The UK solicitor who helped to prepare Saddam Hussein’s defence has called the trial unlawful and said that the case should have been heard at an international court, similar to the one that tried Slobodan Milosevic for war crimes.
Des Doherty — a solicitor in Londonderry who also represented interested parties in the Saville inquiry — told The Times that the trial should not have taken place in Iraq while the country was under occupation by US and other forces. Doherty argued that the court was not a properly sovereign Iraqi institution. “I do understand that others will say that this an Iraqi process and Iraqis were taking care of things, but anyone standing back from it cannot say with hand on heart that this is an Iraqi process,” he said.
Before the invasion, Iraq had an inquisitorial legal process. But the former President was tried under an adversarial legal system recognisable in the US and the UK. “There was no such thing as an arraignment or an indictment under Iraqi law,” Doherty said. “The trial created an image that the American public would have expected. But the system really did not work at all. It’s not just me saying it. Many leading legal academics are saying the same thing and I have no doubt that Amnesty International will say the same.” Last week Human Rights Watch published a report criticising the trial. “America and the other coalition countries must comply with the Geneva Convention — which does not allow them to change the legal process of the occupied country,” Doherty said.
“From the very beginning the Iraqi Special Tribunal was a flawed body because the statute that created it was flawed. The flaws were never properly addressed or ironed out. I don’t believe that the lawyers in Baghdad ever had the opportunity to test that. Unlike here — where there are opportunities to challenge a court through a judicial review — there was no way to challenge the court. The lawyers had no choice but to proceed, but add that they did not accept the legitimacy of the court.”
There was a further reason why the court lacks legitimacy in Doherty’s view. “Legal academics would argue, as I would, that it’s unlawful for anybody to be prosecuted for acts committed prior to an occupation,” he said. “It should have been in an international court outside Iraq, in the way the former Yugoslavia was dealt with.” Doherty said that the arguments and challenges to The Hague court’s powers and roles had already been resolved. “This case did not get the publicity or coverage it maybe should have in the international world,” he said. “The only occasions were when it appeared chaotic — and that’s because it was chaotic.”