Grotian Moment: The International War Crimes Trial Blog
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Basic Information about the Iraqi Special Tribunal

by Michael Scharf

What is the Iraqi Special Tribunal?

The Iraqi Special Tribunal (IST) is an independent judicial body established by the U.S.-appointed Iraqi Governing Council on December 10, 2003, and approved by the Iraqi Transitional National Assembly on August 11, 2005, to prosecute high level members of the former Iraqi regime who are alleged to have committed war crimes, crimes against humanity, genocide, and aggression. It is composed of two, five-person Trial Chambers, and a nine-person Appeals Chamber. The IST has been called an "internationalized domestic court" since its statute and rules of procedure are modeled upon the U.N. war crimes tribunals for the former Yugoslavia, Rwanda, and Sierra Leone, and its statute requires the IST to follow the precedent of the U.N. tribunals. Its judges and prosecutors are to be assisted by international experts. But it is not fully international, since its seat is Baghdad, its Prosecutor is Iraqi, and its bench is composed exclusively of Iraqi judges.

Why not an international court?

The Statute of the International Criminal Court (ICC) precludes that Court from trying cases that involved crimes committed prior to July 2002; most of Saddam Hussein's crimes were committed before that time. And creating a new U.N. ad hoc war crimes tribunal, like the tribunals for the former Yugoslavia and Rwanda, requires the approval of the U.N. Security Council. Several countries that wield a veto on the Council made it known that they would not vote for an ad hoc tribunal to try Saddam Hussein.

What is the status of Saddam Hussein's trial?

Saddam Hussein has been in U.S. custody near the Baghdad airport since being apprehended near his hometown of Tikrit in December 2003. In September 2005, Iraqi government officials announced that the trial of Saddam Hussein on charges related to the incident at the town of Dujail, would begin on October 19. However, this has not yet been confirmed by the officials of the Iraqi Special Tribunal (IST), which is completely independent of the Iraqi government. On several past occasions, Iraqi government officials have provided incorrect information about the status of the trial. Judges and prosecutors with the IST have said that they are nearly finished gathering evidence and witnesses to present at least a dozen cases against the former president and his top lieutenants for crimes against humanity, war crimes, and genocide.

What are the specific charges against Saddam Hussein?

Rather than join the defendants and offenses and hold a single, comprehensive trial like at Nuremberg, the IST has decided to proceed with a dozen mini-trials. The first case to be brought against Saddam Hussein involves his role in the 1982 execution of around 150 Iraqi civilians in Dujail, a predominantly Shiite town north of Baghdad, in response to a failed assassination attempt on Saddam. Several of his top deputies have also been charged in the massacre. Among other charges, Saddam Hussein stands accused of ordering the slaughter of some 5,000 Kurds with chemical gas in Halabja in 1988, killing or deporting more than 10,000 members of the Kurdish Barzani tribe in the 1980s, invading Kuwait in 1990, and drying rivers, killing hundreds of thousands of Marsh Arabs in response to their 1991 uprising.

Who else is being charged by the court?

In addition to Saddam, eleven high-ranking Iraqi officials are in custody awaiting indictments, including Abid Hamid al-Tikriti, a former presidential secretary, Ali Hassan al-Majid ("Chemical Ali"), Saddam's cousin and adviser, and Tariq Aziz, the former deputy prime minister.

Under which body of laws will they be tried?

The IST has jurisdiction over crimes committed in Iraq or abroad (e.g., in Iran or Kuwait) between 1968 and 2003 by former regime members. The IST's subject matter jurisdiction is comprised of a mix of international law crimes and domestic law crimes that existed prior to Saddam's ascension to power in 1968. The international law offenses are (1) war crimes, (2) the crime of aggression, and (3) the crime of genocide. The domestic law crimes are (1) manipulation of the judiciary; (2) wastage of national resources and squandering of public assets and funds; and (3) acts of aggression against an Arab country. The IST's procedural law is comprised of a mix of international law procedures set forth in the IST's Rules of Procedures, supplemented by the Rules of Procedure of the Iraqi Criminal Code. Traditional Islamic Law, "sharia," is not applied by the IST. The IST is empowered to imprison convicted persons for up to life or subject them to capital punishment.

What is the makeup of Saddam's legal team?

Saddam's legal team is led by Khalil Dulaimi, an Iraqi lawyer. It includes a number of distinguished defense counsel from across the globe, including former U.S. Attorney General Ramsey Clark. Some experts speculate that Saddam Hussein, who holds a law degree from Cairo University, may follow in the steps of Slobodan Milosevic and represent himself in court.

Who are the judges on the tribunal?

The IST is comprised of about fifty investigative, trial, and appellate judges, all of them native Iraqis mostly of Shiite or Kurdish ethnic origin. The IST Statute prohibits anyone from serving as a judge who was a member of the Baath party. Each judge was nominated and vetted by the Iraqi Governing Council with the assistance of the 20,000 member Iraqi Bar Association. Five judges will preside over each trial, and nine different judges will preside over each appeal. The names of most of the judges have not been disclosed for security reasons.

What is the U.S. role in the trial?

The IST, whose costs are covered by the new government of Iraq, was originally established with $75 million in U.S. funds. The United States established the "Regime Crimes Liaison Office" (RCLO) in Baghdad to help the IST with investigations, translation of legal materials, and training. RCLO is run by the U.S. Department of Justice, and has worked in partnership with international NGOs such as the International Bar Association (based in London), the International Legal Assistance Consortium (based in Stockholm), the International Association of Penal Law (based in Siracuse, Sicily), and an Academic Consortium (including Case Western Reserve University School of Law, William and Mary School of Law, and University of Connecticut School of Law).

Why has the tribunal taken two years to get off the ground?

Two years is about how long it took the U.N. created ad hoc tribunals to become fully operational. The IST investigative judges and prosecutors have spent the bulk of their time examining over two million documents, collecting testimony from some 7,000 witnesses, and reading reports by forensic experts from roughly 200 mass graves throughout Iraq. Meanwhile, the IST judges have been busy developing the Rules of Procedure and undergoing training in the specialized area of war crimes, crimes against humanity, and genocide.
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