Bulletin Volume 30, Issue 2 (Spring 2004)

Iraqi Special Tribunal: Prospects for Justice?

Despite present uncertainty in Iraq's security and vital services, past leaders are set to face trial by the Iraqi Special Tribunal as created by the Statute of the Iraqi Special Tribunal (SIST). The Iraqi Governing Council, made up of individuals selected by the Coalition Provisional Authority headed by U.S. Ambassador L. Paul Bremer III, passed the statute last December. Some commentators have questioned whether the laws of occupation permit the creation of such a tribunal;[1] however, any such breach pales in comparison with the pre-emptive invasion of Iraq itself, widely regarded as inconsistent with international law on the use of force.

A number of facts suggest that the tribunal could be open to highly damaging charges of dependence and partiality. Named as tribunal president is Salem Chalabi, nephew to the head of the Iraqi National Congress, a political opposition group funded by the U.S. since the gulf war. Also, evidence for war crimes charges is currently being assembled by U.S. Department of Justice officials.

These and other such details may not only influence the actual decision-making of the tribunal but will also undoubtedly influence the perception of the fairness of the tribunal’s work. In addition, the SIST provisions themselves will also likely be problematic. An examination of key provisions of the statute reveals a process that inadequately protects the rights of the accused, and fails international standards of trial fairness, foregoing an opportunity to further the rule of law in Iraq.

Covering acts committed between July 17, 1968 and May 1, 2003, the tribunal has jurisdiction over crimes against humanity, war crimes and genocide, as well as Iraqi law crimes including attempting to manipulate the judiciary, wasting public assets and invasion of an Arab country. Only natural persons who are Iraqi nationals or residents may be charged.

Approximately 300,000 Iraqis were killed under the Ba’athists. Hussein himself is expected to be charged with genocide for the 1988 Anfal campaign against the Iraqi Kurds, which killed 100,000 people. Crimes against humanity and war crimes charges will also probably arise from the mass killings which served to quell the 1991 Iraqi uprisings as well as from the use of chemical weapons against Iranian soldiers and Kurdish civilians. Other charges will result from the repression of Marsh Arabs and forced minority expulsions in the North.

The statute contains no prohibition on capital punishment. Tribunal offenses which are criminal under Iraqi law, such as rape or murder, will be punished according to Iraqi law, which includes death by hanging. Where tribunal offenses are not crimes under Iraqi law, penalties will be as determined by the Trial Chamber judges (art. 24.e). As the tribunal has the authority to try any Iraqi, the death penalty could be fairly widely imposed and not just in high profile cases like that of Hussein. Yet international law militates against execution.

The official language of the tribunal is Arabic and the statute makes no provisions for the accused to be informed of a charge in a language he understands or to be granted the services of an interpreter at trial. Also, while the ICCPR bans prosecution of a person more than once for the same crime, the tribunal statute permits such an outcome with the approval of the Appeals Chamber.

The SIST protects the rights of the accused during trial, but it guarantees few rights during the investigation phase. It guarantees a right to consult a lawyer during questioning, but not the right to remain silent, to be informed of potential charges or to be free from coercion, duress, threat, torture or arbitrary detention/arrest. This exposes the accused to violations of the fundamental human right to be free from arbitrary arrest or detention.

Moreover, at article 17.a, the SIST provides that “the general principles of the criminal law will be... the Criminal Procedure Code of 1971, subject to the provisions of this statute and the rules made thereunder”. At paragraph 218, the 1971 Code permits in certain circumstances, confessions obtained through physical coercion, a possibility which the tribunal statute does not directly rule out.

Also, the tribunal is not bound to use the criminal standard of proof beyond a reasonable doubt. The UN Human Rights Committee in its official comment to article 14.7 of the International Covenant on Civil and Political Rights has stated that proof beyond a reasonable doubt is the appropriate standard to employ in criminal proceedings.

While the SIST requires that judges “be of high moral character, impartiality and integrity” with “qualifications required for the appointment to the highest judicial offices,” it does not explicitly require that judges have experience in criminal proceedings. Instead it holds that during judges' selection “due account shall be taken of the experience of the judges in criminal law and trial procedures”(art. 5.a, 7.d). There is also no requirement that prosecutors be impartial or of high moral character.

The SIST provides that prosecutors and investigative judges act independently and prohibits them from seeking or receiving instructions from any official or other source (art. 7.j, 8.b). Unfortunately, no such provision applies to trial and appeals judges who will be responsible for sentencing.

The tribunal statute thus shows serious weaknesses in protecting the rights of the accused and the guarantee of a fair trial. Unfortunately, the tribunal has questionable potential to end the culture of impunity which for many years has plagued Iraq, and to a certain extent, the rest of the world.

* B.A. (Hons.), Third year LL.B. student at the University of Ottawa and M.A. candidate at the Norman Paterson School of International Affairs, Carleton University. Robin Hansen is also the CCIL student intern at the University of Ottawa for the academic year 2003-2004.

[1] Memorandum to the Iraqi Governing Council on ‘The Statute of the Iraqi Speical Tribunal’, Human Rights Watch, (December 2003), online: <http://www.hrw.org/backgrounder/meno/iraq121703.htm.> [hereinafter Memorandum] at 1.