Appendix A.

PositionBalance between administrating justice and protecting basic human rights

In the name of Allah, Most Gracious, Most Merciful "And if you rule, do so with fairness."

Case no 1/9 First/2005 Al-Dujail Lawsuit (Case) Introduction Introduction to the Judgment Decision The Legal Context Final Outcome Introduction

Prior to considering the great quantity of papers and documents submitted before the tribunal (in a disorderly manner), and since any penalty imposed on any of the defendants should be based on established and proven evidence, this tribunal shall take into consideration the appropriate extent of freedom of action and choice (open to the tribunal) that will allow it to make decisions (judgments), within the context of maintaining a balance between administrating justice and protecting basic human rights, which forms an important and complimentary aspect of the stages of this case.

The trial chamber has analyzed the range of legal penalties set out in the law in comparison with the eligibility (admissibility) of the evidence submitted before the tribunal.

There is no doubt that, according to paragraph one of article (24) of the Iraqi High Tribunal law number (10) for the year 2005 and the rules of procedure and of collecting evidence annexed to the said law; and according to the law of criminal procedure number (23) for the year 1971, that the penalties on the basis of which this tribunal shall make its judgments are the penalties stipulated in criminal law number (111) for the year 1969;

And whereas this court also takes into consideration the decision of the transitional coalition government number (7) for the year 2005, section three thereof, which stipulates suspending the death penalty in each instance where it is the only penalty stipulated for penalizing the perpetrator of a (certain) crime, then the court will have the right to substitute it with sentencing the defendant to life imprisonment or imposing another penalty based on the stipulations of the penal code;

And whereas the basis of the work of the transitional coalition government, in its capacity as an interim government in Iraq (set up) for the purpose of achieving full sovereignty according to article (43) of The Hague Laws of 1907, whereby regulatory bill no (1) of the transitional coalition government shall be the regulatory basis for the period that will follow the previous interim government;

And according to the second part of the said regulatory bill, the laws that were applicable in Iraq as on April 16, 2003 shall remain effective and applicable after that date unless the transitional coalition government decides to suspend, substitute or cancel the said laws and promulgate new legislation to replace them via the democratic institutions of Iraq;

Judge Raouf Rashid AbdulRahman (seal & signature)

Seal of the Iraqi High Court

The said laws shall remain in effect and applied because they do not prevent the Temporary Coalition Government from practicing its rights and fulfilling its obligations, or as long as they do not disagree with this regulatory list or with any other regulatory list issued by the Temporary Coalition Government.

On the other hand, and in reference to order number (7) issued by the Temporary Coalition Government, and section three of said order concerning the penal code, and in item (2) of said order it is "stated" that the execution penalty shall be suspended in those cases where the execution penalty stipulated for penalizing the perpetrator. The court may substitute it by penalizing the accused to life-in-prison or to force upon him another penalty according to the stipulations of the penal code.

And as been clarified to us, the Temporary Coalition Government is considered a transitional authority in Iraq until achieving full sovereignty according to article (43) of The Hague Laws of 1907--the orientation of the occupier is to respect the language, norms and traditions of the occupied country. And whereas the Coalition Government had the legal authority to amend the Iraqi Local Law according to the conditions determined in paragraph (64) of Geneva Convention for protecting the people, and according to the decision of the Security Council number (1483). And whereas the President of the Coalition Government suspended the execution penalty and did not cancel it, and that it is legally stipulated in the Iraqi penal code number 111 for the year 1969 i.e. suspending the execution penalty by the coalition government and not canceling it, and this penalty exists in the Iraqi penal code since the year 1919.

Therefore, the first criminal body in the Iraqi court sees unanimously that it can judge any of the accused in this case by the appropriate penalty due to the seriousness of the felony or the committed crime including the execution penalty in accordance with term (24) of the Iraqi High Court number (10) for the year 2005 and the amended Iraqi penal code number (111) for the year 1969.

According to article (1) second of the Iraqi High Court number (10) for the year 2005, the Court's authority shall be applied to every physical and legal person whether Iraqi or non-Iraqi, residing in Iraq and accused in committing one of the crimes stated in articles (11, 12, 13, 14) of said law committed as of 17/7/1968 until 1/5/2003 in the Republic of Iraq or in any other place, comprising the following crimes:

Judge Raouf Rashid AbdulRahman (seal & signature)

Seal of the Iraqi High Court

  1. Extermination

  2. Crimes against humanity

  3. War crimes

  4. Violation of Iraqi laws stipulated in article 14 of this law.

    And in accordance with article (12)

    First: of the law effective in this case and according to the charges brought against the accused (Saddam Hussein Majeed, Barazan Ibrahim Hassan, Taha Yassin Ramadan, Awad Hamad El Bandar, Mezher Abdalah Kazem Roueid, Abdalah Kazem Roueid, Ali Dayeh Ali- Mohamad Azawi Ali El Marsoumi).

    And according to the item First of the accusatory list brought against the accused includes:

  5. Intentional homicide

  6. Extermination.

  7. Slavery.

  8. Displacement and forcing people to move.

  9. Imprisonment and strict prohibition of any physical freedoms, which infringes on the basic regulations of the international law.

  10. Torture

  11. Rape, coercive pregnancy, forcing on prostitution, and any other types of sexual violence of similar seriousness.

  12. Persecution of any specified group of people for political or ethnical or national or cultural or religious reasons or related to the gender or any other reasons not permitted by the international law in connection with any of the above mentioned acts or type of sexual violence of similar seriousness.

  13. Coercive concealment of people

  14. Other non-human acts of similar seriousness, which may intentionally cause severe suffering or dangerous harm to the body or mental or physical health.

    Judge Raouf Rashid Abdul Rahman (seal & signature)

    Seal of the Iraqi High Court

    Second: For the purpose of applying the item First, the above terms have the following meanings:

  15. Attack against any group of civilians means a way of behavior that includes frequently committing of the acts stated in item First of this article against any group of civilians pursuant to the policy of the government or organization that imposes such attack or supports such policy.

  16. Extermination means the willful imposing of deprivation from food or medicine intending to cause the death of some people.

  17. Slavery is the state of being under the control of another person including the practice of such control by trading in people as women and children.

  18. Displacement or coercively moving people means moving people coercively from the region where they legally reside, by repelling or any other coercive act without justifications permitted by the international law.

  19. Torturing means intending to cause severe pain or suffering whether physical or mental on the confined person or under the control of the accuser provided that torturing does not comprise pain or suffer resulting from legal penalties or other relevant thereto.

  20. Persecution means severe and intentional deprivation of the basic rights, which disagrees with the international law because of the identity of the group.

  21. Coercive concealment of people means to capture people or confine them or kidnap them by the government or a political organization or by it permitting or supporting this act then refusing to acknowledge the deprivation of the those people of their freedoms or giving information about their fate or their place in order to deprive them from the legal protection for a long period of time.

    Article (17)

    First: In the case where no legal text exists in this law or in the regulations constituting it the criminal justice code will apply indict and try those who are accused as per the following cods:

    Judge Raouf Rashid AbdulRahman (seal & signature)

    Seal of the Iraqi High Court

    The period from 17/7/1968 to 14/2/1969 Penal Code of Baghdad for the year 1919.

  22. The period from 15/12/1969 till 1/5/2003 penal code number (111) for the year 1969 that took effect in 1985.

  23. Military penal code number 13 for the year 1940 and Military procedure law number (44) for the year 1941.

    Second: The court and the appeal commission may refer to the precedence in the international criminal courts for interpreting the provisions of articles (11, 12, 13) of the law.

    Third: The provisions of the penal code shall be effective in conformity with the provisions of this code and the international legal obligations relating to the crimes included in the court's authority upon applying the special provisions of exemption from criminal responsibility.

    Fourth: The crimes stipulated in articles (11, 12, 13, 14) of this law shall not be subject to the prescription that drops the criminal lawsuit and penalty.

    And upon carefully examining the aforementioned acts as crimes against humanity in article (12) of the criminal court, the court sees that there are criminal acts identified within the amended penal code number (111) of 1969 that agrees with...

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