Ceding the high ground: the Iraqi High Criminal Court statute and the trial of Saddam Hussein.

• Author: Bassiouni, M. Cherif

INTRODUCTION I. THE LEGAL AND POLITICAL STRUCTURES IN IRAQ FROM MARCH 19, 20 TO OCTOBER 15, 2005 II. THE IRAQI SPECIAL TRIBUNAL A. The Establishment of the Iraqi Special Tribunal B. Legitimacy of the Iraqi Special Tribunal's Establishment III. THE IRAQI HIGH CRIMINAL COURT STATUTE A. The Adoption of the Iraqi High Criminal Court Statute B. The Iraqi High Criminal Court as a Component of the Iraqi Legal System C. Positive Revisions in the Iraqi High Criminal Court Statute 1. Language 2. Title of the tribunal 3. Appointment of Non-Iraqi "Experts" and "Observers" 4. Providing Legal Basis for Procedures for Removal of Judges a Prosecutors 5. Qualifications for Appointments of Judges and Public Prosecutors 6. Providing Legal Basis for the Appointment of Non-Lawyer to the IHCC 7. Deletion of Provision for Removal of Tribunal's President D. Technical Drafting Errors in the Iraqi High Criminal Court Statute E. Problematic Revisions in the Iraqi High Criminal Court Statute 1. Procedures for Appointment of Judges and Prosecutors 2. Compensation of Judges, Investigative Judges and Prosecutors 3. Transfer of Judges and Prosecutors 4. Revision of Article 12(First) Defining Crimes Against Humanity F. Statutory Shortcomings Inherited from the Iraqi Special Tribunal 1. The Jurisdictional Gap and the Lack of a Status of Forces Agreement 2. Ba'ath Party Membership Disqualification 3. Transfer of Cases to the IHCC 4. Substantive Issues of Legality a. Genocide, War Crimes, and Crimes Against Humanity b. Other Crimes Under Iraqi Law c. Establishing Penalties 5. Due Process Guarantees 6. "Exceptional" Nature of the Tribunal ARTICLE I. IV. A COMPARATIVE HISTORICAL PERSPECTIVE CONCLUSION INTRODUCTION

On July 1, 2004, Saddam Hussein and eleven of his co-defendants were brought before Ra'id Juhi, an Iraqi investigative judge, who was selected to preside over the initial hearing held in a specially designed courtroom in the U.S. military headquarters for Iraq, Camp Victory. (1) Millions of Iraqi, Arab, and international viewers watched the televised proceedings as the defendants were read indictments and instructed to submit a plea to the investigative judge. (2) The scene was reminiscent of an American television legal drama. This first appearance of Hussein following his capture by U.S. forces on December 13, 2003 established worldwide the strong and positive impression that a judicial process to reckon with the crimes and atrocities of the former regime had been launched. The Iraqi Criminal Procedure Law was conspicuously displayed on the left side of the table in front of Judge Juhi, symbolically asserting the Iraqi nature of the proceedings and their grounding in Iraqi law, in spite of the fact that the proceedings were carefully choreographed and carried out in the fashion of an arraignment before a U.S. court, a hearing wholly alien to the Iraqi legal system. While the legal infrastructure that would later undertake and support the much-anticipated and scrutinized al-Dujail (3) and al-Anfal (4) trials of Hussein and other former high-level Ba'athist leaders was still in the process of being organized, these subtle and conflicting signs during the first public glimpse of court proceedings were indicative of the tensions inherent in the ill-advised attempt to blend two distinct legal systems in a single specialized institution. The shortcomings of this blending process bedeviled the work of the Iraqi High Criminal Court (IHCC), (5) the successor of the Iraqi Special Tribunal (IST). (6)

These shortcomings do not in any way diminish the valid justifications for prosecuting Hussein and other former high-level Ba'athist leaders. The widespread and systematic violence and atrocities of the Ba'athist regime, which resulted in an estimated five hundred thousand deaths and hundreds of thousands of other victims of repression and abuse, necessitated broad-based post-conflict justice. (7) The discussions, debates and proposals on this issue long predated the U.S.-led invasion of Iraq in March of 2003, evidencing the centrality of post-conflict justice to the future of Iraq. (8)

The symbolic importance of prosecuting Hussein and the senior leaders of the Ba'ath party for genocide, crimes against humanity, war crimes, and other crimes specified under Iraqi law cannot be underestimated in light of the history of impunity for such crimes that has long plagued the Arab world. At the very least, bringing Hussein to trial to answer for these crimes must be considered a significant achievement, the implications of which will likely be judged to be more significant in retrospect. However, the intrinsic value of prosecuting Hussein and his fellow regime leaders does not independently establish the legitimacy, credibility, and legacy of the IHCC.

The IHCC has faced many hurdles not of its own making, not the least of which have been a burgeoning insurgency and a nascent sectarian civil war that escalated after the establishment of the tribunal. (9) The further fact that the tribunal was founded following a foreign invasion and turbulent occupation meant that the establishment and work of the tribunal has been scrutinized and has often been assessed based on the political convictions of observers to the proceedings and their judgments regarding the propriety of the Iraq war itself. Due to this highly politicized context, it was paramount that the establishment of the tribunal and the statutory authority on which the tribunal was established adhere to the rule of law and provide a basis for carrying out prosecutions in a manner that accorded with domestic and international legal standards and processes.

Many critics of the IHCC and its proceedings would never have been satisfied with this type of judicial process regardless of the propriety in which such an institution was established. However, even sympathetic observers who advocated prosecutions of former high-ranking Ba'athists have been forced to acknowledge and address the technical and legal infirmities associated with the IHCC and its statute (IHCC Statute). The historical importance of the IHCC for Iraq and the Arab world demanded that the statutory framework of the tribunal be established in a procedurally and substantively proper fashion that could withstand the stringent scrutiny that it has inevitably faced. While the IHCC Statute represents an improvement on its predecessor, the statute of the IST (IST Statute), the IHCC Statute does not address many of the major flaws that plagued the IST Statute. This is particularly troublesome in light of the fact that one of the authors of this article personally briefed the Iraqi judges, investigative judges and prosecutors on the IST Statute's flaws and potential solutions to address these infirmities-recommendations that most of the Iraqi participants agreed with at the time. (10)

In assessing the shortcomings of the IHCC, some degree of blame must be apportioned to the constant meddling, undue pressure, and interference of certain Iraqi political actors. However, a much larger share of blame must be assigned to the occupation authorities who have shaped the contents and processes of post-conflict justice in Iraq.

All too often U.S. individuals assessing the situation in Iraq, whether politically or in connection with the IHCC, have done so with a limited perspective that never accounted for the realities of Iraqi culture and society. During the period prior to the launch of military operations in Iraq, officials in the White House and the Department of Defense (DOD) exhibited little interest in the issues of post-conflict justice. The Department of State's Future of Iraq Project's "Working Group on Transitional Justice" dealt extensively with post-conflict justice in Iraq for more than a year prior to the invasion. However, the National Security Council (NSC), ostensibly at the request of senior DOD leadership, did not circulate its final report. Thus, those in the administration who would later decide on post-conflict justice in Iraq never had the opportunity to study the work product of many thoughtful Iraqi expatriate jurists and other non-Iraqi experts on this vital issue. The politics of inter-agency rivalry prevailed over sound legal judgment. Instead, the NSC, in an unwise attempt to craft a Solomonic solution, handed over Iraqi post-conflict justice to the Department of Justice (DO J). As a result, the Regime Crimes Liaison Office (RCLO), consisting of capable and dedicated U.S. prosecutors, was established to take over the task of crafting a post-conflict justice strategy, a project that the senior DOD leadership sought to keep out of the reach of the Department of State.

The DOJ staff, which had considerable experience in the American criminal justice system, lacked the legal and practical expertise necessary to deal with the realities of the Iraqi legal system. Those charged with dealing with post-conflict justice issues in Iraq did not know Arabic and had limited knowledge of the Iraqi legal system or its culture and traditions. The same criticism must also be directed at many of the non-governmental organizations (NGOs) and academics whose expertise and opinion were solicited with respect to post-conflict justice in Iraq. Almost all of those involved in either creating or critiquing the post-conflict justice framework, within the administration and in the non-governmental sector, were not well versed in the history of the Iraqi legal system, its performance over the past thirty years, or the competency levels of those operating the criminal justice system. This did not deter policy-makers and commentators from opining on the proper course of action with respect to post-conflict justice and the manner in which the tribunal should be structured and administered.

The IHCC represents a good-faith effort to grapple with the grim legacy of Ba'athist rule and to carry out prosecutions through proper judicial channels and...