The Iraqi Special Tribunal under International Humanitarian Law

• Author: Ali Adnan Alfeel
• Position: Assistant Lecturer of Criminal Law, College of Law, Mosul University. LL.B.(Mosul), LL.M.(Mosul)
• Pages: 11-47

Page 12

I Introduction

The people of Iraq have a legal and moral right to build a structure for the prosecution of the leading figures in the Ba’athist regime. More to the point, the judges who have risked their lives to build the rule of law in Iraq should rightfully expect the support and encouragement of the world rather than a cautious and lukewarm assurance that the civilized peoples of the world wish them the best. I was involved in the conceptual development and drafting of the Statute for the Iraqi Special Tribunal (IST), and have subsequently spent many hours with the judges and investigators of the court as they prepare to undertake their important work. I have gained a deep respect for the legal ethos and professional courage of the members of the Iraqi bar who have risked their lives and those of their families to serve the Iraqi people. My experience has convinced me that the creation of the IST is not only warranted under the existing structure of international law, but accords with the highest aspirations of those who purport to believe in the rule of law.

The creation of the IST was borne of necessity after the fall of Saddam Hussein’s regime. The exercise of punitive criminal accountability pursuant to domestic laws is at the heart of our understanding of what it means to have a society built on the rule of law, which in turn makes it the sine qua non of true sovereignty. This principle is so essential that the pursuit of justice often becomes a focal point for the military forces deployed to a society where the legislative and judicial systems have become corrupted, replaced, or have simply collapsed under the weight of tyranny.¹ Assuming its proper role on behalf of the Iraqi people, the Interim Iraqi Governing Council made the creation of an accountability mechanism for punishing those responsible for the atrocities of thePage 13Ba’athist regime one of its earliest priorities.² After an extensive and genuine partnership that entailed months of debate, drafting, and consideration of expert advice solicited from the Coalition Provisional Authority (CPA), the Iraqi Governing Council issued the IST Statute on December 10, 2003.³ The announcement of the Statute culminated a developmental process carried out under the auspices of the Legal Affairs subcommittee of the Iraqi Governing Council led by Judge Dara, and by sheer coincidence preceded the capture of Saddam Hussein by only four days.

Ancillary to the announcement of the Statute, the Iraqi Governing Council and CPA requested that the Defense Institute of International Legal Studies (DIILS)⁴ present a seminar on investigating and prosecuting international crimes in accordance with international norms. The diverse group of 96 Iraqi judges, prosecutors, and lawyers who gathered in Baghdad were among the first Iraqis outside the Governing Council to review the Statute. Members of this group repeatedly and enthusiastically referred to Saddam’s regime as the “entombed regime.”The members of the Iraqi legal community that we were teaching later formed the pool of Iraqis who were initially considered for various positions inside the Iraqi Special Tribunal. I was in the room with those Iraqi judges and prosecutors in Baghdad when they learned of the successful capture of President Hussein. In the frenzy of joy and palpable relief that followed the electric news,⁵ one of the judges hugged me and exclaimed “Today is day one!”His spontaneous vision captured the sense of many Iraqis that the definitive end of the Hussein regime was a watershed event for those dedicated to leading Iraq towards stability and sovereignty founded on respect for human rights and the rule of law. In addition, judges have reiterated to me on a number of occasions that they view theirPage 14 important work as the doorway that will expand the influence and application of international humanitarian law across the Arab-speaking areas of the world.

The dedication of the Iraqi legal professionals to restore the rule of law reflects the broader societal thirst for accountability that is a foreseeable feature of a post-conflict civil society emerging from widespread and official governmental human rights abuses.⁶ As a microcosm of Iraqi society, the overwhelming majority of that original group of 96 legal professionals had suffered the loss of immediate family members to the criminal acts of the regime. One judge was the only survivor of seven brothers. The elation of the Iraqi people mirrored that of other societies where the civilian population prized justice and an end to repression in the immediate aftermath of operations even in areas where the citizens suffer from extreme poverty and overwhelming material needs.⁷ The demise of the regime fanned the long-subdued embers of hope that the citizenry had never quite forgotten; people began to openly discuss the dim but potent aspiration that they might be able to live in peace and stability secure in the knowledge that the rule of law would protect their home and family. The priority that the common people attach to the restoration of true justice perhaps reflected an inchoate realization that the freedom from oppression achieved by coalition forces could not be sustained without effective restoration of personal accountability based on law. The elation that Iraqi citizens expressed as the statues of Saddam Hussein fell in Baghdad testified to their deep desire for the restoration of a society built on the rule of law rather than one dominated by the whims of a dictator supported by the machinery of bureaucratic oppression.

The IST was created with the express goal of bringing personal accountability toPage 15those Ba’athists that were responsible for depriving Iraqis of their human rights, and of virtually extinguishing the real rule of law for over two decades.⁸ It would be ironic indeed if the mechanism created by the Iraqis to address the human rights failings of the past in itself became the vehicle for denying and suppressing human rights into the future. The purpose of this paper is to assess the creation and implementation of the IST in light of relevant human rights norms. From my perspective, the men and women who have committed themselves to serve the IST are the ones who have shouldered the burden of replacing the osmosis of fear that pervaded Iraq under Saddam’s rule with the peace and societal stability that flows from a solid rule of law.

It is false to presume that the Tribunal will be capable of achieving only the shadow of justice through the vehicle of undermining the core human rights of those who will face charges under its authority. Such an assumption is unwarranted as demonstrated by a closer examination of the structure of the Statute and its accompanying Rules of Evidence and Procedure. In particular, the interface of the IST Statute with the preexisting structure of the Iraqi Code of Criminal Procedure reveals a developed web of legal protections that fully accord with existing human rights principles. This paper will discuss the basis under international law that warranted the formation of the IST and describe the salient features of the Tribunal’s structure. After noting some of the most important points of comparison between the IST and earlier accountability mechanisms, the paper will conclude with a detailed explication of the relationship between the Tribunal and the most important of the existing human rights norms related to the process of criminal accountability for crimes derived from international law.

II Legal Authorities for the Creation of the Iraqi Special Tribunal

A The Law of Occupation

The relationship of a subjugated civilian population to the foreign power temporarily exercising de facto sovereignty is regulated by the extensive development of the law of occupation.⁹ As a matter of legal rights and duties, “[t]erritory is considered occupiedPage 16when it is actually placed under the authority of the hostile army.” ¹⁰ This legal test is met when the following circumstances prevail on the ground: first, that the existing governmental structures have been rendered incapable of exercising their normal authority; and second, that the occupying power is in a position to carry out the normal functions of government over the affected area.¹¹ For the purposes of United States policy, occupation is the legal state occasioned by “invasion plus taking firm possession of enemy territory for the purpose of holding it.” ¹²

Although a state of occupation does not “affect the legal status of the territory in question,” ¹³ the assumption of authority over the occupied territory implicitly means that the existing institutions of society have been swept aside. Because the foreign power has displaced the normal domestic offices, the cornerstone of the law of occupation is the broad obligation that the foreign power “take all the measures in his power to restore, and ensure, as far as possible, public order and safety...”(emphasis added).¹⁴

In the authoritative French, the occupier must preserve “l’ordre et la vie public”(i.e. “public order and life”).¹⁵ On that legal reasoning alone, the establishment of the IST could have been warranted under the inherent occupation authority of the Coalition as an integral part of the strategic plan for restoring public calm and peaceful stability toPage...