Background Briefing

<<previous  |  index  |  next>>

III. How the Supreme Iraqi Criminal Tribunal Will Work

The Statute of the Iraqi Special Tribunal (IST Statute) was promulgated as an Order of the CPA on December 10, 2003.7  In early August 2005, the IST Statute was revoked by Iraq’s Transitional National Assembly, and replaced by a statute establishing the SICT.8 The SICT Statute preserves most of the provisions of the IST Statute, but emphasizes greater use of Iraqi criminal procedure law. For reasons detailed below, Human Rights Watch is concerned that Iraqi criminal procedure law and the SICT’s new rules of evidence and procedure do not provide sufficient safeguards to ensure a fair trial.

The SICT has jurisdiction over Iraqis and non-Iraqis residing in Iraq accused of committing genocide, crimes against humanity and war crimes, between July 1968 and May 2003.9  The SICT Statute adopts the definitions of these crimes from the Rome Statute of the International Criminal Court.  However, the SICT Statute also includes crimes from a 1958 Iraqi law that are political offenses,10 and of a breadth and vagueness that makes them susceptible to politicized interpretation and application. For example, the Statute allows individuals to be charged with “the wastage of natural resources and the squandering of public assets,” and “the abuse of position and the pursuit of policies that may lead to the threat of war or the use of armed forces of Iraq against an Arab country.”  These offenses are not defined, either in the SICT Statute or in the 1958 Law from which they are drawn. 

Investigations and trials before the SICT are regulated primarily by the Iraqi Code of Criminal Procedure.11  The applicable Iraqi criminal procedure is based on the civil law system of criminal procedure as used in countries such as France in the 1950s.12 It concentrates powers of fact-finding and investigation in the hands of an investigative judge.  The investigative judge plays the role of an inquisitor whose objective is to ascertain the truth,13 and has broad powers to compel testimony, seek out experts and collect and preserve evidence.14  He or she must seek out both exculpatory and inculpatory evidence in order to assess whether there is sufficient evidence for trial. All evidence collected and testimony taken are recorded in a written dossier.  During the investigative phase, the accused and the accused’s lawyer have a limited right to be present while the investigative judge collects evidence and questions witnesses,15 and may only question a witness through the investigative judge and with the latter’s permission.16  The accused can submit comments on witnesses’ testimony, to be included in the dossier.17

If the case is referred to trial, everything contained in the dossier constitutes evidence, and the trial court is entitled to treat all witness testimony in the investigative dossier as having been given at trial.

The Rules of Procedure and Evidence provide that the SICT will establish a Defense Office, headed by a Principal Defender and supported by the Administration of the SICT, to ensure adequate facilities for counsel in the preparation of defense cases.18 (For problems with the implementation of this provision, see below.)

The trial chamber of the SICT consists of five judges.19 The conduct of the trial is controlled by the judges, who decide which witnesses shall be called and what questions are put to the witnesses and the defendant.  Lawyers for the prosecution and the defense may address questions to witnesses only through the judges.20 Proceedings at the trial stage can be expected generally to entail a review of the evidence contained in the dossier, followed by statements by the lawyers for the prosecution and defense.  Where the judges are satisfied of the guilt of the defendant, they will issue a verdict and sentence in a written opinion.  Convictions may be appealed to the Appeals Chamber of the SICT, which is constituted by nine appeals judges including the President of the Tribunal.21  A conviction and sentence may be reversed, revised, or set aside and the case sent back for re-trial.

The SICT applies the penalties that are available in Iraqi law.22  Where the defendant is convicted of a crime that would also amount to murder or rape under domestic Iraqi law, the penalties for those offenses will apply.23  The death penalty is widely prescribed under Iraqi law, including for the murder of more than one person.24 Consequently, most offenses over which the SICT has jurisdiction may incur the death penalty. 

The SICT Statute requires that the judges, prosecutors and staff of the SICT, and the principal defense lawyer for the accused, be Iraqi nationals.25  Non-Iraqi lawyers with experience in international criminal law may be appointed (at the discretion of the court’s president) as “advisors” to judges and prosecutors, in order to provide “assistance in the field of international law.”26  But the exact role of advisors, who they are accountable to and how they exercise an “assistance” function, are unspecified.  The original version of the IST Statute permitted the appointment of non-Iraqi judges with expertise in international criminal proceedings to the trial chamber.  The adopted version of the SICT Statute provides that non-Iraqi judges may be appointed only if a foreign state is a party to proceedings before the SICT.27  To date, no non-Iraqi judges have been appointed to any chamber of the SICT. Almost the only source of non-Iraqi advisors and assistance has thus far been the U.S. Embassy’s Regime Crimes Liaison Office (RCLO), established in March 2004 by the U.S. Department of Justice and funded by the U.S. Congress (see below).

The first trials before the SICT will concern the aftermath of an assassination attempt on Saddam Hussein in the town of al-Dujail in 1982.  It is alleged that reprisals for the assassination attempt led to the extrajudicial execution and “disappearance” of over 140 individuals by government security forces, and the widespread destruction of property.  Most of the victims were reportedly Shi‘a Muslims and were targeted because of their suspected allegiance to the Shi‘a Muslim political party al-Da‘wa al-Islamiyya.28  Among the defendants in the case are Saddam Hussein and several former senior government figures, including former Vice-President Taha Yassin Ramadan, ‘Awwad Hamad al-Bandar al-Sa‘dun (former president of the Revolutionary Court) and Barzan al-Tikriti (Saddam Hussein’s half-brother and former head of Iraqi Intelligence).  It is unclear with which crimes within the jurisdiction of the SICT the accused have been charged, as the indictments and particulars of the alleged offenses have not been made publicly available.

[7] Coalition Provisional Authority Order Number 48: Delegation of Authority Regarding an Iraqi Tribunal, CPA/ORD/9 Dec 2003/48 (2003) (IST Statute)

[8] At the time of writing, the legal status of the law passed by the Transitional National Assembly is uncertain.  Human Rights Watch has been informed that, on the first occasion the law was passed in August 2005, it was a nullity because of a failure to follow parliamentary procedure – namely, it had not been reviewed by the State Consultative Council (Majlis Shura al-Dawla). In September 2005, the Transitional National Assembly voted on further amendments to the law after the draft had been re-examined by the Shura Council, and adopted it.  At this writing, the law (Law 10 of 2005) had been ratified by the Presidency Council but was still awaiting publication in the Official Gazette to enable it to come into force.

[9] SICT Statute, Arts 1.2.

[10] SICT Statute, Art 16.  Two of the crimes listed in Article 16 appear to have their origins in the military tribunal that was constituted to try leaders of the monarchical government after the 1958 revolution led by ‘Abdel Karim Qassim.  This tribunal, known as the Mahdawi Court, conducted overtly political trials more concerned with discrediting the monarchy than with establishing the guilt or innocence of the accused.  It is troubling that these offenses have been included in the substantive jurisdiction of the SICT.

[11] SICT Statute, Art 19.  The principal law is the Code of Criminal Procedure, No. 23 of 1971.

[12] In 1993 and 2000, French criminal procedure law was amended in order to expand the rights of defendants, which were considered insufficiently protected under the earlier laws: Stewart Field and Andrew West, “Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the Pre-Trial Criminal Process,” Criminal Law Forum, Volume 14, Issue 3 (2004), pp. 261-316.

[13] Christoph Safferling, Towards an International Criminal Procedure (2001), p. 217.

[14] Iraqi Code of Criminal Procedure, paras 51-129.

[15] Iraqi Code of Criminal Procedure, para. 57.

[16] Iraqi Code of Criminal Procedure, para. 64.

[17] Iraqi Code of Criminal Procedure, para. 63.

[18] SICT Rules, Rule 30(3)(3).

[19] SICT Statute, Art 4.1.

[20] Code of Criminal Procedure, para. 168(B).  In June 2003, the CPA issued Memorandum 3, section 4 of which suspended the requirement in para. 168(B) that parties address questions to witnesses via the court.  This amendment does not, however, give parties a right to examine and cross-examine witnesses as it preserves the judge’s complete discretion to permit questioning.  It is also uncertain whether CPA Memorandum 3 will be applied by the SICT, as there is no explicit reference to CPA Memorandum 3 in the SICT Statute. Article 16 of the SICT Statute makes the Code of Criminal Procedure the governing procedure for the trials, supplemented by the Rules of Procedure and Evidence.

[21] SICT Statute, Art 4.2.

[22] SICT Statute, Art. 24.

[23] SICT Statute, Art. 24.4.

[24] Penal Code 1969, para. 406 (1).

[25] SICT Statute, Art 28 (judges, prosecutors and staff), Art 22.4(B) (principal defense lawyer). Non-Iraqi defense lawyers are permitted to assist the principal lawyer, but non-Iraqis cannot register as representing the accused unless they are first approved by the Ministry of Justice.

[26] SICT Statute, Arts 9.2, 10.9, 11.7.

[27] SICT Statute, Art 4.3.

[28] John Burns, “A Town That Bled Under Hussein Hails His Trial,” New York Times (New York), July 3, 2005; Paul Eedle and Lindsey Hilsum, “The Day They Tried to Kill Saddam … And 148 Paid for it with Their Lives,” The Observer, September 18, 2005.

<<previous  |  index  |  next>>October 2005