Trials for serious past crimes in Iraq are of great significance, for the victims of the crimes and for building a future Iraq based on the rule of law. Although the Coalition Provisional Authority is making efforts to enlist United Nations support for the recently established Iraqi Special Tribunal for Crimes Against Humanity, Human Rights Watch believes that the United Nations cannot be expected to lend its imprimatur and expertise to a tribunal that is fundamentally flawed.
We believe that trials for serious past crimes in Iraq are of great significance, for the victims of the crimes and for building a future Iraq based on the rule of law. We are also aware of efforts by the CPA to enlist U.N. support for the recently established Iraqi Special Tribunal for Crimes Against Humanity (Special Tribunal).
Human Rights Watch believes that the United Nations cannot be expected to lend its imprimatur and expertise to the Special Tribunal under current circumstances. The Special Tribunal is fundamentally flawed.
The statute of the Special Tribunal lacks key provisions to ensure trials are conducted in accordance with basic international human rights standards. Among other concerns:
· The Special Tribunal statute fails to ensure the tribunal's competency as required under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) by not requiring that judges and prosecutors have experience working on complex criminal cases or cases involving serious human rights crimes. Likewise, the statute prohibits the appointment of non-Iraqi prosecutors or investigative judges with relevant experience working on these types of cases.
· The Special Tribunal statute does not prohibit the death penalty. 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. Tribunals sanctioned by the United Nations do not permit application of the death penalty.
· The Special Tribunal statute does not ensure 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 Special Tribunal statute mandates that Iraqi criminal law and procedure will supply the principles of criminal law, individual criminal responsibility, and liability for punishment where not otherwise articulated within the statute. Iraqi law contains provisions that are contrary to international standards, for example by permitting coerced confessions and the exclusion of counsel during questioning under certain circumstances.
There are also important questions concerning the legitimacy under international law of establishing a domestic tribunal like this during an occupation. The CPA has failed to articulate any basis in international humanitarian law by which the tribunal could be established. Moreover, the drafting of the statute was highly secretive without any opportunity for broad consultation or public comment.
Human Rights Watch has previously called on the Iraqi Governing Council to work with the United Nations to establish a Group of Experts including Iraqi and international specialists. This mixed Group of Experts would suggest appropriate accountability mechanisms and facilitate collection and preservation of evidence in Iraq. We believe that a mixed Group of Experts would allow Iraqi jurists to leverage accumulated international experience in trying serious human rights crimes to ensure legitimate and credible trials for serious past crimes in Iraq. The late Sergio Vieira de Mello articulated his support for this approach in his remarks to the Security Council on July 22, 2003.
Unfortunately, the CPA and the Iraqi Governing Council chose a different course, but now seek the U.N.'s support without allowing a substantive role. It is not too late for the CPA and the Iraqi Governing Council to correct the recent course of action establishing the Iraqi Special Tribunal. We urge you to begin without delay a process to ensure legitimate and credible trials for serious past crimes by supporting the creation of a mixed Group of Experts to scrutinize and recommend essential changes to the present statute.
We hope you will give close consideration to this issue. We are also sending a copy of this letter under separate cover to the U.N. Secretary-General.
Sincerely,
Richard Dicker
Director
International Justice Program
Joe Stork
Acting Executive Director
Middle East & North Africa Division
