Backgrounders

Memorandum to the Iraqi Governing Council on
‘The Statute of the Iraqi Special Tribunal’

December 2003

bil arabi
    Introduction
  1. Judges and Prosecutors
    1. Judges and Prosecutors should be required to be impartial and independent.
    2. Some Judges should be required to have experience managing complex criminal trials and trials involving serious crimes.
    3. Some Prosecutors should be required to have experience prosecuting complex criminal cases and cases involving serious crimes.
    4. Appellate and review proceedings should maintain efficiency, independence and impartiality.
    5. The Prosecutor should have a greater role in the preparation of the indictment.
  2. Rights of the Accused
    1. Persons under investigation or subject to questioning should be entitled to fundamental guarantees.
    2. Accused persons should be provided with the guarantees of a fair trial in the determination of a criminal charge.
    3. The death penalty should be prohibited.
    4. The Special Tribunal’s principles of criminal law and rules of procedure and evidence should be based on international standards.
  3. Substantive Offenses
    1. The jurisdiction of the Special Tribunal should not include domestic offenses that do not constitute gross violations of human rights or international humanitarian law.
    2. The Special Tribunal should apply the most fully developed definitions of serious crimes under international criminal and humanitarian law.
  4. Witnesses and Victims
    1. The identity and security of witnesses and victims should be protected.
    2. Witnesses and victims should be provided with appropriate counseling and support.
  5. Vetting and Security
    1. Decisions to exclude Ba’ath Party members from the Special Tribunal should be made on a case-by-case basis.
    2. Security should be provided at the Special Tribunal and for its staff.
    Conclusion


Introduction

Human Rights Watch acknowledges the Iraqi Governing Council’s expressed dedication to accountability for serious crimes committed by the former Iraqi leadership. Human Rights Watch believes that justice for serious past crimes is essential, for the victims and their families against whom the crimes were committed and for building respect for the rule of law in Iraq.

Over the years, Human Rights Watch has documented human rights violations in Iraq and pressed for justice for these crimes. We have conducted numerous interviews, collected eyewitness accounts, engaged in forensic exhumations and research missions, and published extensive reports on human rights violations. We played a particularly active role in documenting crimes committed as part of the Anfal campaign in 1988. In 1992, we obtained and analyzed eighteen metric tons of Iraqi state documents. In 1994 and 1995, we urged states to bring a case against Iraq for genocide against the Kurds before the International Court of Justice.

In our recent discussions in Baghdad, many Iraqis explained that justice for serious past crimes is of the utmost importance to ensure that the deeds committed under Saddam Hussein’s rule are exposed to the world. Most Iraqis we spoke with felt strongly that those responsible for the worst crimes must be held to account for the decades of suffering that they caused.

To achieve these goals, it is crucial that trials for gross human rights violations respect the most fully developed standards of international law, and operate efficiently and effectively. This will help to ensure that the trials are seen as legitimate and credible in Iraq, in the region, and in the world. We believe an accountability process in accordance with international fair trial standards will also help to build respect for the rule of law in Iraq.

The international community has gained considerable expertise in the various options for prosecuting persons suspected of genocide, crimes against humanity, and war crimes. This includes expertise obtained through efforts to bring those responsible for the worst human rights violations to justice in the former Yugoslavia, Rwanda, and Sierra Leone. Human Rights Watch has suggested that a mixed Group of Experts comprised of Iraqi and international specialists be created to recommend appropriate accountability mechanisms for more serious and lesser offenders and to facilitate the collection and preservation of evidence. We believe this mechanism would allow Iraqi jurists to leverage the existing international knowledge to ensure a legal process that is maximally effective.

We acknowledge that the Iraqi Governing Council has issued a statute to create an ‘Iraqi Special Tribunal for Crimes Against Humanity’ (‘Special Tribunal’) to investigate and prosecute serious past crimes without the benefit of a mixed Group of Experts. We do not believe this course of action is the most appropriate to ensure that justice is done.

We have significant concerns about the lack of consultation in the drafting of this law. No transparent process for eliciting comments or expertise was established. Despite Human Rights Watch requests to comment on the law in draft form, neither the Coalition Provisional Authority nor the Iraqi Governing Council would provide Human Rights Watch with a copy of it. We believe that the lack of transparency in the drafting of the law may have been among the reasons for the serious gaps in human rights protections in the text that we elaborate below.

There are also important questions concerning the legitimacy under international law of establishing a domestic tribunal like this during an occupation. Significant issues may arise as to whether the justice delivered under the present circumstances will be seen to be fair. We also have concerns, which we discuss below, about moving forward with a tribunal located in Iraq under the current security situation.

While retaining our reservations, we will engage constructively on ‘The Statute of the Iraqi Special Tribunal’ (‘Statute’). The grievous nature of the crimes committed, our historic involvement in pressing for justice for these crimes, and the importance of the trials to Iraq’s post-conflict transition reinforce Human Rights Watch’s commitment to taking all available steps to ensure that the most credible trials possible are conducted.

We believe a Statute and rules of procedure and evidence that are consistent with international standards and include provisions to maximize the efficiency and effectiveness of the Special Tribunal are essential. However, this is only a first step to achieving legitimate and credible trials. The real test will be the fair and effective application of these instruments in practice. This may pose a far more difficult challenge. It will be through the implementation of these instruments that the commitment to justice and accountability in Iraq will be realized.

The Statute includes a number of provisions that are important for effective and efficient trials held in accordance with international human rights, criminal, and humanitarian law. However, other provisions are inadequate to achieve these standards. In our comments, we highlight those areas where we have the greatest concern and set forth recommendations on how the Statute should be amended to address these concerns. This memorandum organizes its discussion into issues relevant to (A) Judges and Prosecutors, (B) Rights of the Accused, (C) Substantive Offenses, (D) Victims and Witnesses, and (E) Vetting and Security. This memorandum is not intended to be an exhaustive analysis. It does not discuss the legitimacy under international law of establishing a tribunal to address serious past crimes in Iraq during an occupation.


A. Judges and Prosecutors

The impartiality, independence, and competence of Judges and Prosecutors are fundamental elements of trials that comply with international fair trial standards. Article 14(1) of the International Covenant on Civil and Political Rights (‘ICCPR’) requires that ‘everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’1 (emphasis added.) The U.N. Guidelines on the Role of Prosecutors, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990, require under Guidelines 1 and 13(a) that Prosecutors ‘shall be individuals of integrity and ability, with appropriate training and qualifications,’ and should ‘carry out their functions impartially.’

Independence of Judges and Prosecutors requires that they must operate independently from the government or other authorities such as those of an occupying power, individuals, public opinion, the media, foreign countries, or international institutions. Impartiality requires that Judges and Prosecutors apply the law equally to all, not adversely discriminate on any ground including nationality, ethnicity, religion, political views or other beliefs, and not participate in any case where they are unable to be impartial.


1. Judges and Prosecutors should be required to be impartial and independent.

We note the requirement that Investigative Judges and Prosecutors act independently and be prohibited from seeking or receiving instructions from any official or other source, pursuant to Articles 7(j) and 8(b) of the Statute. We are concerned by the absence of this requirement for Trial and Appeals Chamber Judges. We recommend that Article 4 of the Statute be amended to provide that Judges appointed to Chambers must act independently and not seek or receive instructions from any government or other source, including the Iraqi Governing Council.

We note the requirements that both Trial and Appeals Chamber Judges and Investigative Judges appointed to the Chambers must have high moral character, impartiality, and integrity pursuant to Articles 5(a) and 7(d) of the Statute. We recommend that Article 8 of the Statute be amended to provide that Prosecutors be required to have high moral character and impartiality as well.

The Statute of the Special Court for Sierra Leone (‘SCSL’), under Article 15(3), and the Statute of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), under Article 16(4), both require that the Prosecutor ‘shall be of high moral character.’ Under Article 42 of the Rome Statute of the International Criminal Court (‘ICC’), the Prosecutor and Deputy Prosecutors are required to be ‘persons of high moral character,’ and ‘[n]either the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground.’

Trial and Appeals Chamber Judges, Investigative Judges, and Prosecutors should be disqualified from cases where their impartiality or independence may reasonably be doubted. We note that Articles 5(f), 7(m), and 8(f) of the Statute provide that Trial and Appeals Chamber Judges, Investigative Judges, and Prosecutors may be ‘disqualified’ from the Special Tribunal in certain circumstances (‘removal’). However, the Statute fails to require disqualification from a particular case, as opposed to removal from the Special Tribunal, where impartiality or independence is not ensured. We recommend that the Statute be amended to require that Trials and Appeal Chamber Judges, Investigative Judges, and Prosecutors be disqualified from any case in which their impartiality or independence might reasonably be doubted on any ground including if they:

  • Were involved in any capacity in a case at the Special Tribunal or a related criminal case at the national level involving the person being investigated or prosecuted;
  • Had a personal interest in the case, including a personal or professional relationship with any of the parties;
  • Performed functions prior to taking office in which an opinion on the case or the parties or their legalrepresentatives could be formed that reasonably could affect impartiality; or
  • Expressed opinions, through media, writing or public actions, that reasonably could affect impartiality.

We recommend that the Statute be amended to provide that decisions to remove or disqualify Judges—including the President of the Chambers—and Prosecutors, be taken by a majority of the permanent Judges of the Special Tribunal. We recommend that the Statute’s provisions regarding removal of the President of the Special Tribunal pursuant to Article 5(f)(3) of the Statute be amended to require that a decision to remove the President from the Special Tribunal be taken by the Governing Council only upon the recommendation adopted by a majority of the permanent judges.We further recommend that the Statute be amended to require that an Investigative Judge, Trial or Appeals Chamber Judge, or Prosecutor subject to disqualification or removal be entitled to present his or her comments on the matter, but that he or she does not participate in the decision.

We believe that such provisions will help to safeguard the fairness of these procedures. Several of the provisions on disqualification and removal described in this section are codified in Rule 15 of the ICTY, SCSL, and the International Criminal Tribunal for Rwanda (‘ICTR’) Rules of Procedure and Evidence. Similar provisions are also codified in Articles 41, 42, and 46 and Rule 34 of the Rome Statute and the ICC Rules of Procedure and Evidence.


2. Some Judges should be required to have experience managing complex criminal trials and trials involving serious crimes.

Articles 5(a) and 7(d) of the Statute require that Investigative Judges and Judges appointed to Chambers possess ‘the qualifications required for appointment to the highest judicial offices,’ and that ‘due account shall be taken of the experience of the judges in criminal law and trial procedures.’ These provisions are inadequate to ensure that Trial and Appeals Chamber Judges and Investigative Judges have relevant experience to ensure that the tribunal is competent as required under Article 14 of the ICCPR.

Trials for genocide, war crimes, and crimes against humanity may be extremely complex. This is due, among other reasons, to the systematic nature of many of these crimes involving numerous persons and underlying acts. The analysis of large amounts of documentary, forensic, and testimonial evidence and classification of evidence by crime scenes, type of crime, and perpetrator may be an extraordinarily complicated undertaking. It may be necessary to build extensive databases with sophisticated cross-referencing capacities.

The Investigative Judge’s ability to conduct an investigation that assembles the necessary evidence to establish criminal responsibility will profoundly affect whether or not those who are responsible for the crimes are convicted and their grievous crimes exposed. The capacity of Trial Judges to examine witnesses and manage the courtroom and for Trial and Appeals Chamber Judges to assess evidence and apply the relevant law will be crucial in ensuring that the proceedings are efficient and fair.

We recommend that the Statute be amended to require that Investigative Judges and Trial and Appeals Chamber Judges have relevant experience to ensure that the Special Tribunal can effectively investigate and adjudicate cases involving serious past crimes. In this regard, we recommend that:

  • Article 5(a) of the Statute be amended to require that at least some of the Judges who are appointed to each Trial Chamber and the Appeals Chamber be required to have experience adjudicating complex criminal trials and cases involving international humanitarian, human rights, and criminal law; and
  • Article 7(d) of the Statute be amended to require that at least some of the Investigative Judges who are appointed to the Special Tribunal have experience conducting complex criminal investigations and cases involving international humanitarian, human rights, and criminal law.

Criminal trials in Iraq traditionally have involved only brief proceedings, lasting anywhere from a few hours to a few days. Moreover, the isolation of Iraqi jurists from the outside world during Ba’ath Party rule restricted access to jurisprudence and practice on international criminal and humanitarian law that has emerged in the past decade. At the same time, international judges have gained experience working on cases involving serious crimes at the ICTY, SCSL, and ICTR. Accordingly, we recommend that the requirement that judges appointed to Chambers be Iraqi nationals under Article 28 of the Statute be amended to permit non-Iraqi nationals who have relevant expertise to be appointed as Trial and Appeals Chamber Judges and Investigative Judges.

We note that under Article 4(d) of the Statute, the ‘Governing Council, if it deems necessary, can appoint non-Iraqi judges who have experience in the crimes encompassed in this statute, and who shall be persons of high moral character, impartiality and integrity.’ (emphasis added.) This provision is not sufficient to ensure that at least some jurists with relevant experience trying complex criminal cases and cases involving serious crimes sit on each judge panel.

Allowing non-Iraqi nationals to sit as Judges on the Special Tribunal alongside Iraqis will not cede ownership over the Special Tribunal’s decisions to outsiders. Instead, such participation will complement the knowledge and expertise of Iraqi professionals to ensure that the accountability process achieves its desired objectives. The sharing of expertise between Iraqi and international professionals will also enhance the capacity of the Iraqi justice system more generally.

We note that the Statute also mandates that non-Iraqi nationals be appointed to the Chambers and Tribunal Investigative Judges ‘to act in advisory capacities or as observers’ under Articles 6(b) and 7(n). We believe that advisors and observers can play an important role in supporting the work of the Special Tribunal. However, advising and observing simply is no substitute to appointing Trial or Appeals Chamber Judge, or an Investigative Judge with relevant experience sharing responsibility for adjudicating and investigating these cases. We strongly recommend that the non-Iraqi advisors and observers be appointed in addition to some Trial and Appeals Chamber Judges and Investigative Judges with relevant experience.

We also believe that the advisors and observers appointed to the Chambers and Tribunal Investigative Judges should provide as much substantive assistance as possible to ensure that the Special Tribunal applies the most fully developed standards of international law. Articles 6(b) and 7(n) of the Statute require that the role of non-Iraqi nationals appointed as advisors and observers will be to:

  • ‘[P]rovide assistance to the judges with respect to international law and the experience of similar tribunals (whether international or otherwise), and to monitor the protection by the Tribunal of general due process of law standards;’ and
  • ‘[P]rovide assistance to the Tribunal Investigative Judges with respect to the investigations and prosecution of cases covered by the this Statute (whether in an international context or otherwise), and to monitor the protection by the Tribunal Investigative Judgesof general due process of law standards.’

We recommend that Articles 6(b) and 7(n) of the Statute be amended to require that the advisors and observers provide assistance specifically on international human rights, criminal, and humanitarian law to the Chambers, and to the Tribunal Investigative Judges in addition to assistance in investigations and prosecution of cases. We believe that this will help enable the advisors and observers to more fully support the Special Tribunal.


3. Some Prosecutors should be required to have experience prosecuting complex criminal cases and cases involving serious crimes.

The Statute fails to ensure that Prosecutors have relevant experience to prosecute serious past crimes. In fact, it is devoid of any requirements regarding experience of Prosecutors.

The ability of the Prosecutor to mount a focused prosecution strategy will be crucial to ensure the effectiveness of the trials. Experience at the ICTY and the ICTR has shown that failure to develop such strategies can hinder prosecution of important suspects as scarce resources are expended on less significant cases. To help ensure a successful prosecution strategy, we recommend that Article 8 of the Statute be amended to require that at least some Prosecutors have experience prosecuting complex criminal cases and cases involving international human rights, humanitarian, and criminal law. Accordingly, we recommend that Article 28 of the Statute be amended to provide that Prosecutors may be non-Iraqi nationals. We believe that permitting some non-Iraqi nationals with relevant experience to be appointed as Prosecutors will enable Iraqi Prosecutors to complement their knowledge with international expertise gained from prosecuting serious crimes.

Article 8(j) of the Statute provides that non-Iraqi nationals must be appointed as advisors and observers to ‘provide assistance to the prosecutors of the Tribunal with respect to the investigations and prosecution of cases covered by this Statute (whether in an international context or otherwise), and to monitor the performance of the Prosecutor.’ As with Judges, the appointment of advisors and observers to the Prosecutions Department by itself is insufficient to assure effective prosecutions. We strongly recommend that non-Iraqi advisors and observers be appointed in addition to some Prosecutors with specific experience prosecuting genocide, war crimes, and crimes against humanity cases.

We believe that advisors and observers appointed to the Prosecutions Department should be utilized as much as possible to provide assistance regarding the most fully developed standards of international law. We recommend that the Statute be amended to require advisors and observers to provide assistance in international human rights, criminal, and humanitarian law, in addition to assistance in investigations and prosecutions.


4. Appellate and review proceedings should maintain efficiency, independence and impartiality.

We note that Article 7(k) of the Statute permits appeals of decisions by a Tribunal Investigative Judge and Article 25(a) of the Statute permits appeals from ‘persons convicted by the Trial Chambers’ or from the Prosecutor. We believe that limiting appeals of decisions at trial to persons who are convicted or the Prosecutor will undermine the efficiency and fairness of proceedings. It could allow decisions at the early stages of the trial that will later be reversed to affect the course of the entire trial. We recommend that the Statute be amended to permit appeals to the Appeals Chamber with regard to the following decisions during trial prior to a final verdict:

  • A decision with respect to jurisdiction or admissibility;

  • A decision granting or denying release of the person being prosecuted; and

  • A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

Additionally, we believe that safeguarding the independence of proceedings requires that Judges appointed to the Appeals Chamber should not be permitted to review cases that they heard at trial. Article 4(c)(i) of the Statute addresses this in part by requiring that ‘[n]o member of any Trial Chamber can simultaneously be a member of the Appeals Chamber or a Tribunal Investigative Judge.’ We recommend that this provision be supplemented to require that no member of a Trial Chamber to which a case is or has been assigned be permitted to hear appeals of decisions from that case.


5. The Prosecutor should have a greater role in the preparation of the indictment.

As discussed above, we believe the prosecution strategy must be well tailored to secure convictions of those who are responsible for the most serious crimes. We note that Article 8(h) provides that Prosecutors ‘shall have the right to be involved in the investigative stages of a case and shall be the individual who prosecutes such case […].’ Under Article 18(d) of the Statute, ‘[u]pon a determination that a prima facie case exists, the Tribunal Investigative Judge shall prepare an indictment [...].’ Under Article 19(a) of the Statute, ‘[i]f the Chief Tribunal Investigative Judge issatisfied that a prima facie case has been established by the Tribunal Investigative Judge, then he/sheshall confirm the indictment.’

We believe that the Prosecutor should have a greater role in the preparation of the indictment to ensure that the Prosecutor can implement a successful prosecution strategy. Accordingly, we recommend that Articles 18 and 19 of the Statute be amended to require that the Investigative Judge prepare the indictment in consultation with the Prosecutor.


B. Rights of the Accused

We acknowledge the inclusion of many of the international fair trial standards for protection of the accused as enshrined in Article 14 of the ICCPR under Article 20 of the Statute. However, numerous human rights protections are absent from the Statute, particularly protections at the early stages of proceedings.

Given the nature of the crimes in question, the trials are likely to be highly charged and to elicit powerful emotions. As a result, the Special Tribunal will need to take every precaution to ensure that the rights of the accused are safeguarded from the earliest moment. We believe that the Special Tribunal should adopt and apply the highest standards of international human rights in its treatment of accused, including those contained in the Universal Declaration of Human Rights; the ICCPR; the U.N. Standard Minimum Rules for the Treatment of Prisoners adopted by the U.N. Economic and Social Council in 1957; and the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the U.N. General Assembly in 1988.

Explicitly incorporating the protections contained in these instruments into the Statute will significantly contribute to the fairness of the proceedings, and the perception that the trials are legitimate and credible. Below, some of the protections lacking in the Statute that pose the greatest concern are discussed.


1. Persons under investigation or subject to questioning should be entitled to fundamental guarantees.

The Statute provides only limited explicit protections for individuals at the early stages of proceedings, specifically during investigation and questioning. We recommend that the Statute be amended to define explicit rights during an investigation and for suspects during questioning. We believe that enumerating the following protections for persons during an investigation and questioning will more fully ensure the fairness of the trials.

During an investigation, persons should be entitled to:

  • Be free from arbitrary arrest or detention;
  • Not be compelled to incriminate themselves or to confess guilt;
  • Be protected from any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; and
  • Be questioned in a language they understand, or to be provided with free and competent interpretation services, if necessary.

We note that under Article 18(c) of the Statute, suspects who are questioned are entitled to assistance by counsel of choice and without payment if the suspect does not have the means to pay for it. In addition to this protection and the rights during an investigation discussed above, we recommend that suspects should be entitled to:

  • Be informed, prior to questioning, that there are grounds to believe that he or she committed a crime under the jurisdiction of the Special Tribunal;
  • Remain silent without such silence being considered an indication of guilt; and
  • Be questioned with counsel present unless he or she waives this right.

Some of these provisions are codified in Rule 42 of the ICTY, ICTR, and SCSL Rules of Procedure and Evidence and Article 9(1) of the ICCPR explicitly requires that, ‘[n]o one shall be subjected to arbitrary arrest or detention.’ Similar provisions are also codified in Article 55 of the Rome Statute.


2. Accused persons should be provided with the guarantees of a fair trial in the determination of a criminal charge.

As stated above, we acknowledge the inclusion of many of the international fair trial standards for protection of the accused in the determination of a criminal charge under Article 20 of the Statute as enshrined in Article 14 of the ICCPR.

However, we are concerned that the Statute does not require that the accused be proven guilty beyond a reasonable doubt. Article 20(b) of the Statute states that ‘[e]veryone shall be presumed innocent until proven guilty before the Tribunal in accordance with the law.’

While the ICCPR does not explicitly state that guilt must be proven beyond a reasonable doubt, the U.N. Human Rights Committee has stated in its General Comment to Article 14(7) of the ICCPR that ‘[b]y reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt.’ The Rome Statute similarly requires under Article 66(3) ‘the Court must be convinced of the guilt of the accused beyond reasonable doubt.’ Accordingly, we recommend that Article 20 of the Statute be amended to explicitly require that the burden of proof for a conviction be beyond a reasonable doubt.

It is unclear from the Statute whether trials in absentia by the Special Tribunal may be permitted. While there is no absolute prohibition on trials in absentia under international law, trials in absentia compromise the ability of an accused to exercise his or her rights under Article 14 of the ICCPR, including the right to be present during the trial, to defend oneself through counsel of choice, and to examine witnesses. The Rome Statute, under Article 63, explicitly prohibits trials in absentia at the ICC. We believe that trials in absentia would undermine the legitimacy of the Special Tribunal and recommend that the Statute be amended to explicitly prohibit trials in absentia. The Special Tribunal should, however, be able to take necessary measures to preserve evidence in order to ensure that a subsequent trial in the presence of the accused is possible.


3. The death penalty should be prohibited.

The death penalty is not prohibited under the Statute. Under Article 24(a) of the Statute, penalties for offenses ‘shall be those prescribed by Iraqi law […].’ The death penalty is permissible under Iraqi law for certain offenses in some circumstances. Under Article 24(e) of the Statute, penalties that ‘do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents.’

We are aware that there may be a strong opinion in support of the death penalty in Iraq. However, permitting the death penalty will undermine the credibility of the Special Tribunal by sending the message that the Tribunal is exacting vengeance rather than rendering justice.

Human Rights Watch opposes the death penalty in all circumstances due to its inherent cruelty. International human rights law, as codified in Article 6 of the ICCPR, favors the abolition of capital punishment. In addition, recent state practice recognizing that the death penalty violates basic human rights has fueled a growing movement around the world to eliminate the death penalty. Many countries, including all countries that are members of the European Union, are united in their opposition to the death penalty in all circumstances. Additionally, the ICTR, ICTY, SCSL, and Rome Statutes do not permit the death penalty as an option for punishment of war criminals, providing another clear indication of the international community's rejection of capital punishment in all cases.

We believe that the Special Tribunal should place particular emphasis on buttressing prohibitions against cruel and inhuman treatment such as the death penalty due to the brutality of the alleged crimes. To do otherwise would blur the distinction between rule under the Ba’ath Party and governance in post-conflict Iraq based on the rule of law and human rights. For all of these reasons, we believe that the legitimacy and credibility of the trials will be seriously compromised if the Special Tribunal permits the death penalty, and strongly recommend that Article 24 of the Statute be amended to explicitly prohibit the death penalty.


4. The Special Tribunal’s principles of criminal law and rules of procedure and evidence should be based on international standards.

We believe that the Special Tribunal should apply the most fully developed standards of international law to help ensure the legitimacy and credibility of the Special Tribunal.

Article 17(a) of the Statute provides that the general principles of criminal law will be the Iraqi criminal law as of 1968, the Iraq Criminal Code of 1969, and the Criminal Procedure Code of 1971 subject to the ‘provisions of this Statute and the rules made thereunder.’ Article 17(b) of the Statute provides that the Trial and Appeals Chamber, ‘may resort to the relevant decisions of international courts or tribunals as persuasive authority for their decisions.’ (emphasis added.)

Iraqi criminal law does not adequately ensure protection of the rights of accused. Among the provisions of concern in Iraq’s Criminal Procedure Code of 1971 (‘CPC’) are:

  • Confessions obtained through physical coercion are admissible, ‘if there is no causal link between the coercion and the confession or if the confession is corroborated by other evidence which convinces the court that it is true or which has led to uncovering a certain truth […]’ (Par. 218 of the CPC);
  • Counsel may be excluded from the questioning of a suspect during an investigation if the magistrate or the investigator determines ‘if the matter in hand so requires,’ (Par. 57(A) of the CPC); and
  • Proceedings may be closed to the public if ‘the court decides that all or part should be held in secret […] for reasons of security or maintaining decency’ (Par. 152 of the CPC).

Reliance on Iraqi criminal law and criminal codes renders Article 17 of the Statute insufficient to ensure that trials are held in accordance with the most fully developed international standards. Reliance on this law could undermine the legitimacy of the Special Tribunal by opening the door to abuse and violations of the rights of the accused.

We recommend that Article 17 be amended to require that Iraqi law should not serve as the basis for principles of criminal law where such provisions are inconsistent with international human rights, criminal, and humanitarian law. We further recommend that Article 17(2) be amended to provide that the Trial and Appeals Chambers should resort to and apply jurisprudence from international and hybrid international criminal tribunals where appropriate.

Article 15(b) of the Statute provides that individual criminal responsibility and liability for punishment should be determined in accordance with the Statute and ‘the provisions of Iraqi criminal law.’ For the same reasons described above, we recommend that Article 15(b) of the Statute be amended to require that criminal responsibility and liability for punishment be determined in accordance with the Statute and Iraqi criminal law, unless it is inconsistent with international human rights, criminal, and humanitarian law. We further recommend that Article 15 be amended to provide that individual criminal responsibility and liability for punishment should be determined in accordance with jurisprudence, statutes, and rules of procedure and evidence from international and hybrid international criminal tribunals where appropriate.

Article 16 of the Statute provides that the ‘President of the Tribunal shall draft rules of procedure and evidence […and] shall be guided by the Iraqi Criminal Procedure Law.’ As the Iraqi criminal law does not ensure international standards of fair trial, as described above, we recommend that the Statute be amended to require that the rules of procedure and evidence be guided by internationally accepted principles. The statutes and rules of procedure of international and hybrid courts are more consistent with internationally accepted standards and would serve as appropriate guidance for the Special Tribunal rules of procedure and evidence.


C. Substantive Offenses


1. The jurisdiction of the Special Tribunal should not include domestic offenses that do not constitute gross violations of human rights or international humanitarian law.

We are concerned by the inclusion of offenses under Article 14 of the Statute that do not constitute gross violations of human rights or international humanitarian law.

It might be argued by some that the inclusion of offenses of lesser gravity may provide additional means to convict individuals for these offenses when evidence is lacking to obtain a conviction for more serious crimes. However, convictions for offenses that are significantly incongruous with the gravity of genocide, war crimes, and crimes against humanity, will undermine the Special Tribunal’s efforts to address the most serious crimes. Prosecuting these crimes could also divert resources from cases involving genocide, war crimes, and crimes against humanity charges.

Accordingly, we recommend that the following offense be deleted from Article 14(b) of the Statute: ‘wastage of national resources and the squandering of public assets and funds, pursuant to, inter alia, Article 2(g) of Law Number 7 of 1958, as amended.’ Additionally, to the extent that provisions of the offense listed under article 14(a), ‘[f]or those outside the judiciary, the attempt to manipulate the judiciary or involvement in the functions of the judiciary, in violation, inter alia, of the Iraqi interim constitution of 1970, as amended,’ do not constitute gross violations of human rights or international humanitarian law, we recommend that these provisions also be deleted from the Statute.


2. The Special Tribunal should apply the most fully developed definitions of serious crimes under international criminal and humanitarian law.

We note the general consistency of the definitions of genocide, crimes against humanity, and war crimes under Articles 11, 12, and 13 of the Statute respectively with international criminal and humanitarian law. To ensure that the Statute reflects the most fully developed internationally recognized definitions of these serious crimes, we recommend that the Statute be amended to include the following additions that are included in the Rome Statute:

  • ‘Enforced sterilization’ under Articles 12(a)(7) and 13(b)(22) and (d)(6) of the Statute as a crime against humanity and a war crime.
  • ‘Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition’ as a war crime under Article 13(b) of the Statute.
  • Definition of ‘forced pregnancy’ as ‘the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law’ under Article 12 of the Statute.
  • Definition of ‘gender’ as ‘the two sexes, male and female, within the context of society’ under Article 12 of the Statute.


D. Witnesses and Victims

We note the Statute’s reference to witness and victim protection under Article 22 of the Statute, particularly the reference to the use of in camera proceedings. The atrocities that victims and their families have suffered and the important role of these trials for victims, their families, and witnesses make sensitive treatment at the Special Tribunal important.

Experience from the ICTR and ICTY strongly suggests that witnesses, both victim and non-victim, face serious security, psychological, and medical challenges related to their appearance in court. For example, numerous witnesses have refused to participate in the tribunals’ proceedings because of fears of reprisals against them or their families. Victims and witnesses of crimes of sexual violence require especially sensitive treatment due to the particular trauma and alienation that they may have suffered. To facilitate participation by witnesses, both victim and non-victim, at the Special Tribunal and to promote their psychological well being, we recommend that witnesses be provided with basic support and counseling services, and protective measures from the commencement of an investigation through trial, and where appropriate, post-trial.

Below we describe a number of specific provisions to protect the security and identity of witnesses, both victim and non-victim, and provide them with appropriate assistance. These recommendations are based on the statutes and rules of procedure and evidence of international and hybrid courts with jurisdiction over serious human rights crimes includingArticle 16 and Rules 34, 69, and 75 of the SCSL Statute and Rules of Procedure and Evidence, and Articles 43 and 68 and Rules 16-19 and 86-88 of the Rome Statute and ICC Rules of Procedure and Evidence.

We note that Article 22 of the Statute indicates that protections for witnesses and victims will be provided in the rules of procedure and evidence for the Special Tribunal. As the founding document for the Special Tribunal, we recommend that the Statute be amended to include greater discussion of such provisions. These provisions can then be elaborated in the rules of procedure and evidence.

We also recommend that Article 9 of the Statute be amended to provide for a Victims and Witnesses Unit to be established within the Administration Department of the Special Tribunal. This will help ensure that victim and witness protection is effectively coordinated, and comprehensively and efficiently provided. This will also help to ensure that victim and witness protection is independent from organs of the Special Tribunal where conflicts of interest could arise, such as in the Prosecutions Department.


1. The identity and security of witnesses and victims should be protected.

To ensure that the identity and security of witnesses and victims are protected, the following guarantees should be available and should be provided for as long as they are objectively necessary and do not conflict with the rights of an accused:

  • Secure transportation to and from proceedings;
  • Closed session proceedings;
  • Allowing victims and witnesses to testify through one-way closed circuit television, video link, or image- or voice-altering devices, particularly where the victim has suffered sexual violence or when the witness is a child;
  • Expunging names and identifying information from public records or documents provided to the media; and
  • Providing witnesses and victims with pseudonyms.

Any party to the case, including victim, witness, or judge, should be permitted to request the implementation of such measures to protect the identity, security, and privacy of victims and witnesses.


2. Witnesses and victims should be provided with appropriate counseling and support.

Access to counseling and other assistance, including medical assistance, physical and psychological rehabilitation, particularly in cases of rape, sexual assault, and crimes against children should be made available. Experts in trauma, including trauma related to sexual violence or crimes against children, should be utilized to ensure that such assistance is appropriate and adequate. Assistance to victims and witnesses in obtaining legal advice and organizing legal representation should also be made available.

Witness and victim protection should take age, gender, and the health of the victims and witnesses into consideration throughout the investigation and prosecution. It should also take into consideration the nature of the crime, particularly with regard to crimes of sexual violence and against children. Finally, victims and witnesses should be protected from harassing and intimidating forms of questioning.


E. Vetting and Security


1. Decisions to exclude Ba’ath Party members from the Special Tribunal should be made on a case-by-case basis.

Article 33 of the Statute requires that no personnel of the Special Tribunal ‘have been a member of the Ba’ath Party.’ We believe that the blanket exclusion of former members of the Ba’ath Party without any process will undermine the legitimacy and the credibility of the Special Tribunal. Accordingly, we recommend that the Statute be amended to provide for a procedure through which the candidacy of former Ba’ath Party members will be assessed on a case-by-case basis with regard to their past performance and seniority of their membership in the Ba’ath Party.


2. Security should be provided at the Special Tribunal and for its staff.

Security for trials involving such serious crimes as genocide, war crimes, and crimes against humanity is always crucial. Given increasing attacks against Iraqi civilians who are perceived to be associated with the Coalition Provisional Authority or the Iraqi Governing Council, security will be particularly important for trials for serious past crimes committed in Iraq.

Under Article 2 of the Statute, the seat of the Tribunal will be in Baghdad, ‘or, following a written proposal made by the President of the Tribunal, in any other Governorate in Iraq as determined by the Governing Council or the Successor Government.’ Locating the Special Tribunal in Baghdad would give victims and those in whose names the crimes were committed greater access to the trials. However, the location of the tribunal in Baghdad could make the Special Tribunal especially vulnerable to attacks by those who oppose its operations.

The current insecurity that prevails in Baghdad and other areas in Iraq raises the question of whether such trials can be held safely in Iraq in the near future. According to press reports, two prominent judges as well as two politicians connected with the occupation or the Governing Council were killed in early November. We recommend that a serious assessment should be made concerning security before commencing trials in Baghdad or other areas in Iraq.

We note that the Statute fails to provide for security at the Special Tribunal. Wherever the trials are held, adequate security should be provided for the facilities and to Special Tribunal staff. We recommend that the Statute be amended to provide or the rules of procedure and evidence should include that adequate security for facilities, Judges, Prosecutors, and other court personnel is made available.


Conclusion

We urge the Iraqi Governing Council to consider our recommendations and to amend the Statute accordingly. The issue of justice for gross violations of human rights and international humanitarian law is too important to risk that the legitimacy and credibility of the trials will be undermined by the perception that the Special Tribunal is not fair, impartial, independent, or effective. Similarly, inadequate security or protection of witnesses and victims, and staff of the tribunal or insufficient application of the most fully developed international law should not be permitted to compromise accountability for serious past crimes. Justice must be done and be perceived to be done, for the victims and their families, and for a future in Iraq based on respect for human rights and the rule of law.



1 Iraq ratified the ICCPR in 1971 and is bound by its provisions.