International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
March 2006, Volume 1, Issue 1
 

International Tribunal Spotlight:
Iraqi High Criminal Tribunal

Iraqi Special Tribunal

Introduction

The Iraqi Special Tribunal (IST) was established by the Coalition Provisional Authority (CPA)-appointed Iraqi Governing Council on December 12, 2003. Two days prior, the CPA had promulgated Order Number 48 in which it explicitly delegated full legislative authority to the Governing Council for this purpose. †

Following the formal transfer of sovereignty to Iraqi authorities, the popularly elected Iraqi Transitional National Assembly adopted a slightly amended IST Statute, Iraqi Law No. 10 (2005), on August 11, 2005.

This document, which sets forth the tribunalís jurisdiction, structure, and composition, also includes basic provisions on investigative and trial procedures, rights of the accused, and the enforcement of sentences. It also changed the name of the IST to the Iraqi High Criminal Tribunal.†

Like the original IST, the Iraqi High Criminal Tribunal is intended to serve as an independent judicial body for the investigation and prosecution of the former Iraqi regime of Saddam Hussein.

It is also expressly intended to function as an Iraqi-driven justice mechanism, one that comports with Iraqi notions of legitimacy and Iraqi law as well as with international fair trial standards, such as those set forth in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

The Iraqi High Criminal Tribunal is neither an international nor a so-called hybrid tribunal. Rather, it is an internationalized domestic tribunal, one that may apply a mixture of domestic and international law, including the judicial precedents of international criminal tribunals.†††††

Jurisdiction

The Tribunal, which sits in Baghdad, has jurisdiction over any Iraqi national or resident of Iraq accused of genocide, crimes against humanity, or war crimes which were committed between July 17, 1968 and May 01, 2003.

The definitions of these international crimes, as they appear in the Tribunalís Statute, reflect those codified by the Rome Statute of the International Criminal Court and the statutes of the Rwanda and former Yugoslavia war crimes tribunals. †

The Statute also includes the principle of individual criminal (command) responsibility and precludes reliance on head of state immunity to avoid investigation and prosecution for genocide, crimes against humanity, and war crimes.†

All individuals subject to the High Criminal Tribunalís jurisdiction, regardless of their official position, may also be prosecuted for violations of certain Iraqi laws, including Law Number 7 of 1958 (Arabic). These offenses are: misuse of natural resources, infringing upon the independence of the Iraqi judiciary, and the threat or use of Iraqís armed forces against an Arab country.

The conduct of investigations and courtroom proceedings are regulated by the Iraqi Criminal Procedure Code, in accordance with Iraqís civil law traditions, and by the Tribunalís own Rules of Procedure and Evidence, which, like the Tribunalís Statute, is modeled on those of the former Yugoslavia and Rwanda war crimes tribunals. †

Structure †and Composition

The Iraqi High Criminal Tribunal is divided into three branches: Judicial Chambers, Prosecution, and the Administrative Department.†

The judicial branch includes two trial chambers and a single Cassation (Appeals) Chamber. Each trial chamber consists of five judges. An additional nine judges make up the Cassation Chamber.

The Statute also provides for investigative judges who, in accordance with civil law traditions, prepare cases for trial by gathering evidence that is subsequently entered into a dossier and relied upon to determine whether indictments should be issued and whether cases should be referred to the trial chambers for prosecution.

Trial chamber judges direct courtroom proceedings, review evidence, call and examine witnesses, issue verdicts, and sentence those found guilty.† At the appellate level, judges may reverse, revise, set aside or affirm convictions and sentences.††

Under the direction of the Chief Prosecutor, prosecutors participate in investigations and try cases that are referred to trial.†

The Tribunalís judges and prosecutors are approved by the Council of Ministers upon nomination by the Supreme Judicial Council. All judges, prosecutors, and other staff must be Iraqi nationals. However, non-Iraqi judges who have experience in international criminal justice may be appointed when deemed necessary by the Council of Ministers and the Tribunal President. ††

The judge presently presiding over the Tribunalís first trial involving Saddam Hussein is Raouf Abdel-Rahman. His predecessor, Rizgar Mohammed Amin, resigned in the face of public criticism and citing government interference.†††

The Tribunalís Administrative Department supports the Judicial Chambers and the Prosecution.† It also provides support to defense counsel through a Defense Office.†

Cases of Note

The al-Dujail case, which stems from the execution of close to 150 individuals, mostly Shia, and other alleged crimes committed by government authorities in retaliation for the failed 1982 assassination attempt on Saddam Hussein, commenced in Baghdad on October 19, 2005.† In this matter, Saddam Hussein is joined as a defendant by seven other senior members of his regime, including the former Chief Judge of the Revolutionary Court. The defendants are charged with crimes against humanity based on acts such as premeditated murder, false imprisonment, forcible expulsions, and the destruction of land and property.† ††

If convicted, Saddam and his co-defendants could face the death penalty.†

In total, close to a dozen investigations into allegations of genocide and other serious crimes against Saddam Hussein and other senior Baathists are currently underway. These include investigations into the al-Anfal campaign, the poison gas attack in Halabja, the invasion of Kuwait, and the destruction of the Marsh Arab wetlands in southern Iraq.††

Cost

The Coalition Provisional Authority originally allocated $75 million for the Tribunalís establishment. Some estimates place eventual annual costs at $138 million. According to the Statute, the Tribunalís funding and costs will be borne by the Iraqi State Budget.†††

To date, the United States Government has provided the bulk of international assistance. Much of this assistanceótraining, expert advice, and logistical supportóis coordinated through the US Department of Justiceís Baghdad-based Regimes Crimes Liaison Office (RCLO) and other entities. †

The Tribunal has also benefited to a certain extent, albeit a much a smaller one, from input provided by a handful of international civil society organizations, legal scholars, and practitioners with expertise in international criminal law.†† ††

For More Information

Iraqi Special Tribunal
Law Library of Congress: Trial of Saddam Hussein
Grotian Moment:† The Saddam Hussein Trial Blog
ASIL Insight on the Prosecution of Saddam Hussein

by Andrew Solomon, ASIL Director of Research and Outreach Programs

March 2006

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ASIl & International Judicial AcademyInternational Judicial Monitor
© 2006 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Katherine Brantingham and Andrew Solomon.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editors at IJM@asil.org.