A poisoned chalice: the substantive and procedural defects of the Iraqi High Tribunal.

• Author: Heller, Kevin Jon

1. INTRODUCTION

   On April 7, 1993, Pierre-Richard Prosper, the U.S. Ambassador-at-Large for War Crimes, announced that the Iraqi government would assume primary responsibility for prosecuting the innumerable war crimes, crimes against humanity, and acts of genocide that Saddam Hussein committed during his three decades of bloody rule. (1) Human rights groups, who had hoped--and perhaps even expected--that Saddam would be tried by either an ad hoc or a hybrid international tribunal, immediately criticized the decision. Human Rights Watch, for example, argued that a domestic trial would be a mistake, noting that the Iraqi judiciary had been "deeply compromised" by years of Ba'ath Party rule and did not have the capacity to handle the complicated trials Saddam's crimes would require. (2) Amnesty International agreed, noting its long-standing concerns about Iraq's "widespread human rights violations relating to the criminal justice system." (3)

   Such skepticism, it turns out, was fully warranted. Before the trial even began, the president of Iraq publicly announced that Saddam had "confessed" to his crimes. (4) One judge of the Iraqi High Tribunal (IHT) resigned because the government was undermining his independence, (5) and another was removed for being a member of the Ba'ath Party--a claim that not even the chief prosecutor believed, and which was later withdrawn. (6) The Tribunal added new charges against the defendants in the middle of trial. (7) A number of witnesses for the defense were prevented from testifying, and two who did testify were later beaten into recanting their testimony and charged with perjury. (8) The Tribunal flatly ignored defense motions, including one that sought disclosure of potentially exculpatory evidence. (9) The defense was not even given an authoritative version of the IHT Statute and Rules of Procedure and Evidence prior to trial. (10)

   These criticisms, however, are only half of the story. A trial is only as fair as the substantive and procedural law that it applies; if either or both violate due process, a defendant's trial will be unfair no matter how decorously it is conducted. Indeed, in the context of a tribunal like the IHT, which is intended to hear multiple cases over a period of many years, the underlying substantive and procedural law is arguably more important than the fairness of any individual trial. Although trial conduct in general can be improved by appointing better judges, substantive and procedural reform requires legislative action, a slow and unpredictable process in the best of circumstances and one that may be nearly impossible in a political environment as troubled as Iraq's.

   In the wake of Saddam's first trial, then, it is critical to ask whether the IHT's substantive and procedural law satisfies the requirements of international due process. As we shall see, in numerous important respects the answer to that question is an emphatic "no."

   Before proceeding, two caveats are in order. First, this essay examines the IHT's substantive and procedural law solely in relation to the requirements of international due process; it does not compare them to the traditional requirements of Iraqi criminal law. Although the latter comparison is equally important, it requires an understanding of Iraqi criminal law that I do not possess. Suffice it to say here that many aspects of the IHT violate not only international due process, but also--as M. Cherif Bassiouni has eloquently pointed out--Iraqi criminal law's thoroughgoing positivism. (11)

   Second, the fact that this essay focuses on the IHT's weaknesses should not be taken to mean that the Tribunal has no strengths. On the contrary, insofar as the IHT incorporates many of the best elements of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), the Tribunal's substantive and procedural law represent a significant advance over some of the more problematic aspects of traditional Iraqi criminal justice. (12) The intent of this essay, therefore, is constructive as well as critical--not simply to identify problems with the IHT, but also to suggest ways in which its substantive and procedural law could be improved.

2. INTERNATIONAL DUE PROCESS

   Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that any person charged with a criminal offense is entitled to "a fair and public hearing by a competent, independent and impartial tribunal established by law." (13) A fair trial, in turn, is defined by Article 14(3) as one that guarantees a defendant, at a minimum, the following rights:

   (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

   (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

   (c) To be tried without undue delay;

   (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

   (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

   (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

   (g) Not to be compelled to testify against himself or to confess guilt. (14)

   Article 14, in short, establishes the basic requirements of international due process. The Republic of Iraq ratified the ICCPR in 1971, obligating the government to ensure that all of its courts, including the IHT, "give effect to the rights recognized" by the treaty. (15)

   What follows is a systematic comparison between the IHT's substantive and procedural law--which includes, by reference, the Iraqi Penal Code of 1969 (16) and the Iraqi Code of Criminal Procedure (17)--and the requirements of Article 14. The essay will also refer, where appropriate, to the provisions of human rights conventions similar to the ICCPR, such as the European Convention on Human Rights; to illustrative international human rights instruments like the Basic Principles on the Independence of the Judiciary; and to the substantive and procedural law of the ad hoc tribunals and the ICC. The latter sources are not binding on Iraq, but are nevertheless indicative of how the ICCPR's more general provisions should be interpreted. (18)

3. SUBSTANTIVE LAW

   There are two main problems with the substantive law applied by the IHT. First, because the Tribunal's temporal jurisdiction extends back to 1968, its subject-matter jurisdiction over war crimes and crimes against humanity likely violates the principle of non-retroactivity. Second, the vagueness of the domestic crimes included within the Tribunal's subject-matter jurisdiction violates the principle of specificity.

   1. The Retroactivity Problem

      Article 1 of the IHT Statute gives the Tribunal jurisdiction over, inter alia, crimes against humanity and war crimes committed between July 17, 1968, and May 1, 2003. (19) Both crimes are expansively defined: Article 12 prohibits all of the crimes against humanity contained in Article 7 of the Rome Statute, omitting only enforced sterilization and apartheid, (20) while Article 13 prohibits all of the war crimes contained in Article 8 of the ICC Statute. (21)

      Although the IHT deserves credit for its forward-looking approach to international criminal law, its decision to apply crimes against humanity and war crimes retroactively to 1968 is problematic. Article 15 of the ICCPR provides that "[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed." (22) This non-retroactivity principle has long been considered one of the "cornerstone principles of criminal law" and is found in nearly all of the world's legal systems. (23) The principle is also specifically enshrined in Article 10 of the new Iraqi Constitution. (24)

      Herein lies the problem: a compelling case can be made that at least some of the crimes prohibited by Articles 12 and 13 of the IHT Statute were not criminal under either international law or domestic Iraqi criminal law until the early 1990s.

      1. Crimes Against Humanity

         The primary problem with Article 12 is that it does not require a nexus between crimes against humanity and armed conflict, (25) thus permitting the Tribunal to prosecute such crimes even if they were committed during peacetime. Customary international law, however, did not "indisputably" criminalize peacetime crimes against humanity until the ICTY's Tadic decision in 1995. As Cassese says:

         It is probably with the 1968 Convention on the Non-Applicability of Statutory Limitations that the process of a gradual crystallization in international customary law of a rule proscribing crimes against humanity even in time of peace was set in motion. This crystallization became indisputable after being established in 1995 by the Appeals Chamber of the ICTY. (26) Prior to 1995, in other words, crimes against humanity were only illegal under customary international law when committed during an armed conflict, whether international or internal in character. Such crimes were also not criminal under domestic Iraqi criminal law prior to the enactment of the IHT Statute; the Iraqi Penal Code of 1969 did not recognize them. (27) The IHT, therefore, cannot prosecute a defendant for crimes against humanity committed during peacetime prior to 1995 without violating the principle of non-retroactivity. (28)

         If...