After the capture of Saddam Hussein by occupying forces the relevant following issues, which have to be evaluated, appear:
1) Determination of Saddam's status,
2) Treatments he is being subjected to or will be subjected to.
3) His trial.
1. Saddam Hussein is a war prisoner. Thus, he is protected by the International Humanitarian Law. He should be treated under the provisions of Geneva Treaties. As former president of the Iraqi Government, he fought with the USA and alliance troops who attacked his country. Consequently Saddam Hussein can not be trialed under the reason that he fought against them. Additionally, it should be noted that, the USA and coalition forces committed an offense against peace as they started to attack Iraq. Saddam Hussein could be trialed if only he performed any action which considered as it violated humanitarian law during the war. Saddam Hussein can be trialed because of his previous crimes. According to the HRA, for instance as he is responsible for torture and executions and the Massacre in Halepçe, he should be trialed.
2. When Saddam Hussein was arrested, he was exhibited to the media. He was subjected to degrading treatments. Now, he is detained by the means of isolation, his lawyers and his relatives are not allowed to visit him; no information about his detention place is given; he is deprived to access any legal aid. But, according to Geneva Treaties, the International Red Cross and his relatives should be informed about his place of detention. The International Red Cross and his family should be given opportunity to visit him. Nobody knows where he is detained. In addition, the treatments he is subjected to and the detention conditions (i.e. whether he is subjected to torture or degrading treatment or not.) are not known by the world's public opinion. Isolation is also contrary to the Geneva Treaties. We have to add that not only Saddam Hussein is detained in above mentioned conditions, but also war prisoners and detainees are treated in violation of the principles of international humanitarian law and human rights law.
3. There are three elements of crimes which are arranged by the international humanitarian law. These are following;
a) Genocide
b) War crimes (War crime of torture, War crime of willful killing, War crime of inhuman treatment, War crime of destruction and appropriation of property, War crime of denying a fair trial, War crime of destroying or seizing the enemy's property. These crimes have ever become invalid.
c) Crimes against humanity (Crime against humanity of murder, Crime against humanity of extermination, Crime against humanity of deportation or forcible transfer of population, Crime against humanity of imprisonment or other severe deprivation of physical liberty)
Who commit these crimes is trialed by an impartial and independent court. They have the rights to enjoy all opportunities in the context of the right to defense in conforming to international humanitarian and human rights law.
Saddam Hussein may be also trialed by an impartial and independent court because of the crimes he allegedly committed.
Indeed, if Saddam Hussein is to be trialed in Iraq, the court should be impartial and independent. Whether national courts can trial someone depends on the sovereignty of a country. Iraq is under USA's military occupation. The administration of Iraq was not approved by the people's will. In any case, the administration is "temporary" as it is defined. They have limited authorities and duties such as preparation of the constitution, organizing just election…etc. The United Nations describes the USA as "occupying force". Thus an occupied country's jurisdiction can not be considered independent or free from the occupying forces will. A court established by an occupying force, the USA and its alliances can not be accepted.
One of the occupying forces, the USA has not ratified or accepted the International Criminal Court. Before it has been occupied, Iraq did not ratify nor recognize the International Criminal Court's jurisdiction either. Accordingly, the International Criminal Court has not the adjudicative authority.
In light of the explanation above mentioned, according to the fair trial principle, Saddam Hussein can only be trialed by an ad hoc court that might be established by the United Nations. Established to judge the crimes committed in previous Yugoslavia and Rwanda, the international courts have these characteristics.
HRA's Demands:
The HRA, who is principally against torture and death penalty, and defenses the right to a fair trial in any case, declares it's following demands to public opinion and the world:
1. We demand that detention place of Saddam Hussein be clarified, the isolation he is subjected to be ended, he is given access to a lawyer; it has to be ensured that his family is able to visit him. He should be examined by independent physicians. He could select his physicians. And by no means he must not be tortured or degraded. We demand that he is protected from torture and ill treatment.
2. Saddam Hussein should be trialed according to the fair trial principles by an ad hoc court which is established by the United States, and which is impartial and independent. He should not be trialed by Specific Iraqi Courts established by occupying forces in Iraq.
3. Saddam Hussein should not be subjected to death penalty. According to the criminal codes, he should not be trialed before any court where death penalty is used, even if the court is international. In spite of the demands, if he is trialed by this kind of court, he should not be subjected to death penalty.
HUMAN RIGHTS ASSOCIATION