Iraqi lawyer Qasem Hassan* explains the legal standing of Saddam Hussein's trial in light of Iraqi national laws On 10 December 2003, Paul Bremer, civil administrator of the Coalition Provisional Authority (CPA), issued Order 48 authorising the Iraqi Interim Governing Council (IGC) to establish an Iraqi Special Tribunal to try Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws. The authorisation was restricted by a number of terms and conditions that were listed in Section 2 of the order. It states, first, that the IGC must ensure it promulgates a description of the elements that will apply to the crimes listed in the statute establishing the Tribunal, and that these elements are consistent with Iraqi law -- as modified by CPA orders -- and international law. As one of the most important CPA modifications to Iraqi law was to suspend the death sentence, this inherently becomes a restriction on the sentences issued by the Tribunal. Order 48 also cited as a condition that the IGC should "ensure that the Tribunal meets, at a minimum, international standards of justice". Thirdly, it stated, "In the event that, prior to the final transfer of governance authority to the transitional Iraqi administration, a conflict arises between any promulgation by the Governing Council or any ruling or judgment by the Tribunal and any promulgation of the CPA, the promulgation of the CPA shall prevail." Finally, it stipulated that non-Iraqi nationals could be appointed as judges on the Special Tribunal. Following this authorisation, the IGC issued Law 1 of 2003, creating an Iraqi Special Tribunal for the prosecution of crimes against humanity. Comprised of 38 articles listed under 11 sections, the first and second sections address the establishment, organisation and the competence of the Tribunal. The Tribunal is to consist of one or more trial chambers, an appeals chamber empowered to review decisions of the trial chambers, a prosecutions department and an administrative department to provide administrative services to the judiciary chambers and the prosecutions department. These sections also detail the qualifications and selection or appointment of judges, prosecutors and heads of the administrative department. The third section of the statute pertains to the Tribunal's jurisdiction. Article 10 in Part I of this section states: "The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 to 14, committed since 17 July 1968 and up until 1 May 2003, in the territory of Iraq or elsewhere." It is noteworthy that this article -- a verbatim repetition of Article 1, Paragraph b -- conflicts with Article 1.2 of the Iraqi Criminal Procedure Law, which prohibits the retroactive application of laws unless their application is favourable to the accused. Although this principle is universally accepted and included in penal codes throughout the world, it is impossible to separate law from moral considerations. Therefore, even if domestic law does not criminalise the offenses listed in Articles 11 to 13 of the statute, it is possible to invoke international law and specifically those international conventions, to which Iraq is a signatory party, prohibiting the crimes listed in Articles 11 to 13. Indeed, that international law has authoritative force in this regard has precedents that date back before the creation of the International Criminal Court (ICC), ones that have been affirmed by many of the rulings issued by the International Court of Justice and by its advisory positions, such as the view it issued in the early 1950s on the Convention on the Prevention and Punishment of the Crime of Genocide. Articles 11 to 14 of the statute define and expound upon the general categories of crimes listed in Article 10, which are the crime of genocide, crimes against humanity, war crimes and violations of certain Iraqi laws. As Iraq is a signatory party to the International Convention against Genocide -- having ratified it on 20 January 1959 -- this will facilitate bringing to justice leaders of the former Iraqi regime on charges of this nature. So too will Article 15 of this section, which states: "The official position of any accused person, whether as president, prime minister, member of the cabinet, chairman or a member of the Revolutionary Command Council (RCC), a member of the Arab Socialist Baath Party regional command or government" shall not relieve any such person of criminal responsibility nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in Articles 11 to 14. The elimination of immunity is confirmed by Article 17, which states: "Subject to the provisions of this statute and the rules made thereunder, the general principles of criminal law applicable in connection with the prosecution and trial of any accused person shall be those contained: (i) in Iraqi criminal law as in 17 July 1968 for those offenses committed between 17 July 1968 and 14 December 1969; (ii) in Law Number 111 of 1969 (the Iraqi Criminal Code), as it was as of 15 December 1969, without regard to any amendments made thereafter, for those offenses committed between 15 December 1969 and 1 May 2003; and (iii) in Law Number 23 of 1971 (the Iraqi Criminal Procedure Law)." Point (i) revives the Baghdadi Criminal Code of 1919, which had been abolished by the former regime in 1969. The "amendments" to Law 111 of 1969 mentioned above refer specifically to that amendment promulgated by the RCC granting immunity to the president and the members of the RCC from prosecution for crimes listed in the Criminal Code. Some Arab legal experts argue that the amendment precludes the prosecution of Saddam Hussein and members of his regime before the Special Tribunal on the grounds that Iraqi law as modified under the former government is still standing and binding. However, such immunity still conflicts with the international penal principles governing the Tribunal, as well as with the principle of the compelling moral priority of international law over domestic law on matters pertaining to universal human rights conventions. Article 15 further stipulates that if a subordinate committed the crimes listed in the statute, this "does not relieve his superior of criminal responsibility if [the superior] knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to submit the matter to the competent authorities for investigation and prosecution." It should be added, however, that the liability of a superior over a subordinate is civil rather than criminal in nature, a principle that was applied in the proceedings of the International Criminal Tribunals created to investigate the crimes of genocide in former Yugoslavia. Section 7 deals with the processes of investigation and indictment, and with the rights of the accused. With regard to the latter, the statute reiterates the provisions of previous and current Iraqi law with regard to the right to an attorney, the right to be informed of the nature and substance of the charges, the right to adequate time and facilities to prepare a defence, the right to an open trial in the presence of the accused, and the right to summon witnesses in his defence and to examine witnesses brought against him. Perhaps the only guarantee not mentioned in previous Iraqi laws is the right "not to be compelled to testify against himself or to confess guilt, and to remain silent without such silence being a consideration in the determination of guilt or innocence." Several judges, prosecutors and investigative judges have already been appointed to the Tribunal, although their names have been kept confidential as a means to protect their safety. Each has been provided with a code number, used in all the correspondences between them. The only exception is the administrative director, whose name has been officially released: Salem Al-Chalabi. According to information leaked to the press, the Tribunal is having considerable difficulty gathering witnesses and evidence. To a large extent this has been attributed to the lack of expertise among the members of its judiciary, most of whom are young with no experience in criminal prosecution. The criteria for selecting most of the judges are quite loose. Article 5, Paragraph b does not require that candidates applying to act as permanent or reserve judges in the Trial Chambers must be serving judges. In addition, by not specifying a minimum age or a minimum period of practice -- as had been stipulated under previous Iraqi laws -- the new code allows for the nomination of lawyers and jurists with relatively poor legal knowledge, although it adds parenthetically that candidates must have the "necessary experience and qualifications". It is noteworthy that Bremer personally appointed several lawyers almost fresh out of law school to important judicial positions in Iraqi courts. In general, Statute 1 for 2003 creating the Special Tribunal is unique in that it is specifically tailored to render feasible the prosecution of crimes not listed in the Iraqi penal code. In addition, its procedural provisions differ somewhat from those stipulated under the current Iraqi Criminal Procedure Law and it permits for non-Iraqi lawyers to plead before the court. My first impression of the Tribunal, gleaned from proceedings for the indictment of Hussein, is that it is keen to work openly and by the book. The charges were read out to the former president, along with the stipulated rights of the accused, and the defendant was given sufficient time to address the court and demand clarification. However, the defendant seemed determined to condemn himself from the outset. Relinquishing his right not to testify against himself, he opened with an admission of having launched the invasion of Kuwait in response to an insult from Kuwaiti officials and he spoke at length on the subject of Halabja. Nevertheless, instead of recording the statements -- which could have been used against Hussein -- the investigative judge informed him that this would constitute a breach of procedure. Finally, the statute contains no preamble or introduction, clarifying the legal bases for this act of legislation or the moral considerations compelling the creation of a set of binding legal rules and principles for safeguarding certain values to which society is presumed to subscribe. * The writer is a Baghdad-based Iraqi lawyer.
