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The Oxford Companion to International Criminal Justice edited by Cassese, Antonio (22nd January 2009)

Part B Issues, Institutions, and Personalities, I, Iraqi High Tribunal

Stuart Alford

From: The Oxford Companion to International Criminal Justice

Edited By: Antonio Cassese (Editor-in-Chief)

Iraqi High Tribunal

The Iraqi High Tribunal (IHT), originally called Iraqi Special Tribunal (IST), was established in December 2003 to prosecute the former members of the Ba’athist regime who had governed Iraq prior to a US led invasion earlier that year. The Ba’ath party had seized control of Iraq by a coup in 1968. The following year President Hasan Al-Bakr passed a new penal code which followed an Egyptian model, which was based on the French system (Iraq Penal Code: Law No. 111 of 1969). Two years later a new procedural code was issued (Iraq Law on Criminal Proceedings: Law No. 23 of 1971). Prior to the coup, Iraq had ratified a number of significant conventions; in particular, the GCs of 1949 (ratified February 1956), HC IV of 1907 (ratified December 1967), the Genocide Convention (ratified January 1969) and the ICCPR (ratified January 1971). Saddam Hussein became President of the Republic of Iraq in 1979. Under his leadership the country became increasingly isolated from the international community. Iraq did not sign or ratify the ICCSt., nor did it incorporate the crimes of genocide, crimes against humanity or war crimes into its penal code.

In March 2003 a coalition of armed forces led by the US invaded Iraq. The invasion followed a period of intense diplomatic activity, with debate over whether UN resolutions gave support to an invasion. There was significant academic opinion that such an invasion was a breach of international law. In May 2003 the coalition declared that hostilities were over, and established a civilian administration, known as the Coalition Provisional Authority (CPA). On 22 May 2003 the UN SC recognized the CPA as the governing body of Iraq during the period of occupation (p. 387) (SC Res. 1483). The Resolution affirmed the need for accountability for crimes and atrocities committed by the previous Iraqi regime, and called upon all concerned to comply with the obligations of occupying powers under international law, specifically the GCs and the HR of 1907. The CPA moved towards a transfer of power to the Iraqi people, including the creation of a Governing Council, which the UN SC recognized as broadly representative of the Iraqi people and the principal body of the interim government of Iraq (SC Res. 1500, 14 August 2003 and SC Res. 1551, 16 October 2003). On 10 December 2003 the CPA delegated authority to the Governing Council for the purpose of authorizing the establishment of the IST (CPA Order No. 48 of 2003). The Order also authorized the Governing Council to promulgate elements of crimes for the offences under the jurisdiction of the Tribunal, those elements to be consistent with Iraqi and international law (Section 2(1) CPA Order No. 48). The Order required the statute of the tribunal to include rules for the appointment of court officers, and permitted the Governing Council to delegate to the appointed judges power to promulgate rules of procedure. The Order was annexed by a proposed statute for the Tribunal.

In the early months of the occupation arrests were made of members of the former governing regime. Evidence was presented to the CPA by occupation forces and civil society groups. On 13 December 2003 Saddam Hussein was arrested by US forces and placed in US military custody. On 8 March 2004 the Transitional Administrative Law (TAL) was agreed by the CPA and the Governing Council. The TAL provided for the creation of a National Assembly following elections no later than 31 January 2005. The TAL also confirmed the statute which established the IST. Elections took place on 30 January 2005 and the National Assembly was created.

On 18 October 2005 the Law of the Iraqi Higher Criminal Court (LIHCC) was promulgated by the Presidency Council, following approval by the National Assembly (Law No. 10 of 2005). On the same day, the IST RPE were promulgated. Although there appeared to be some confusion over the title for the new court, it came to use the name Iraq High Tribunal.

There were some differences between the original proposed draft statute, which had been annexed to the CPA Order No. 48 in December 2003, and the statue which was passed by the National Assembly in October 2005. It was the later draft which was used by the IHT in its proceedings.

The temporal jurisdiction of the IHT was limited to the period between 17 July 1968 and 1 May 2003. It had jurisdiction over ‘every natural person whether Iraqi or non-Iraqi resident of Iraq and accused of one of the crimes listed … committed … in the Republic of Iraq or elsewhere’. Those crimes were genocide, crimes against humanity, war crimes and three crimes under Iraqi law (Art. 1(2) LIHCC): intervention in the judiciary; wastage of national resources; pursuit of policies that threaten a war of aggression against an Arab country (Art. 14(1), (2), (3) LIHCC). The court also had jurisdiction to find a crime under Iraqi law proven if one of the elements of the international crimes was not proven (Art. 14(4) LIHCC).

The offences of genocide, crimes against humanity and war crimes are defined in the terms of the ICCSt. The elements of crimes adopted by the IHT mirror the Elements of Crimes of the ICC.

The IHT structure included an office of investigating judges, a trial chamber and a Court of Cassation. There was a separate prosecution office, and an office of administration. Although no defence office was provided for in the LIHCC, one was established by the office of a dministration. Appointments of judges to the IHT were made by the Supreme Juridical Council, upon approval from the Council of Ministers. The Court of Cassation consists of nine judges; three trial chambers of five judges were appointed, making a total judicial body of 24 judges in the trial and cassation chambers. Each chamber elected its own president. All judges appointed were Iraqi and male. Although there is authority in the LIHCC (Art. 3(5)) to appoint non-Iraqi judges with experience of international criminal trials, no such appointments have been made.

The statute and the rules of procedure provided for non-Iraqi experts to act as advisers to the prosecution, investigating judges, trial and appeal chambers, and defence (Arts 7 and 8 LIHCC, and Rules 21 and 30 IST RPE). The non-Iraqi nationals were to provide assistance with international law and experience of similar courts (whether international or otherwise). In fact, very little non-Iraqi assistance was provided. A number of international organizations, including the UN, refused to support the Tribunal because they disagreed fundamentally with the availability of the death penalty. The CPA established the Regime Crime Liaison office to provide support to the Tribunal, particularly during the investigation and pre-trial stage. The judges and prosecutors of the tribunal were provided with training during 2004/05 in the elements and practice of international criminal law by organizations such as the International Bar Association. During the first trial non-Iraqi advice was provided to the trial chamber, but there was no such resource for (p. 388) the Court of Cassation. A non-Iraqi adviser to the defence office was not appointed until the closing stages of the trial.

The LIHCC and the IST RPE require the court to apply the Iraq Criminal Procedure Code together with the IST RPE (Art. 16 LIHCC and Rule 45 IST RPE). The revised rules of procedure and evidence provided additional rules not included within the Iraq Criminal Procedure Code, for instance provisions for the protection of witnesses (Rules 31, 48–51) and disclosure of material (Rules 40–43). The majority of these additional rules were drawn from the rules of international criminal tribunals.

The fair trial guarantees at the IHT (Art. 19 LIHCC) are essentially the same as those under Art. 67 ICCSt. One notable exception is the wording on the right to examine witnesses, which provides the defendant with a right to ‘discuss’ with witnesses any evidence that supports his defence. This reflects the Iraqi code.

In July 2005 the first case file was referred by an investigating judge to a trial chamber. The case charged Saddam Hussein and seven others with crimes against humanity. The allegations arose out of the events in 1982 in Dujail, a small town about 30 km north of Baghdad. The prosecution alleged that, following an assassination attempt on Saddam Hussein in the village, he and the other defendants had pursued acts of retaliation against the civilian community including unlawful detention, torture, and the killing of 148 people. The trial opened on 19 October 2005 and lasted 40 court days over a period of nine months. It was televised, and was widely watched in Iraq. Although members of the prosecution and defence teams were shown on camera, trial judges, with the exception of the presiding judge, were not. The early months of the trial were marked by scenes of disruption; defendants and their counsel heckled judges and witnesses, boycotted proceedings, and behaved disruptively at nearly every session. Away from the court two defence lawyers were assassinated and one was wounded in an assassination attempt. The trial started with Judge Rizgar Amin presiding; after three months he resigned, citing ‘political interference’ as his reason for leaving. There had been widespread criticism of his easy-going style in the Iraqi and international media. On 23 January 2006, Judge Adbul Rahman took over as presiding judge. His appointment was also criticized as he was born in Halabja, the scene of one of the most notorious massacres during the Ba’ath regime, and was therefore felt to be unlikely to be impartial. However, he remained in place through to judgment.

Judgment was given on 5 November 2006. The decision convicted seven of the defendants including Saddam Hussein for crimes against humanity, and acquitted one. Sentences ranged from death down to 15 years’ imprisonment. In accordance with Iraqi criminal procedure, the appeal was heard by the Court of Cassation within 30 days and their judgment was delivered on 26 December 2006. One of the defendants, Taha Yassin Ramadan, who had been sentenced to life imprisonment by the trial chamber, had his sentence increased to one of death on appeal. Iraqi procedure required the executions to be carried out within 30 days of the Court of Cassation’s decision, and Saddam was the first to be hanged on 30 December 2006. His execution was followed by that of three of his co-defendants and the imprisonment of three others.

Following Saddam’s execution, the second trial against Saddam Hussein, which included charges of genocide, continued against other defendants, but the case against the former president was discontinued.

The first trial was widely criticized as not conforming to international standards, and many commentators expressed the view that the IHT suffered from a lack of international assistance. The unstable security situation in Iraq, which persisted throughout the trial, caused concerns over the ability of the tribunal to deliver a fair trial. There was little legal argument raised during the proceedings, and, although lengthy, the judgment of the trial court does not develop the jurisprudence of ICL in any significant way.

stuart alford