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 Prosecuting Saddam Hussein A Conversation with Fiona McKay, Director of the International Justice Program at the Lawyers Committee for Human Rights (12/19/03) Read Fiona McKay's Op-Ed "Give Hussein Due Process" in the Miami Herald (12/17/03) Prosecuting Saddam: Tribunals Face Challenges to Legitimacy (12/15/03) Iraq Special Tribunal Could Bring More Stability (12/12/03) Brief Overview of the Iraqi Special Tribunal (12/10/03)  What We Do Our Experts Contact Us 
International Criminal Court |
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Brief Overview of the
Iraqi Special Tribunal for Crimes Against Humanity On the basis of what authority was the tribunal established and what will be the supervisory body? The Statute was enacted directly by the Iraqi Governing Council. The U.S. Administrator for Iraq, Paul Bremer, temporarily ceded legislative authority to the Council for that purpose. After the Governing Council is succeeded by a future Iraqi governing authority, all the powers given under the Statute will be transferred to that new authority. Who will the tribunal try? The tribunal will have jurisdiction over Iraqi nationals or residents of Iraq. Following the capture of Saddam Hussein, the Iraqi Governing Council announced that he would be tried by the tribunal. At this time it is not known precisely who will be tried by the tribunal or how many trials are contemplated. Governing Council members have said that the tribunal will hear hundreds of cases but that the first indictees would include former regime members who appear on the U.S. military’s list of 55 most wanted Iraqis. The Statute includes the principle of command responsibility,
according to which not only those who actually commit a crime, but those
in the chain of command who order it to be carried out can be held responsible.
It also specifies that no one shall have immunity from criminal responsibility,
for instance because of any official position including head of state. The tribunal will have jurisdiction over the crimes of crimes against humanity, war crimes and genocide. The tribunal will also be able to prosecute three crimes under Iraqi law:
These charges are likely to include atrocities committed against several ethnic groups within Iraq, including Kurds, Turcomans and others such as the violent repression of the Iraqi Kurds during a massive counter-insurgency operation from 1987, culminating in the Anfal campaign of 1988. Over 5,000 Kurds were killed in a chemical attack on the town of Halabja alone. Charges are also likely to include crimes committed against Shi’ites, particularly during the violet repression following the revolt against the regime in 1991, in which villages were shelled and burnt and ancient marshes drained, resulting in thousands of deaths, forced displacements and the destruction of communities of the Marsh Arabs. The tribunal will have jurisdiction not only over crimes committed within Iraq itself, but also crimes committed during Iraq’s war against Iran which lasted from 1980 to 1988, and during its invasion and occupation of Kuwait in 1990-1991. How will the tribunal be organized? The tribunal will have at least one trial chamber, each with five judges. It will also have an appeal chamber with nine judges. The President of the Appeals Chamber will be the President of the Tribunal. There will also be up to twenty Investigating Judges, a Chief Prosecutor with up to twenty Prosecutors, and an Administration Department. Who will be the judges? The Statute provides that non-Iraqi judges with experience in dealing with crimes against humanity, genocide and war crimes may be appointed if the Governing Council decides this is necessary. The judges will be appointed by the Iraqi Governing Council, who will consult with a new Judicial Council. No one who has been a member of the Ba’ath Party may be a judge. How will the crimes be investigated? The Tribunal will adopt the system of Investigative Judges which is used in Iraq and common to legal systems with a civil law (as opposed to common law) tradition. Up to twenty permanent Investigative Judges will be appointed by the Governing Council, and each will work independently with a team to investigate individuals and gather evidence. Are due process rights guaranteed? The Statute lists certain due process rights for all indictees, including:
What sentences can the tribunal impose? The Statute does not exclude the death penalty, and simply provides in general that sentences will be those that exist under Iraqi law. Will non-Iraqis play a role at the tribunal? The Statute specifies that the judges, prosecutors and the director of the Administration Department will be Iraqi nationals. However the possibility is kept open of appointing non-Iraqi judges (see above). In addition, the Statute specifies that non-Iraqi experts must be appointed “in advisory capacities or as observers”. They will assist the judges in matters relating to international law and on the experience of other international war crimes trials. The advisers will also act as observers, monitoring “the protection by the Tribunal of general due process of law standards.” In seeking such outside experts, the tribunal may ask for the assistance of the international community, including the United Nations. Non-Iraqis will also be assigned to work with the Investigating Judges to assist in the investigation and prosecution of cases and to monitor the protection of due process of law standards. The same requirement exists for the Prosecution Department. Legal defence teams for indictees must be led by an Iraqi, but non-Iraqi lawyers can be part of the team. No one who has been a member of the Ba’ath Party may hold any position in the tribunal. How will the tribunal be funded? The Statute provides that the tribunal’s expenses
will be covered by the Government of Iraq.
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