II. Background17

Between December 2003 and October 2005 the Iraqi High Tribunal was known as the Iraqi Special Tribunal (IST). The IST Statute was promulgated as an Order of the CPA on December 10, 2003.18 In early August 2005 the IST Statute was revoked by Iraq’s Transitional National Assembly, and replaced by an amended statute that renamed the Special Tribunal as the High Tribunal. The August enactment proved legally defective due to a failure to follow the proper legislative process,19 and was therefore re-debated and re-enacted in September 2005. The new law, Law No. 10 of 2005,20 was promulgated in the Official Gazette on October 18, only one day before the commencement of the Dujail trial.21

The IHT 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 2003.22 The IHT Statute adopts the definitions of these crimes from the Rome Statute of the International Criminal Court. However, the IHT Statute also includes crimes from a 1958 Iraqi law that are of a breadth and vagueness that makes them susceptible to politicized interpretation and application, and therefore could be regarded as political offenses.23 For example, the IHT 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 the armed forces of Iraq against an Arab country.” These offenses are not defined, either in the IHT Statute or in the 1958 Law from which they are drawn.

Investigations and trials before the IHT are regulated primarily by the Iraqi Code of Criminal Procedure.24 This is based on the civil law system of criminal procedure as used in countries such as France in the 1950s.25 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,26 and has broad powers to compel testimony, seek out experts, and collect and preserve evidence.27 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 compiled in a written dossier. During the investigative phase, the accused and the accused’s lawyer can seek to be present while the investigative judge collects evidence and questions witnesses,28 and may only question a witness through the investigative judge and with the latter’s permission.29 However, the investigative judge has an unfettered discretion to exclude the accused and his or her lawyer from investigative hearings.30 The accused can submit comments on witnesses’ testimony, to be included in the dossier.31

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.32

The Rules of Procedure and Evidence (IHT Rules) provide that the IHT will establish a Defense Office, headed by a director and supported by the Administration of the IHT, to ensure adequate facilities for counsel in the preparation of defense cases.33

Each trial chamber of the IHT consists of five judges.34 The conduct of a 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.35 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 issue a verdict and sentence in a written opinion. Convictions may be appealed to the Appeals Chamber of the IHT, which is constituted by nine appeals judges including the president of the IHT.36 A conviction and sentence may be reversed, revised, or set aside and the case sent back for re-trial.

The IHT applies the penalties that are available in Iraqi law.37 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.38 The death penalty is widely prescribed in the Iraqi Penal Code, including for the murder of more than one person.39 Consequently, most offenses over which the IHT has jurisdiction may incur the death penalty.

The IST Statute as originally promulgated permitted the appointment of non-Iraqi judges with expertise in international criminal proceedings to the trial chamber. The amended version that is the IHT Statute provides that non-Iraqi judges may be appointed only if a foreign state is a party to proceedings before the IHT.40 To date, no non-Iraqi judges have been appointed to any chamber of the IHT. 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” (the exact role of advisors, to whom they are accountable, and how they exercise an “assistance” function are unspecified, however).41 Non-Iraqi defense lawyers are permitted to assist the principal lawyer, but non-Iraqis cannot register as representing the accused unless they present proof of accreditation with the legal professional association in their country, and are then approved by the Iraqi Ministry of Justice.42

Almost the only source of non-Iraqi advisors and assistance has thus far been the US Embassy’s Regime Crimes Liaison Office (RCLO), established in March 2004 by the US Department of Justice and funded by the US Congress.43 Non-Iraqi defense lawyers were privately retained in the Dujail trial by Saddam Hussein, Barzan al-Tikriti, and Taha Yassin Ramadan (see also Section III.5, below).

17 This section draws on Human Rights Watch’s previous analysis of the IHT in The Former Iraqi Government on Trial.

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

19 Draft legislation should normally be referred by the relevant ministry or the Council of Ministers to the State Consultative Council (Majlis Shura al-Dawla) for review before being debated in parliament. In this instance, the Council of Ministers sent the draft statute to the State Consultative Council and the Transitional National Assembly simultaneously. Consequently, in August 2005 parliament debated and adopted a draft law that had not been reviewed by the State Consultative Council. When the error was discovered, the adopted law was sent to the State Consultative Council for review, then re-debated and re-enacted with further amendments in September 2005.

20 The Rules of Procedure and Evidence were also revised at this time, and were promulgated as an annex to Law No. 10 of 2005 on the same day. Rules of Procedure and Gathering of Evidence With Regard to the Iraqi High Tribunal (IHT Rules of Procedure and Evidence), Official Gazette of the Republic of Iraq, No. 4006, October 18, 2005, English translation by the International Center for Transitional Justice,

21 IHT Statute, Official Gazette of the Republic of Iraq, October 18, 2005.

22 IHT Statute, art. 1(2).

23 Ibid., art. 14. Two of the crimes listed in article 14 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 IHT.

24 IHT Statute, art. 16. The principal law is the Code of Criminal Procedure, No. 23 of 1971, as amended.

25 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. See Stewart Field and Andrew West, “Dialogue and the Inquisitorial Tradition: French Defense Lawyers in the Pre-Trial Criminal Process,” Criminal Law Forum, vol. 14, no. 3 (2003), pp. 261–316.

26 Christoph J.M. Safferling, Towards an International Criminal Procedure (Oxford, UK: Oxford University Press, 2001), p. 217.

27 Iraqi Code of Criminal Procedure, Law No. 23 of 1971, arts. 51-129.

28 Ibid., art. 57.

29 Ibid., art. 64.

30 Ibid., art. 57. Under the IHT Statute, the accused is guaranteed the right for counsel to be present when the accused himself or herself is being questioned as part of the investigative process.

31 Iraqi Code of Criminal Procedure, art. 63.

32 Defense counsel in the Dujail case were not invited to participate in the investigative judge’s taking of witness statements, and thus could not question or submit comments on witness testimony during the investigative phase. See Human Rights Watch, The Former Iraqi Government on Trial, p. 11, and also below, Section IV.4.a.

33 IHT Rules of Procedure and Evidence, rule 30(3)(c).

34 IHT Statute, art. 3(4)(B).

35 Iraqi Code of Criminal Procedure, art. 168(B). Article 16 of the IHT Statute makes the Code of Criminal Procedure the governing procedure for the trials, supplemented by the Rules of Procedure and Evidence.

36 IHT Statute, art. 3.4(A).

37 Ibid., art. 24.

38 Ibid., art. 24(4).

39 Iraqi Penal Code, Law No. 111 of 1969, art. 406 (1). The CPA suspended the application of the death penalty by means of Order No. 7 of June 10, 2003, section 3(1): CPA Order Number 7: Penal Code, CPA/ORD/9 June 2003/07, (accessed November 3, 2006). The Iraqi Interim Government reintroduced capital punishment for a range of offenses by means of Order No. 3 of August 8, 2004. The offenses for which the death penalty was reintroduced include premeditated murder. All the defendants in the Dujail case were charged with murder as a crime against humanity.

40 IHT Statute, art. 3(5).

41 Ibid., arts. 7(2), 8(9), 9(7).

42 Ibid., art. 19(4)(D).

43 See the discussion in Human Rights Watch, The Former Iraqi Government on Trial, pp. 17–18. Further discussion of the role of the RCLO is found below, in Section VI. According to the Foreign and Commonwealth Office website, the United Kingdom has provided 1.2 million UK pounds in training-related assistance to the IHT (this is less than 2 percent of the amount contributed to the IHT by the United States, which allocated US 128 million dollars to supporting the IHT between 2003 and 2006). See (accessed September 22, 2006). As discussed further below, two non-RCLO international advisors have been appointed, one to the first trial chamber shortly before the opening of the Dujail trial, and the second to the Defense Office in late April 2006, six months after the commencement of the Dujail trial.