Global Policy Forum

By Praful Bidwai*

The manner in which former Iraqi president Saddam Hussein was hanged has provoked revulsion and criticism in many countries around the world including India, home to 120 million Muslims.

Those who oppose the death penalty on principle were joined by critics of the trial process and those appalled by the timing of the execution on the first day of Eid-al-Adha, which marks a holy period in the Muslim calendar. They point out that numerous governments have criticised Hussein's hanging as an instance of "victor's justice". The United Nations has had to correct the first response of the new Secretary-General Ban ki-Moon by recalling the organisation's opposition to capital punishment.

Critics in India were particularly galled at the video clips of the execution, which luridly depicts the obscene taunting of Hussein in his last moments by what "The New York Times" called "a Shi'ite lynch mob". Secular opinion in this country holds that many governments failed to draw the right conclusion from Hussein's prosecution by a special Iraqi court, working under terms set by the occupying powers: namely, that an alternative tribunal with full and proper international legitimacy does exist in the form of the International Criminal Court (ICC) which came into being in 2003.

"It is no mean coincidence that the country that has led the opposition to the ICC, the United States, is also the main occupying power in Iraq and led its invasion the very year the ICC was formed", Prashant Bhushan, a prominent public interest lawyer in India told IPS. "The U.S. refused to have Saddam Hussein tried by an international tribunal that would follow the International Covenant on Civil and Political Rights, to which it and Iraq are signatories. Instead, it appointed the Supreme Iraqi Criminal Tribunal (SICT) and set its rules of procedure, which were heavily biased in favour of the prosecution", adds Bhushan.

Had the ICC tried Hussein for his alleged crimes against humanity, it would have averted the numerous flaws that marked his prosecution by the SICT, noted by the United Nations' Working Group on Arbitrary Detention (UGAD), established by the UN Commission on Human Rights. UGAD received its mandate from the General Assembly and the UN Human Rights Council.

UGAD held that "the deprivation of liberty of Saddam Hussein is arbitrary, being in contravention of Article 14 of the International Covenant on Civil and Political Rights (ICCPR)." The accused were denied the elementary right to defend themselves. Hussein didn't have unimpeded access to his lawyers, nor adequate facilities to prepare his defence. Two of Hussein's lawyers were assassinated. This "seriously undermined his right to defend himself through counsel of his own choosing."

SICT judge Abdel-Rahman, who delivered the final verdict, abruptly, arbitrarily ended the trial in Jun. 2006. He made "statements incompatible with impartiality and the presumption of innocence enshrined in Article 14(2) of the ICCPR." Even before the trial ended, Iraqi Prime Minister Nuri Al-Maliki demanded that Hussein be hanged. More recently, he declared the hanging would take place before the end of the year, thus usurping the judiciary's prerogative. The final procedural clearances were obtained in unseemly haste.

Yet, U.S. President George W. Bush put his stamp of approval on this gross miscarriage of justice by welcoming Hussein's hanging as "an important milestone on Iraq's course to becoming a democracy".

Regrettably, say rights activists, many governments that expressed their "disappointment" at Hussein's execution, continue to oppose the ICC and have not signed or ratified the Rome Statute of 1998 which brought the Court into being. The statute was adopted by 120 countries, but opposed by seven states, including the U.S., China, Iraq, Israel, Libya, Qatar and Yemen. In all 96 countries ratified the statute. India was not among them.

The ICC is empowered to prosecute individuals for serious violations of international law, such as genocide, war crimes and crimes against humanity. War crimes include violations of the Geneva Conventions and of customary international law, willful killing, torture or inhuman treatment, mutilation, attacking or bombarding undefended towns/villages/dwellings/buildings which are not military targets, intentionally directing attacks against civilian populations and committing outrages upon personal dignity.

Crimes against humanity include prohibited acts when committed as a part of a widespread or systematic attack, directed against any civilian population. They comprise extermination of civilians, murder, enslavement, enforced disappearances, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence.

"It is arguable that the U.S. and its allies are prima facie guilty of precisely such crimes", says Prashant Bhushan. "The ICC is the appropriate forum to try them. And President Bush and Prime Minister Tony Blair of Britain are suitable candidates for such prosecution for their acts in Iraq, including torture at the Abu Ghraib prison and killings in Fallujah and many other places."

The John Hopkins School of Public Health in the U.S. estimates that Iraq's occupation has resulted in the avoidable deaths of 655,000 civilians since the country's invasion in March 2003. Even before the war, sanctions imposed at the behest of the U.S. led to the death of an estimated one million Iraqi civilians, half of them children.

"The ICC is the best international forum for combating impunity and bringing to book perpetrators of serious crimes, which often go unpunished", says Usha Ramanathan, a New Delhi-based independent law researcher. "It is ideally placed to achieve justice for all, to act as a court of last resort, to remedy the deficiency of ad hoc tribunals, to deter future perpetrators of heinous crimes, and to have true and lasting peace, based on justice."

The ICC was vigorously promoted by the UN and is related to it through several agreements. Its statute complements the UN charter. The Security Council can refer a particular matter or situation to the ICC, but the Court does not need Security Council approval before starting proceedings. The ICC can try cases referred to it by States Parties, by the Security Council, or by its Special Prosecutor, who can initiate an investigation into a crime that has come to his/her attention.

The ICC statute contains numerous checks and balances to prevent possible misuse. It is based on the principle of complementarity -- that is, it would complement national legal systems, and not act as a substitute for them. The prosecutor cannot start an investigation without permission from a pre-trial chamber of three judges. "The ICC represents a major advance over existing arrangements", says Saumya Uma, coordinator of ICC-India, the Indian Campaign on the International Criminal Court. "It allows individuals to be prosecuted fairly and in conformity with international law in a genuinely global forum on the principle that crimes against humanity and war crimes are the concern of the entire world and not one specific nation-state. Yet, some states have been opposing it on spurious and narrow grounds of ‘sovereignty'."

But, India and the U.S. have joined hands to oppose the ICC. In Dec. 2002, they signed an agreement not to extradite each other's nationals to "any international tribunal without the other country's express consent." The U.S. opposes the ICC because it claims its soldiers and officials would be the target of politically motivated prosecutions, hampering its "peacekeeping" efforts around the world. India ostensibly opposes the ICC because it excludes terrorism from its list of crimes, as well as the first use of nuclear weapons. However, the real reason may have to do with the human rights violations of Indian security forces in Kashmir and the north-east and the impunity it grants in practice to the perpetrators of hate crimes and communal violence of the kind that western Gujarat state witnessed in 2002, when 2,000 Muslims were killed with state connivance or complicity.

"This is what makes the Indian government's position utterly hypocritical,'' says Bhushan. "It has failed to punish the criminals of the Gujarat carnage. And yet, it mouths empty rhetoric about the rule of law and the importance of multilateral institutions. It is not enough for India to ‘regret' Saddam Hussein's hanging. It must act by supporting the ICC." Soon after the hanging India's ruling Congress party condemned it and its official spokesman Janardhan Dwivedi said it smacked of ‘'ad-hoc victors' justice''.

About the Author: The writer is an internationally-known author and rights activist.