Background Briefing

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IV. The SICT and the Right to a Fair Trial

The first trial before the SICT will be commencing in a political context of considerable instability and uncertainty.  In such a context, it is essential that the trials be fair and be seen to be fair so that accusations that the trials amount to “victors’ justice” do not gain credence.  There is also evidence that victims of the former government demand a transparent, open legal process that publicly exposes the nature of human rights violations committed in Iraq.29  A trial that meets international human rights standards of fairness will also be more likely to ventilate and verify the historical facts at issue and contribute to the public recognition of the experiences of victims of different religious groups and ethnicities.

Essential Elements of a Fair Trial

The Republic of Iraq ratified the International Covenant on Civil and Political Rights (ICCPR) in 1971, and all successor governments remain bound by it.  Article 14 of the ICCPR provides that any person charged with a criminal offense is entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law.”30  A “fair trial” under the ICCPR means that a person being tried for a criminal offense must be guaranteed, at a minimum, the following rights:31

- To be informed of the charges against her/him in detail and promptly, in a language she/he understands;

- To have adequate time and facilities for the preparation of a defense and communication with counsel of her/his own choosing;

- To be tried without undue delay; to be tried in her/his own presence, and to defend her/himself in person or through legal counsel of her/his own choosing;

- To examine witnesses against her/him and be able to obtain the attendance and examination of witnesses on her/his behalf, under the same conditions as the prosecution;

- Not to be compelled to confess guilt or incriminate her/himself;

- To be able to appeal to a higher tribunal against conviction and sentence.32

These basic fair trial guarantees apply irrespective of whether the legal system of the country conforms to an adversarial model (such as in the United States or the United Kingdom) or an inquisitorial model (such as in Iraq).  They are the minimum requirements for a trial to be considered “fair” in international law.  The realization of fair trial standards is particularly challenging where persons are accused of crimes such as genocide, crimes against humanity and war crimes.  Trials for these kinds of crimes often carry high political stakes, and require large amounts of time and resources in order to adequately prosecute and defend. 

At the same time, these crimes achieved recognition as such principally through international law; the legitimacy of prosecuting them is inextricably linked to whether the prosecution meets international fair trial standards. Over the last fifteen years, since the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, a body of law and practice concerning trials for gross human rights violations has emerged, and some benchmarks for prosecution, adjudication, the rights of the accused and the protection of victims and witnesses, have been established.

The SICT Statute specifies rights for the accused to a much greater extent than pre-existing Iraqi criminal law. Article 22 of the SICT Statute enumerates rights for the accused that closely match the guarantees required by the ICCPR.  Human Rights Watch commends these provisions as necessary preconditions for fair trials before the SICT.  However, the rights provided for under Article 22 of the SICT Statute are not adequately protected by the Iraqi Code of Criminal Procedure – which is the principal procedure of the SICT33– or the SICT’s Rules of Evidence and Procedure (SICT Rules). The recognition of fair trial rights in the SICT Statute therefore by no means guarantees that the rights will be properly implemented or given effect in the practice and procedure of the SICT.


Human Rights Watch has several specific areas of concern which, if uncorrected, could undermine the fairness of trials before the SICT. These are as follows:.

A. Inappropriate Standard of Proof and Inadequate Protections against Self-incrimination

The right to a fair trial requires that the accused be found guilty only if the charge is proved beyond reasonable doubt.34  The reasonable doubt standard is applied by all international criminal tribunals trying crimes such as crimes against humanity, war crimes and genocide.35  Iraqi criminal law permits an accused to be convicted on the “satisfaction” of the judge.36  This standard of proof is insufficient to assure a fair trial, particularly given the large evidentiary base and the multi-faceted elements of the crime that must be proved in trials for genocide, war crimes and crimes against humanity.  A conviction must be based on a reasoned judgment that demonstrates the establishment of each of the elements of the crime beyond reasonable doubt.

International law protects a defendant’s right not to incriminate him- or herself, which includes a right to silence.  A defendant cannot be compelled to testify against him- or herself, and a refusal to answer questions cannot be used as evidence of guilt.37  The SICT Statute duly provides that an accused has a right to silence and cannot be compelled to testify, and that silence cannot be a consideration in the determination of guilt or innocence.38  However, the Iraqi Code of Criminal Procedure permits the judges to ask questions directly to a defendant, regardless of whether the defendant is willing to testify or has chosen to give an unsworn statement to the court. Where the defendant refuses to answer a question posed by the court, “it will be considered as evidence against the defendant.”39  In June 2003 the CPA issued a regulation (“Memorandum 3”) that suspended the requirement that a refusal to answer be considered as evidence against the defendant.40  It is uncertain whether the judges will consider themselves bound by CPA Memorandum 3, because it is not mentioned as part of the procedural law applied by the SICT.

Human Rights Watch urges the SICT, no later than the beginning of the trials, to declare that it will apply the standard of proof of beyond reasonable doubt, and that it will not count as evidence of guilt that a defendant does not give evidence or refuses to answer questions put to the him or her by the court.

B. Inadequate Procedural and Substantive Steps to Ensure Adequate Defense

A trial that is fair and is seen to be fair requires a vigorous and competent defense.  International human rights law protects a defendant’s right to an effective defense in respect of the charges brought against that person, by guaranteeing the accused: unrestricted and regular access to legal counsel of his or her own choice at all stages of criminal proceedings,41 or to counsel appointed by the court in any case where the interests of justice so require, and without payment if the accused does not have sufficient means to pay for it42; adequate time and facilities to prepare a case in response to the particular charges against the defendant, including facilities to ensure the confidentiality of lawyer-client communications and the ability of the defendant to properly instruct his or her lawyer43; and the right to confront and examine witnesses against the defendant, and call witnesses on behalf of the defense under conditions equal to those of the prosecution.44

a. Access to defense counsel during the investigative phase

Human Rights Watch is concerned that current arrangements by the SICT have not sufficiently safeguarded defendants’ right of access to counsel, or to adequate time and facilities to prepare a defense. 

The U.S. military holds in custody on behalf of the SICT more than 90 so-called “High Value Detainees”, comprising most of the senior leadership of the former government.    The SICT, although established by law in December 2003 (as the IST, see above), did not become functional until December 2004, and consequently the detainees did not have access to counsel until that time. Yet in July 2004, twelve of the detainees were brought before a judge of the Central Criminal Court of Iraq and notified of possible charges punishable under the Penal Code.45  Reports submitted to the U.S. Congress by the U.S. Department of State record that, between June and December 2004, U.S. investigators from the RCLO reviewed seized government documents held in Qatar in order to question detainees, and questioned thirty of the detainees.46  Prima facie, it would appear that this questioning occurred before any of these detainees had access to legal counsel, and it is impossible to determine whether they were properly informed of their right to counsel and freely waived that right.  

The SICT has stated to Human Rights Watch that the court will not use as evidence against the detainees statements that were given by detainees without defense counsel present, but may use the statements as a basis for further investigation.  Human Rights Watch urges the SICT to ensure that evidence obtained before detainees could effectively and freely exercise their right to be represented by counsel is not admitted against them.


Iraqi lawyers acting for several of the accused alleged that they faced difficulties in gaining regular access to their clients, and other obstacles. Among their allegations are that:

  • The SICT has delayed or failed to accept their applications to register as counsel for defendants, and therefore the lawyers could not gain access to the accused.  Some defense lawyers have claimed that families of the accused granted them power of attorney, but that this power of attorney was not certified by the SICT.  Without certification, the defense lawyers could not request access to the accused and therefore were unable to defend them.

  • Foreign lawyers’ registration as defense counsel was not facilitated in practice. Several foreign lawyers submitted documentation to register as counsel for the defendants through the Iraqi Bar Association.  These were subsequently not approved.

  • Requests for appointments to meet with defendants were not responded to promptly, or when access was given, it was given with little or no prior warning, or only when their client was due to be questioned by an investigative judge.

  • A U.S. official with knowledge of Arabic was present in the room when one of the lawyers conferred with his client.

  • It was a matter of general complaint that when a defendant was questioned by an investigative judge, his lawyer was not given advance notice about the hearing or its subject matter. In some cases, counsel requested and were granted permission to visit their clients, but upon arrival counsel found that a questioning session by the investigative judge had been scheduled without their knowledge.  As a result, the lawyers claimed that they felt unprepared to adequately advise their clients during questioning.  The visits with the clients themselves were delayed until after the questioning by the investigative judge. A defense counsel claimed that on one occasion the questioning by the judge lasted five hours, leaving only thirty minutes for counsel to meet with the defendant afterwards.

  • No access to documents or evidence was given during the course of investigations.

  • Transcripts of judicial questioning were not made available during the course of the investigation, despite repeated requests from defense counsel.  In some cases, defense counsel were advised by the court that transcripts would be made available at a later date, but were not.  In another case, a defense counsel was told by the court that the transcripts would be included in the dossier, but they were not. 

  • When the dossier was transferred to the trial court, defense counsel were not provided with adequate facilities at the court to review the dossier.  Defense counsel claimed that they had no option but to sit in the public reception area of the court building while reviewing the dossier, and the amount of time granted to view the dossier during these visits was limited.

    Human Rights Watch raised some of these allegations with the SICT.  The SICT rejected claims that it had not adequately facilitated accused persons’ right to meet with and instruct counsel.  The SICT attributed defense counsels’ claims of difficulties in meeting with or representing the accused to a lack of due diligence on the part of defense counsel.  The SICT offered to make available to Human Rights Watch documents that would verify the SICT’s contention that it had not impeded the defense counsels’ ability to meet with or represent the accused, an offer the organization accepted.  At the time of writing, however, the SICT had yet to make this documentation available.

    The allegations made by defense counsel are sufficiently serious to warrant investigation as possible violations of basic fair trial guarantees.  Human Rights Watch urges the SICT to conduct a credible and impartial assessment of these claims, if they are raised by defendants at trial.  If any of the allegations are found to be warranted, the SICT should take such measures as may be necessary to remedy any unfairness or prejudice accruing to the defendant. 

    Apart from being present during the questioning of their client by an investigative judge, defense lawyers appear not to have been present during the taking of other witness statements or the collection of evidence by the investigative judge.  As noted above, in Iraqi criminal procedure (as in other civil law jurisdictions) the dossier compiled by the investigative judge may be treated as evidence by the trial court.47  The opportunity to cast doubt on the credibility of witnesses, submit comments on evidence and request further investigations on behalf of the accused, is generally exercised at the investigative phase in civil law systems.48  The lack of defense counsel participation at the investigative phase of SICT proceedings heightens the need for trial judges to give defendants’ counsel adequate opportunity to prepare their cases, cross-examine witnesses against the defendants and call witnesses for the defense.

    b. Equality of arms and adequate time and facilities for the preparation of a defense

    “Equality of arms” refers to the principle that every party to a case must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent.49  This includes not only equality in presenting arguments, but also equality in being able to present evidence.  Human Rights Watch is concerned that the degree of inequality of arms in the cases before the SICT court between the prosecution and the defense – in terms of institutional support, expertise and training, and infrastructure – may be so great as to diminish the fairness of the trials.

    Trying an individual for crimes such as genocide, crimes against humanity and war crimes presents a special challenge to equality of arms.  The resources required to investigate and prosecute these crimes are very substantial, and often require the cooperation and assistance of foreign governments and intergovernmental organizations.  The prosecution of such cases – particularly command responsibility cases – may involve hundreds of witnesses and  thousands of exhibits for the prosecution,50 as well as expert evidence in forensics, history, and military affairs.  Because of this, the international criminal tribunals have recognized that “equality of arms” in the trial of an international crime implies not only procedural equality but also a measure of substantive equality in which the court may need to actively facilitate the defense’s efforts to present witnesses and obtain evidence:

    Under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and Defense must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and the Statute when faced with a request by a party for assistance in presenting its case.51

    Under the SICT Statute, lead defense counsel must be Iraqi and the language of the SICT is Arabic.  Non-Arabic speaking, non-Iraqi lawyers with direct experience in defending international criminal cases are effectively precluded from directly representing the accused in court. Iraqi defense lawyers, who have been isolated from developments in international criminal law and practice for three decades, have not been provided with training in international criminal law and procedure or forensic analysis. Meanwhile, the prosecution and the investigative judges have had the benefit of extensive support and assistance from the RCLO, including training (see below). 

    At the time of writing, a Principal Defender had been appointed but the Defense Office (see above) was not fully functional and provided very limited support.  Defense lawyers working on behalf of the accused claim to have had no contact with, or knowledge of, the SICT’s Defense Office. Further, the independence of the position of Principal Defender is not sufficiently protected, as the SICT’s Rules allow this person to be dismissed by the director of administration “with good cause”; the meaning of good cause is not specified and no review is provided for.

    Some defendants may have access to substantial financial resources, but this will not be the case for all and should not be presumed by the court. Moreover, in a very unstable and insecure environment such as Iraq, financial resources will not resolve serious obstacles that the defense may encounter in locating and protecting witnesses on behalf of defendants, obtaining access to documents and securing the attendance of international experts it may wish to call in support.  Of particular concern is the deletion from the most recent version of the SICT Rules of Procedure of any requirement to consult the Defense Office concerning protection measures for defense witnesses.52  The SICT Statute as adopted has also deleted the requirement that the defense be able to obtain the attendance of witnesses on its behalf “under the same conditions as witnesses against him.”53

    Human Rights Watch urges the SICT to take positive steps to ensure equality of arms between prosecution and defense through the creation of an independent and adequately resourced Defense Office, and by taking the steps reasonably necessary to facilitate the proper presentation of a defense case on conditions equivalent to the prosecution.  In particular, the court should be open to reasonable requests for the extension of time for preparation of a defense.  The SICT Rules require the prosecution to disclose all evidence against the defendant forty-five days before trial.54  A period of forty-five days is likely to be insufficient for the preparation of a defense to charges of crimes against humanity or genocide, where a case is likely to involve dozens of witnesses and hundreds or thousands of exhibits and much expert evidence.  A defendant has a right to adequate time to prepare his or her case,55 and the meaning of “adequate” will depend on the size and complexity of the case against the defendant.56  By way of example, when the prosecutor sought to introduce fourteen new charges of complicity in genocide against a defendant at the ICTY, the Appeals Chamber held that the defense’s request for seven additional months to prepare its case was “not unreasonable.”57

    At the time of writing this briefing, the Statute and the Rules of the SICT had not been published in the Official Gazette, and so defense counsel had no access to an official text of the Statute and Rules only days before the first trial was due to begin.

    c. Inadequate protection of the right to confront and examine witnesses

    The defendant’s right to confront and examine witnesses against him or her is a fundamental fair trial guarantee applicable to both common law and civil law systems.  It is essential to test the credibility of witnesses and their evidence.  The right requires that an accused should be given “adequate and proper opportunity to challenge and question a witness against him, either at the time the witness makes his statement or at some later stage in the proceedings.”58  This does not mean that every witness must be heard and cross-examined, but a conviction cannot be based substantially on the statements of witnesses whom the defense is unable to cross-examine.59

    The SICT Statute is confused – and confusing – as to whether defendants can confront and cross-examine witnesses against them.  On the one hand, Article 22(4)(e) of the SICT Statute states that the accused has the right to examine witnesses against them.  On the other hand, the Code of Criminal Procedure does not confer a right on the defendant to cross-examine a witness at trial.60  Paragraph 168 of the Iraqi Code of Criminal Procedure gives judges discretion to permit parties to question a witness, via the court.61  Rule 57 of the Rules of Procedure and Evidence states that examination, cross-examination and re-examination “must be granted”, but also states that the court must “take into account the provisions of Article 168 of the Iraqi Criminal Proceeding Law.”  The result is ambiguity about the right to confront witnesses.

    Human Rights Watch urges the SICT to clarify its rules to provide defendants with an unambiguous right to question witnesses against them, and to ensure that defendants have a genuine opportunity to exercise these rights at trial. 

    C. Concerns that the SICT May Not Appear to be Impartial and Independent

    The independence of a tribunal is essential to a fair trial.  Decision-makers must be free to decide cases before them impartially, on the basis of the facts and in accordance with the law, without interference or pressure from any branch of government or other actors.  The appearance of impartiality is as important as actual impartiality where a trial concerns highly politicized issues.  Human Rights Watch is concerned that the SICT’s perceived and actual independence are not adequately safeguarded.

    a. Prejudicial comments by senior public officials and political figures

    State officials and political figures must not prejudice the accused’s fair trial rights by encouraging the public to believe that the accused is guilty, or undermine the perceived impartiality of the tribunal by prejudging the assessment of the facts by the competent judicial authority.62 

    In an interview with Iraq’s state-funded broadcaster Al-Iraqiya on September 6, 2005, Iraqi President Jalal Talabani stated “I received the investigating magistrate who is in charge of questioning Saddam [Hussein]. I encouraged him to continue his interrogation. He told me good news, saying that he was able to extract important confessions from Saddam Hussein.”63 President Talabani added that “Saddam signed these confessions,” and that “Saddam Hussein is a war criminal and he deserves to be executed 20 times a day for his crimes against humanity.”64  On June 24, 2005 Abdul Aziz Hakim, head of the Shi’a Muslim political party the Supreme Council of the Islamic Revolution in Iraq (SCIRI), stated in an interview with Reuters that “there is no doubt that Saddam deserves more than just execution ... I am among those who are going to file a complaint for killing 64 members of my family.  For these crimes alone he deserves 64 executions.”65

    Human Rights Watch urges Iraqi officials to refrain from comments such as these, which may undermine the fairness of the trials, and to instead encourage a climate of respect for the fair trials rights of the accused.

    b. Politicization of control of the SICT and susceptibility of judges to dismissal

    The SICT has not been adequately protected from political struggles over its control, undermining its perceived independence from political groups that form part of the current government of Iraq.  Since the formation of the Interim Governing Council, control over the SICT has been the subject of political disputation and interference by Iraqi political factions.  Interference has taken the form of attempts by Iraqi political leaders to dismiss or appoint SICT officials and judges thought to be loyal to one faction or another.  The SICT’s first administrative director, Salem Chalabi, was dismissed in September 2004,66 and there were reportedly attempts to have “Chalabi loyalists” removed from the SICT and replaced by personnel selected by officials in the government headed by interim Prime Minister Ayad Allawi.  Subsequently, under the government of Prime Minister Ibrahim Ja’fari, further attempts were made to effect widespread dismissals within the personnel of the SICT through the “de-Ba’thification” process, which was led by Deputy Prime Minister Ahmad Chalabi.  This process resulted in the dismissal of nine administrative staff, including the then Administrative Director ‘Ammar al-Bakri (an Allawi appointee), but stopped short of dismissal of judicial personnel after intervention by both President Talabani and Prime Minister Ja’fari. 67  These developments seriously damage the SICT’s appearance of independence and impartiality.

    Article 36 of the SICT Statute makes any person who was a member of the Ba’th Party ineligible to hold a position with the SICT. However, a de facto “pause” in the applicability of Article 36 means that former Ba’th members have in fact been appointed to the SICT, although they remain vulnerable to dismissal should the article be enforced.68 The susceptibility of judicial personnel to dismissal at any time is a threat to the independence of the SICT.  It creates the possibility that judges who belonged to the Ba’th Party may be selectively dismissed or threatened with dismissal as a means of influencing their judgments. Any procedure for the dismissal of judges must preserve the independence of judicial personnel, for example by considering their performance on an individual basis, and with avenues for review against a dismissal decision.

    Article 36 is at variance with the general rules for de-Ba’thification applied by the National De-Ba’thification Commission, which render persons holding any of the top four levels of Party membership potentially ineligible for government employment.69  Membership of the Ba’th Party was a prerequisite for admission to judicial training under the former government, and does not necessarily imply that the member was a supporter of the Ba’th Party or the government of Saddam Hussein, so former membership of the Ba’th Party, without regard to rank or extent of participation, is unlikely of itself to be sufficient to render a person unfit for office with the SICT. The eligibility of former Ba’th Party members for appointment with the SICT should be assessed on a case-by-case basis with regard to past performance and seniority of membership in the Ba'th Party. 

    c. The Role of U.S. Advisors

    The CPA’s judicial sector assessment undertaken in June 2003,70 and a later UN assessment mission,71 both concluded that the forensic capacity for large-scale criminal investigations was non-existent, knowledge of international legal developments outside Iraq very limited, and that judges and lawyers had no experience with investigating and trying crimes on the scale of crimes against humanity and genocide.  In the absence of these technical capacities, and a source of funding, any Iraqi-led tribunal was likely to be heavily dependent on foreign assistance.72 

    The U.S. Congress appropriated U.S.$75 million in 2003 to pay for investigations and prosecutions of former government officials in Iraq.73 This has been expanded to U.S.$128 million.74  The appropriation funds the RCLO, which comes under the authority of the U.S. Ambassador to Iraq. Although claimed to play only a “support role” under the SICT Statute,75 Quarterly Reports to Congress make clear that the RCLO’s staff of over fifty have played the lead role in many aspects of the operations of the SICT, including: the building of the courtroom,76 the conduct of exhumations,77 interviews with “High Value Detainees”,78 review of seized documents and preparation of an evidence database,79 and training of SICT staff. Over the last twelve months, the U.S. has actively sought out assistance for the SICT from other states and the U.N., in order to bolster the legitimacy of the SICT and ward off claims that the court is U.S. dominated.  The UK Foreign and Commonwealth Office has provided ₤1.3 million in capacity building and training assistance to the SICT,80 but the SICT has faced considerable difficulty in obtaining international assistance from other sources.  This difficulty can be attributed in part to the SICT’s application of the death penalty (all European donor countries are abolitionist), in part to the poor security situation in Iraq, and in part to donor government concerns about working within a U.S.-dominated process.

    The appearance that the SICT is heavily dependent on the assistance and financial support of the U.S. undermines its perceived impartiality.  It may also make it easier for those who deny the extent of human rights violations under the former regime to dismiss the SICT as an exercise of “victors’ justice.”


    [29] See International Center for Transitional Justice and Human Rights Center, University of California, Berkeley, Iraqi Voices: Iraqi Attitudes Towards Transitional Justice and Social Reconstruction (May 2004).

    [30] Art. 14(1).

    [31] Art. 14(3)(a)-(g).

    [32] ICCPR, Art 14(5).

    [33] Article 19 of the SICT states that: “The provisions of the Criminal Procedure Law 23 of 1971 and the Rules of Procedures and Evidence appended to this Statute, of which it shall be considered an integral part, shall apply to the procedures followed by the court.” Unlike Article 20, this Article is not prefaced as “Subject to the Statute and the Rules...” This suggests that the Code of Criminal Procedure will have priority over the Rules.

    [34] Human Rights Committee, General Comment 13, Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Article 14), 13 April 1984, para.7; Flick, Vol. 6, Nuremberg Military Trials, 1189.  The words “beyond reasonable doubt” are associated with the common law system, while in civil law systems such as France, a finding of guilt requires the “intime conviction du juge” (the innermost conviction).  The European Court of Human Rights has held that the two expressions have the same basic substance: that doubts should benefit the accused and the evidence against should be sufficient that all reasonable doubts about her or his guilt are silenced.  See Barberá, Messegué and Jabardo v Spain, European Court of Human Rights, Judgment of 6 December 1988, para.77; Safferling, Towards an International Criminal Procedure, p. 259.

    [35] Rome Statute of the International Criminal Court, Art.66(3); Rule of Procedure and Evidence, International Criminal Tribunal for the former Yugoslavia, Rule 87(A); Rules of Procedure and Evidence, International Criminal Tribunal for Rwanda, Rule 87(A).

    [36] Code of Criminal Procedure, para. 213(A).

    [37] John Murray v. United Kingdom, European Court of Human Rights, Judgment of 8 February 1996, para. 45.  The European Court of Human Rights recognizes that under very limited circumstances, the failure of a defendant to answer a question under interrogation could be “taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.” (para. 47, emphasis added).  In other words, a defendant’s silence cannot be treated as direct evidence of guilt and a conviction cannot be solely or mainly based on the defendant’s silence.

    [38] SICT Statute, Art. 22(4)(f).

    [39]Code of Criminal Procedure, para. 179, emphasis added.

    [40] CPA Memorandum 3, s. 4(g), CPA/MEM/27 June 1994/03.

    [41] Human Rights Committee, Concluding Observations on Georgia, CCPR/C/79/Add.74, 9 April 1997 para. 28; Murray v United Kingdom, para 62;   UN Basic Principles on the Role of Lawyers, Principle 1.

    [42] ICCPR, Art. 14(3)(d); Human Rights Committee, Henry and Douglas v Jamaica, 26 July 1996, CCPR/C/57/D/571/1994 para. 9.2.

    [43] ICCPR, Art. 14(3)(b); Human Rights Committee, General Comment 13, para.9; Human Rights Committee, D. Wolf v Panama, 26 March 1992, A/47/40 para. 6.6.Basic Principles on the Role of Lawyers, Principle 22.

    [44] ICCPR, Art. 14(e).

    [45] Robert Worth, “Saddam Hussein Sees Lawyer for First Time Since Capture,” New York Times, December 17, 2004.

    [46] Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (October 2004), I-28; Department of State,  Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (December 2004),  I-41.

    [47] The International Criminal Tribunal for the former Yugoslavia has rejected the use of a civil law “dossier” approach as inadequate for the protection of the accused’s fair trial rights.  It held in Kordic and Cerkez that the admission into evidence of material in a dossier must be considered on a category by category basis, and subject to objections as to authenticity and cross-examination: Kordic and Cerkez, Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, July 29, 1999.

    [48] Caroline Buisman, Ben Gumpert and Martine Hallers, “Trial and Error – How Effective is Legal Representation in International Criminal Proceedings?” International Criminal Law Review, Volume 5, Number 1 (2005), pp. 1-82. In 2000, French criminal procedure was amended to strengthen the right of defense counsel to request the investigative judge to interview or re-interview certain witnesses and seek other evidence.  If the investigative judge refuses without good reasons, the defendant may appeal and have certain investigative acts declared “null”: Field and West, above.

    [49] Kaufman v Belgium (1986) 50 DR 98, 115; Foucher v France (1998) 25 EHRR 234 at [34].

    [50] For example, in the Krstic Case before the ICTY (alleging command responsibility for genocide), 128 witnesses were heard and 1098 Exhibits were entered.  In the Kupreskic case, involving 6 co-accused, 157 witnesses were heard and 700 Exhibits were entered: Richard May and Marieke Wierda, International Criminal Evidence (2002), p.143.

    [51] Tadic, Appeals Chamber Judgment, July 15, 1999 at para.52 (emphasis added).

    [52] Ibid, Rule 16(1).

    [53] SICT Statute, Art. 22(4)(e).

    [54] SICT Rules of Procedure and Evidence, Rule 40.

    [55] ICCPR, Art. 14(3)(b).

    [56] Human Rights Committee, General Comment 13, para. 9.

    [57] Kovacevic, Appeal Chamber Decision Stating Reasons for Appeal Chamber’s Order of May 29, 1998, July 2, 1998 at paras. 28-31.

    [58] Delta v France, (1990) 16 EHRR 574 at para. 36.

    [59] Kosotovski v. Netherlands (1990) 12 EHRR 434; D.J. Harris, M. O. Boyle and C.Warbrick, Law of the European Convention on Human Rights (1995) 212.  The fair trial rights provided for in Article 6 of the European Convention on Human Rights are essentially identical to those found in the ICCPR.  The interpretations of these rights by the European Court of Human Rights are therefore applicable.

    [60] Code of Criminal Procedure para. 168(B).

    [61] As noted above, CPA Memorandum 3 section 4 abridged the requirement to direct questions via the court but did not create a right of cross examination.  CPA Memorandum 3 is nowhere mentioned in the Statute or Rules of the SICT.

    [62] Human Rights Committee, General Comment 13, para. 7; Gridin v. Russian Federation, 20 July 2000, A/55/40, para. 8.3; Allenet de Ribemont v. France, European Court of Human Rights, Judgment of 10 February 1995, para.35; ACHPR, International Pen and Others (on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organizations) v. Nigeria, Communication Nos. 137/94, 139/94, 154/96, and 161/97, decision adopted on 31 October 1998, paras. 94-6.

    [63] BBC Worldwide Monitoring, “Iraq's Talabani says Saddam ‘confessed’ and deserves to die,” Al-Iraqiyah TV, Baghdad, in Arabic 17:35 GMT, September 6, 2005.

    [64] Ibid.

    [65] Reuters, “Iraqi Shiite Leader Wants Insurgents Wiped Out,” June 24, 2005.

    [66] Nancy Youssef, “Salem Chalabi Reportedly Removed from Post Overseeing Saddam Trial”, Knight Ridder New Service, September 7, 2004.

    [67]John Burns, “Hussein Tribunal Shaken by Chalabi’s Bid to Replace Staff,” New York Times, July 20, 2005, A9; John Burns, “Ignoring U.S., Chalabi Pursues Attempt to Fire Hussein Judge,” New York Times, July 27, 2005, A12; Edward Wong, “Iraqi Leader Vows to Block Purges on Hussein Tribunal,” New York Times, July 29, 2005; Kathleen Ridolfo, “Iraq: Debaathification Commission Backs Away from Tribunal Purge,” AFP, July 29,2005

    [68] Article 5(3)(b) of the SICT Statute provides that all appointments of judicial and other personnel to the SICT prior to its coming into forces shall remain binding, albeit “taking into consideration the provisions of Article 36”.

    [69] Coalition Provisional Authority, Order Number 1, De-Ba`thification of Iraqi Society, CPA/ORD/16 May 2003/01, paras.2-3

    [70] Report of the Iraq Judicial Assessment Team, June 2003.

    [71] World Bank – UNDG Legal Needs Assessment Mission to Iraq, August 2003.

    [72] This reality was also acknowledged in an update to Congress which declared that “Currently, Iraq lacks the professional and technical investigative and judicial expertise to [prosecute crimes against humanity and war crimes] on its own, and therefore needs Coalition assistance”: Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (January 2004), p. 43.

    [73] Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (January 2004), p. 43.

    [74] Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (April 2005), p. 30.

    [75] See comments of then-RCLO head Greg Kehoe, in Vanessa Blum, “A Slow Search for Justice in Iraq,” Legal Times, January 24, 2005.

    [76] Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (October 2004), I-28.

    [77] Ibid; Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (January 2005), I-41.

    [78] Department of State,  Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (July 2004),  I-24; Department of State,  Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (October 2004), I-28: “The RCLO has continued investigations of high value detainees (HVDs) ... IST investigators have been involved in the investigative process” (emphasis added).

    [79] Department of State, Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (October 2004), I-28; Department of State,  Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction (January 2005),  I-41.

    [80] UK FCO, Frequently Asked Questions on Iraq, available at:

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