mr. Saddam Hussein has been denied the right to challenge the legality of his detention. Finally, the source expresses doubts as to whether a fair trial can at all take place under the current security situation in Iraq, before a special tribunal that lacks the independence and impartiality needed.
13. In its reply to the communication, dated 2 May 2005, the Government of Iraq states that Saddam Hussein is awaiting trial, and that it is premature to discuss matters relating to his right to prepare his defence and to be given a fair hearing. As to his place of detention, it is kept secret in order to protect him. The Government further reports that Saddam Hussein was allowed to meet one of his lawyers on 27 April 2005, that this meeting had lasted six hours, and that the lawyer was able to freely interview Saddam Hussein in the presence of an officer.
14. The Government of the United States, in its reply to the communication, underlines that (as also noted by the source) Saddam Hussein is in the physical custody of the multinational force - Iraq (MNF-I) pursuant to arrangements between MNF-I and the Iraqi Ministry of Justice, but is being held under the legal authority of an Iraqi court. The Government of the United States therefore considers that the Government of Iraq is best placed to clarify the legal basis of his detention.
15. In replying to the statement by the Government of the United States, the source argues that as it is the State actually detaining Saddam Hussein, the United States is responsible for respecting his right to security of person. It cannot disclaim this responsibility on the basis of the argument that he is being kept in custody on behalf of the Government of Iraq or that he is not detained on United States territory.
16. As to the reply of the Government of Iraq, the source asserts that this Government confirmed the accuracy of all its allegations. The source argues that Saddam Hussein’s rights to counsel, to prepare his defence, and to a fair hearing have been violated for more than 20 months (as of mid-August 2005). It adds that a single meeting between counsel and defendant in the presence of a United States military officer clearly does not fulfil the requirements of the right to be assisted by counsel. Finally, the source argues that the violation of Saddam Hussein’s rights is exacerbated by the repeated attacks against the house of his defence counsel, as well as by his humiliation through the circulation of pictures showing him in partial undress, and by the Government allowing physical attacks against him while in custody.
17. To be able to spell out the law applicable to the different issues raised by the source and identify the Government(s) responsible under international law for the legality of the detention and the eventual violation of the rights of Mr. Saddam Hussein, if any, the Working Group considers it necessary to highlight the particularity of the circumstances of the case before it.
18. The Working Group would like to stress that Mr. Saddam Hussein was the President of the Republic when armed forces of the United States and the United Kingdom invaded Iraq on 20 March 2003. On 1 May 2003, the Security Council, in its resolution 1483, conceded that the United States and the United Kingdom had assumed the authority, responsibility and applicable obligations under international law in the territory of Iraq. On 13 December 2003, Saddam Hussein was captured in Tikrit by United States military forces. Later, the occupying forces set up the Coalition Provisional Authority under the control of an envoy named by the Government of the United States.
(a) On 30 June 2004, the occupation ended and the full sovereignty of Iraq was restored through the Interim Government. In accordance with Security Council resolution 1546 of 8 June 2004, however, a multinational force, composed primarily of United States and British military forces, remained in Iraq at the request of the Interim Government. At some point before the restoration of sovereignty to Iraq, Mr. Saddam Hussein and other members of the former Iraqi regime were “formally” or “de jure” transferred by the Coalition Provisional Authority to Iraqi custody.
19. According to some developments publicly reported in the case under consideration, on 1 July 2005, Saddam Hussein and 11 other members of the former Baathist leadership appeared before the Supreme Iraqi Criminal Tribunal’s chief investigating judge. The defendants were reportedly informed of the charges against them and questioned by the investigating judge. They did not have legal counsel present, and no full public transcript of the proceedings exists.
20. On 19 October 2005, the trial of Saddam Hussein and seven co-defendants in the Dujail case opened before the Supreme Iraqi Criminal Tribunal. At the hearing, defence counsel and some of the defendants raised three challenges:
− The lack of adequate time given to the defence to study the final dossier and prepare its case;
− The lack of sufficient access to the accused by defence counsel;
− Concerns regarding the court’s legitimacy and competence.
21. The court granted an adjournment of the trial until 28 November 2005. At the time of drafting this Opinion (30 November 2005), a further adjournment had been granted until 5 December 2005.
22. On 20 October 2005, the day following the opening hearing, Mr. Sadoum al-Janabi, counsel of one of Saddam Hussein’s co-defendants, was abducted from his office by armed men. He was subsequently found dead with two bullet wounds to the head.
23. On 8 November 2005, in a drive-by shooting in Baghdad, gunmen killed Mr. Adel Muhammad al-Zubaidi, who had been representing another defendant in the Dujail trial, and injured a further defence lawyer, Mr. Thamer al-Khuzaie.
24. The source alleges that Mr. Saddam Hussein was initially detained as a prisoner of war but has not been granted the full privileges of a prisoner of war under the terms of the Third Geneva Convention Relative to the Protection of Prisoners of War. In their replies, neither the Government of the United States nor the Government of Iraq provided information on this allegation. It is, however, well known that from the early days of the conflict in Iraq, the Government of the United States recognized that the Geneva Conventions applied comprehensively to individuals captured in the conflict there. It also gave assurances that it intended to comply with article 5 of the Third Geneva Convention by treating all belligerents captured in Iraq as prisoners of war unless and until a competent tribunal determined that they were not entitled to this status.6
25. The position of the Working Group is that although the invading coalition stated that the major combat operations had finished on 1 May 2003, the total occupation still continued until
30 June 2004. Therefore, as Saddam Hussein’s detention took place in the context of an international armed conflict resulting in the invasion of Iraq by the United States forces and the armed coalition, his status is protected by the Third Geneva Convention, at least until 30 June 2004.
26. Consequently, and in accordance with paragraph 16 of its methods of work and 14 of its revised methods of work,7 the Working Group will not assess the lawfulness of Mr. Saddam’s detention for the period between 13 December 2003 and 30 June 2004, as it occurred during an ongoing international armed conflict and the Government of the United States recognized that the Geneva Conventions applied to individuals captured in the conflict in Iraq.
27. According to the fifth paragraph of article 119 of the Third Geneva Convention it is permissible for prisoners of war against whom penal proceedings are pending to be detained until the close of such proceedings. The Working Group is not in a position to assess the conformity to the applicable provisions of international humanitarian law (articles 12, 118 and 119 of the Third Geneva Convention to which the United States and Iraq are parties) of the procedure under which Mr. Saddam Hussein was transferred by the Coalition Provisional Authority to the Interim Government of Iraq. However, it does not dispute that, although de jure transferred, Mr. Saddam remains de facto in the custody of the United States.
28. The Government of the United States, in its reply to the Working Group, recognizes that “the detainee is under the custody of the ‘Multinational Force Iraq’ according to an agreement reached with the Minister of Iraqi Justice although he is under the authority of an Iraqi court”.
29. The Working Group concludes that until 1 July 2004 Saddam Hussein was detained under the sole responsibility of the Coalition members as occupying powers or, to be more precise, under the responsibility of the Government of the United States. Since then, and as the Supreme Iraqi Criminal Tribunal is a court of the sovereign State of Iraq, the pretrial detention of a person charged before the Tribunal is within the responsibility of Iraq. In light of the fact that Saddam Hussein is in the physical custody of the United States authorities, any possible conclusion as to the arbitrary nature of his deprivation of liberty may involve the international responsibility of that Government.
30. As of the period of detention subsequent to 30 June 2004, Saddam Hussein appeared before the Supreme Iraqi Criminal Tribunal for his first hearing on 1 July 2004. The hearing took place in a secret location and the defendant was not assisted by counsel. He was informed of the charges brought against him. Because he was not assisted by legal counsel, he refused to sign the record of proceedings. Therefore, whatever the status under which he was detained prior to 1 July 2004, he subsequently became a defendant in a criminal procedure, entitled to the protection of the International Covenant on Civil and Political Rights. As both the United States and Iraq have ratified the Covenant, articles 9 (3) and 14 are applicable to his detention.
31. Although neither the Government of Iraq nor that of the United States have provided detailed answers to the allegations concerning the characteristics of the process and the violations affecting the right of defence, as invoked by the source, the Working Group had access to and gathered information regarding the Supreme Iraqi Criminal Tribunal and its rules of procedure.
32. This Tribunal was established by the Iraqi Governing Council on 10 December 2003, and in the first days of August 2004 the Interim Iraqi Assembly modified the statute that was regulating it. The Working Group does not know the criteria under which the Government of Iraq has nominated the judges who form this tribunal. However, the alleged withdrawal or substitution of several judges is a matter of concern. The atmosphere surrounding the preparation of the trial, which can negatively affect the independence and impartiality of the Tribunal, or at least give the impression that the Tribunal lacks the requisite independence and impartiality, is also a matter of concern to the Working Group.
33. The murder of defence lawyers, the threatening behaviour of the crowd against some of the accused, motivated by past wrongs suffered in the previous regime, might exert undue pressure on the tribunal. More specifically, the fact that capital punishment was recently re-introduced and that no appeal is allowed against conviction and sentence, which is in complete disregard of article 14, paragraph 5, of the International Covenant on Civil and Political Rights, may cast a shadow over the requisite fairness of the process.
34. In his annual report (2005) to the General Assembly, Leandro Despouy, the Special Rapporteur on the independence of judges and lawyers, raised his own concerns about the judicial proceedings taking place before the “Iraqi Special Tribunal”:
“Despite the commitment and personal efforts of the judges and the cooperation provided by several countries in setting up the tribunal, he is concerned that the pressure weighing on the judges and the prevailing insecurity in Iraq may undermine its independence. Moreover, the tribunal itself has its deficiencies, some of which can be traced back to the manner in which it was set up, and in particular to the restriction of its jurisdiction to specific people and a specific time frame; i.e., the tribunal may only try Iraqi citizens for acts committed prior to 1st May 2003, when the occupation began. The tribunal’s power to impose the death penalty demonstrates the extent to which it contravenes international human rights standards. Because it was established during an occupation and was financed primarily by the United States, its legitimacy has been widely questioned, with the result that its credibility has been tarnished. The Special Rapporteur urges the Iraqi authorities to follow the example set by other countries with deficient judicial systems by asking the United Nations to set up an independent tribunal which complies with international human rights standards.”8
35. The Working Group shares these concerns. It is also concerned about the criminal proceedings in Saddam Hussein’s case, notably the right to counsel. Apparently, Saddam can only meet his defence counsel in the presence of United States officials. It is not clear whether he can meet them often enough as would be needed for such a complicated case.
On 19 October 2005, at the hearing, defence counsel and some of the defendants raised three challenges:
− The lack of adequate time given to the defence to study the final dossier and prepare its case;
− The lack of sufficient access to the accused by defence counsel; − Concerns regarding the court’s legitimacy and competence.
36. The Working Group was also made aware that there are discrepancies between the old Iraqi criminal procedure code and the rules of procedure of the Supreme Iraqi Criminal Tribunal on important points, and it is not clear which law prevails.
37. Since procedural flaws amounting to violation of the right to a fair trial may, in principle, be redressed during the subsequent stages of the criminal proceedings, the Working Group would find it premature to take a position on this point now. The Working Group is fully aware that the ongoing judicial procedure in Iraq is aimed at bringing to justice Saddam Hussein and the other highest-ranking leaders of the past Iraqi regime for the serious crimes they allegedly committed against the Iraqi people and some neighbouring countries. The crimes for which they are prosecuted comprise, but are not limited to, genocide, crimes against humanity and war crimes.
38. As one of the mechanisms of the United Nations Human Rights Council (formerly the Commission on Human Rights), the Working Group is deeply committed to the principle that any violation of human rights, whether committed by politicians or others, must be inquired into and redressed, if necessary by putting the perpetrators to justice. Yet, any procedure aiming to put right gross human rights violations, as such welcomed by the Working Group, shall scrupulously respect the rules and standards drawn up and accepted by the international community to respect the rights of any person charged of a criminal offence. The violation of the rights of the person charged may easily backfire. This is particularly true in the present case; any lack of respect for the rights of the leaders of the former regime in the criminal proceedings against them may undermine the credibility of the justice system of the newly emerging democratic Iraq.
39. The Working Group believes that under the circumstances the proper way to ensure that the detention of Saddam Hussein does not amount to arbitrary deprivation of liberty would be to see to it that his trial is conducted by an independent and impartial tribunal in strict conformity with international human rights standards.
40. On the basis of what precedes, the Opinion of the Working Group is that:
(a) It will not take a position on the alleged arbitrariness of the deprivation of liberty of Mr. Saddam Hussein during the period of international armed conflict;
(b) It will follow the development of the process and will request more information from both concerned Governments and from the source. In the meantime and referring to paragraph 17 (c) of its methods of work, it decides to keep the case pending until further information is received.
Adopted on 30 November 2005.
6 Statement made in April 2003: see e.g. “Briefing on Geneva Convention, EPW and war crimes” 7 April 2003, available at: http://www.defenselink.mil/transcripts/ 2003/t04072003_t407genv.html.
7 “The Working Group will not deal with situations of international armed conflict in so far as they are covered by the Geneva Conventions of 12 August 1949 and their Additional Protocols, particularly when the International Committee of the Red Cross (ICRC) has competence.”
8 See (A/60/321), page 15.