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Ensuring Justice for Iraq: Evidence Preservation and Fair Trials
September 2003

For years, Human Rights Watch has advocated accountability for the past crimes of the Iraqi leadership. During Ba'ath Party rule, that leadership perpetrated crimes including genocide, crimes against humanity, war crimes, torture, "disappearances," and summary and arbitrary executions. In the genocidal 1988 "Anfal" campaign, we estimate more than 100,000 Kurds, mostly men and boys, were trucked to remote sites and executed. In the 1980s, the Iraqi government forcefully expelled over half a million Shi'a to Iran after separating out and imprisoning an estimated 50,000 to 70,000 Shi'a men and boys, most of whom remain unaccounted for. Since the late 1970s, at least 290,000 people were "disappeared" in Iraq.

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To date, the United States and its coalition partners have failed to take concrete steps to ensure that those responsible for serious past crimes are brought to justice in fair trials before impartial and independent courts.

After taking control of Iraq, coalition forces failed to secure mass gravesites and substantial evidence was destroyed. In the widespread looting that occurred following the fall of Baghdad and other cities, numerous documents were pilfered or ruined. Efforts are now being made to protect some gravesites, but much damage has already been done.

The Coalition Provisional Authority, the civilian body governing Iraq, has not indicated what it intends to do with senior former Iraqi officials currently in custody. As of August 22, 2003, thirty-seven of the U.S. government's list of fifty-five most wanted were in custody.

The U.S. administration has said that it wants to support an "Iraqi-led process" to bring justice for serious past crimes in Iraq. However, such a process likely will lack the capacity to adjudicate these cases effectively. As trials in Iraq traditionally have lasted only a few days, it is unlikely that any judges, prosecutors, or investigators in Iraq have participated in trials as complex as those involving genocide, war crimes and crimes against humanity charges.

There now exists considerable international experience and understanding of the various options for prosecuting genocide, crimes against humanity, and war crimes in accordance with international legal standards-particularly expertise gained through efforts to bring those most responsible for serious past crimes to justice, such as in the former Yugoslavia, Rwanda, and Sierra Leone. Human Rights Watch believes that a mixed Iraqi and international Group of Experts should be created to coordinate the collection and preservation of evidence and to recommend the most appropriate justice mechanisms for serious past crimes. Human Rights Watch believes that either a mixed Iraqi-international tribunal or an international tribunal should be established to bring accountability for those most responsible for genocide, war crimes, and crimes against humanity.

Evidence Collection and Preservation
There is an urgent need to collect and safeguard evidence that will be vital to the conduct of future trials. Further destruction or mishandling of this evidence will undercut the possibility of bringing to justice those responsible for the worst crimes. In addition, loss of evidence could prevent-beyond the needs of criminal trials-the comprehensive documentation of the crimes committed against the Iraqi people.

Intergovernmental agencies, nongovernmental organizations, and individuals have expressed reluctance to handing over evidence without neutral, technical expertise to centralize its collection and preservation. Similarly, some nongovernmental organizations have signaled hesitation to conduct forensic exhumations unless there is a neutral entity to which they can present their findings.

Based on experience from other post-conflict regions, as well as its research in Iraq, Human Rights Watch believes that a Group of Experts comprised of Iraqis and internationals should fulfill key components of evidence preservation and collection, in particular designing the necessary systems and means. These include:

  • Designing a protocol for a central repository to receive and record documents and other forms of evidence;

  • Supplementing any existing protocols for deploying teams of forensic experts to assist in mass grave exhumations and training for Iraqi personnel to conduct exhumations; and

  • Developing minimum standards for gathering and preserving documentary, testimonial, and forensic evidence.

A Group of Experts facilitating the collection and preservation of evidence will have legitimacy, credibility, and experience and will enable Iraqis to fully benefit from the expertise of the international community. The international experts would complement Iraqi expertise to document the nature, scope and identity of crimes committed by the previous government.

Fair Trials
Bringing justice for serious past crimes including genocide, war crimes, and crimes against humanity committed in Iraq will be a highly complex and politically charged process.

Trying these crimes will require a vast and sophisticated investigative process. Evidence must be marshaled to serve focused prosecutions. Evidence of crimes will need to be analyzed and then classified according to the crime scenes and the type of crime.

The actual process of investigation and trial of the former Iraqi leadership must be characterized by independence, impartiality and fairness so that justice is done and perceived to be done. The court or courts conducting the trials must be independent from political influence, and free of bias and partiality. The law must be applied equally to all accused without prejudice. The trial must give all accused the benefit of every protection under international law so that the trials are fair. Defendants must be regarded as innocent until proven guilty, and they must be available to conduct a vigorous defense that includes the right to legal counsel at an early stage. Human Rights Watch believes that these characteristics are prerequisites to properly honoring the Iraqi victims and laying the deepest foundation for respecting the rule of law in the new Iraq.

In order to convey the full extent of the crimes committed against the Iraqi people, the responsible leaders should be charged with the most serious crimes under international law: genocide, crimes against humanity, and war crimes. Because such crimes are not adequately codified in Iraqi criminal law, courts should apply international criminal law standards.

Human Rights Watch believes these objectives would be best accomplished by the creation of a mixed Iraqi-international or international tribunal where international experts and norms would complement and assist Iraqi experience. Incorporating this technical assistance would ensure a legal process that is maximally effective in documenting the crimes that have taken place in legal proceedings respected worldwide while bringing those most responsible to justice. Iraqis could take advantage of international expertise to develop a model that is best suited to the particular conditions in Iraq.

International participation in the accountability process would not undermine Iraqi participation. Courts for these trials could be located in Iraq, use Arabic and Kurdish as their official languages, be presided over by Iraqi and international judges, and apply the relevant provisions of Iraqi and international law. Above all, the involvement of international expertise will complement and strengthen Iraqi expertise, experience and knowledge in precisely the areas where Iraqis themselves have identified the need for such assistance.

Determining the appropriate justice mechanisms for serious past crimes is an issue that requires careful analysis. The proposed Group of Experts should also be tasked with:

  • Recommending the types of accountability mechanisms for those who bear the greatest and those who bear lesser responsibility for serious past crimes; and

  • Identifying objective criteria for the selection of investigative and trial judges who will participate in the accountability mechanisms for serious past crimes.

Creating a Group of Experts
Human Rights Watch has called on the Iraqi Governing Council to work together with the United Nations to create a mixed Iraqi-international Group of Experts. A mandate to establish a Group of Experts from the Security Council would be helpful as it would give the imprimatur of the Council. Absent a Security Council resolution, there are other routes by which the U.N. might create a Group of Experts. For example, the Secretary-General could appoint a Group of Experts as he did for the Democratic Republic of Congo and East Timor. Alternatively, a newly appointed special representative to the Secretary-General for Iraq could establish a Group of Experts pursuant to his authority under Security Council Resolution 1483(8)(i) to coordinate activities including "encouraging efforts to promote legal and judicial reform."