Iraqi Special Tribunal: Questions & Answers

On the basis of what authority was the tribunal established and what is its supervisory body?

The Statute of the Iraqi Special Tribunal was enacted directly by the Iraqi Governing Council on December 10, 2003. The then-U.S. Administrator for Iraq, Paul Bremer, temporarily ceded legislative authority to the Council for that purpose.

The Interim Government of Iraq has assumed all of the supervisory powers given under the Statute to the Governing Council.

Who will the tribunal try?

The Statute provides the tribunal with jurisdiction over Iraqi nationals or residents of Iraq.

It also includes the principle of command responsibility, according to which not only those who directly commit a crime, but those in the chain of command who order it to be carried out can be held responsible. It further specifies that no one shall have immunity from criminal responsibility, for instance because of any official position including head of state.

At this time, it is unclear how many individuals will be tried by the tribunal or how many trials will take place.

The Iraqi Special Tribunal has already conducted several trials. The following individuals were tried by the tribunal and sentenced to death. Their sentences have been carried out.

• Saddam Hussein – former president
• Barzan Ibrahim al-Hassan al-Tikriti – former presidential advisor
• Taha Yassin Ramadan al-Jizrawi – former vice-president
• Awad Hamed al-Bandar – former chief judge

The following individuals were tried by the tribunal and sentenced to death. Their sentences have not yet been carried out as these three former government offiicals face charges - along with 11 other officials - in another trial for their role in responding to a Shiite uprising after the Gulf War in 1991.

• Ali Hassan al-Majid – former presidential advisor
• Sultan Hashim Ahmed – former defense minister
• Hussein Rashid Mohammed – former deputy director of operations for the Iraqi armed forces

The following individuals have been tried and sentenced to life in prison.

• Saber Abd Al-Aziz Aldori
• Farhan Mutlaq Saleh

Several former high-ranking members of the former Ba ’ath regime have appeared before an Iraqi judge and await trial. They include:

• Abid Hamid Mahmud al-Tikriti – former presidential secretary
  
• Watban Ibrahim al-Hassan al-Tikriti – former presidential adviser
  
• Tariq Aziz – former deputy prime minister
  
• Muhammad Hamza al-Zubaydi – former member, Revolutionary Command Council
  
• Aziz Salih al-Numan – former head of Ba’ath party for western Baghdad
  
• Kamal Mustafa Abdullah al-Tikriti – former commander of the Republican Guard
  
• Sabid Abdul Aziz al-Douri – former mayor of Baghdad

What crimes can the tribunal prosecute?

The tribunal has jurisdiction over crimes against humanity, war crimes and genocide.

The tribunal also is able to prosecute three crimes under Iraqi law:

• Attempting to manipulate the judiciary
  
• Wasting national resources or squandering public assets and funds
  
• Abusing position and pursuing policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country

For the tribunal to have jurisdiction, these crimes must have been committed between July 17, 1968 – the date on which the Ba’ath party came to power in Iraq by a political coup in which Saddam Hussein played a leading role – and May 1, 2003 – the date President Bush declared that major combat operations in Iraq had ended.
It is not necessary for the crimes to have been committed on the territory of Iraq. The tribunal also has jurisdiction to prosecute crimes committed elsewhere by Iraqi nationals or residents of Iraq, such as during Iraq’s war against Iran (1980-1988) and its invasion and occupation of Kuwait (1990-1991).

Charges are likely to include atrocities committed against several ethnic groups within Iraq such as the violent repression of 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 violent 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.

How is the tribunal organized?

The Statute provides that the tribunal shall have one or more trial chambers, each with five judges. It also provides for an appeals chamber with nine judges, who shall select one of its members to be the president of the appeals chamber.

According to the Statute, the president of the appeals chamber shall serve as the president of the tribunal and will oversee its administration and finances. There also shall be an administration department.

The Statute further provides for up to 20 permanent investigative judges and up to 20 prosecutors.

Who are the judges?

The Statute provides that judges and investigative judges shall be persons of high moral character, impartiality and integrity.
According to the Statute, the authority to appoint judges and investigative judges resided with the Governing Council, and now rests with the Interim Government, which is required to consult on all appointments with a new Judicial Council.

In general, the Statute provides that judges and investigative judges shall be Iraqi nationals. It allows, however, for non-Iraqi judges with experience in dealing with crimes against humanity, genocide, war crimes and crimes under Iraqi law to be appointed if necessary.

The Statute further provides that a judge or investigative judge may not have been a member of the Ba’ath party.

How will crimes be investigated?

The Statute provides for a system of investigative judges, which is used in Iraq and common to legal systems with a civil law (as opposed to common law) tradition.

In this system, each investigative judge works independently to investigate individuals and gather evidence. If satisfied that a case exists, the investigative judge prepares an indictment. If this indictment is confirmed by the chief investigative judge, the accused may be brought to trial before the judges of the trial chamber.

A prosecutor, who is the individual that prosecutes the case at trial, may also be involved in the investigative stages.

Are due process rights guaranteed?

The Statute lists certain due process rights for all indictees including:

• Presumption of innocence
  
• Right to be informed promptly of charges
  
• Entitlement to a public hearing
  
• Right to a fair and impartial hearing
  
• Right to defend oneself or have a lawyer of one’s own choosing and to legal aid if one does not have sufficient means to pay for a lawyer
  
• Adequate time and facilities to prepare a defence and to communicate freely and in confidence with a lawyer
  
• Trial without undue delay
  
• Ability to challenge the evidence against oneself including raising defences and examining witnesses
  
• Right not to be compelled to testify against oneself or confess guilt, including the right to remain silent

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.

Can non-Iraqis play a role at the tribunal?

The Statute specifies that the judges, investigative judges, prosecutors and the director of the Administration Department shall 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 shall assist the judges in matters relating to international law and provide experience from other war crimes trials. These advisors also shall 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 must also be assigned to work with the investigative 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 Prosecutions 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 is the tribunal funded?

The Statute provides that the tribunal’s expenses shall be borne by the regular budget of the Government of Iraq.