The Statute of the Iraqi Special Tribunal for Crimes Against Humanity. Progressive or Regressive?

German Law Journal

Volumn 5, Issue 7, 2004, Pages 859-878

  Olusanya, Olaoluwa ^a,b  

^a UNIVERSITY OF THE WESTERN CAPE   (South Africa)

^b NATIONAL UNIVERSITY OF IRELAND   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 26844519085     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S207183220001289X     Document Type: Article

References (70)

1. M.M. DeGuzman, The Road from Rome: The Developing Law of Crimes against Humanity, 22.2 HUMAN RIGHTS QUARTERLY 335-403 (2000) at http://www.soc.umn.edu/~boyle/22.2deguzman.html (last visited May 2003) (at the dawn of the new millennium, the international community is proclaiming a renewed and invigorated commitment to international criminal justice).
2. B.B. Ferencz, Getting Aggressive about Preventing Aggression, THE BROWN JOURNAL OF WORLD AFFAIRS (1999) at http://www.iccnow.org/html/ferencz199907.html (last visited June 2003) (The subject of international criminal jurisdiction had been languishing on the U.N. agenda for almost fifty years while armed violence and human rights outrages continued to disgrace the human landscape. The availability of instantaneous reports of atrocities anywhere in the world sparked renewed demands by human rights activists for action to curb the publicized depravities. Small nations were apprehensive about tribunals created a la carte by the privileged States sitting on the Security Council. The General Assembly called for new committees to expedite the movement toward the creation of a permanent International Criminal Court. Prodded by the Assembly, the International Law Commission (ILC) finally concluded its 60 article draft Statute for an International Criminal Court in 1994).
3. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, U.N. Diplomatic Conf. of Plenipotentiaries on the Establishment of an Int'l Crim. Ct., U.N. Doc. A/CONF.183/9 (1998) reprinted in 37 I.L.M. 999 (1998).
4. For a comprehensive overview of the legislative history and Statute of the Yugoslav Tribunal, see J.C. O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AM. J. INT'L L. 639 (1993); see also SC Res. 827 (May 25, 1993) reprinted in 32 I.L.M. 1203 (1993); For Rwanda see SC Res. 955 (Nov. 8, 1994) reprinted in 33 I.L.M. 1602 (1994).
5. S.C. Res. 1315 (2000), 14 August 2000.
6. Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division) on 24 March 1999.
7. Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division) on 24 March 1999.
8. Harvard Research on International Law (Supp. 1935), Draft Convention on Jurisdiction with Respect to Crime 29 AM. J. INT'L L., 445.
9. K.C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988); M.C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 526 (Dordrecht 1992); RATNER & ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW 143 (Oxford 1997); Restatement Third of the Foreign Relations Law of the United States, 1987, § 404, Reporters' Note 1, 257.
10. K.C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988); M.C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 526 (Dordrecht 1992); RATNER & ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW 143 (Oxford 1997); Restatement Third of the Foreign Relations Law of the United States, 1987, § 404, Reporters' Note 1, 257.
11. K.C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785 (1988); M.C. BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 526 (Dordrecht 1992); RATNER & ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW 143 (Oxford 1997); Restatement Third of the Foreign Relations Law of the United States, 1987, § 404, Reporters' Note 1, 257.
12. Statute of the Iraqi Special Tribunal for Crimes against Humanity (ISTCH Statute), 10 December 2003.
13. Amnesty International, Iraq: Responsibilities of the Occupying Powers, AI Index: MDE14/089/2003 (April 2003).
14. For relevant literature see e.g. M.E. O'Connell, The Myth of Pre-emptive Self Defence, AM. SOCIETY OF INT'L L., TASK FORCE ON TERRORISM (2002).
15. Article 14(c) of the ISTCH Statute; see generally HIRO DILIP, THE LONGEST WAR: THE IRAN-IRAQ MILITARY CONFLICT (New York 1991).
16. Article 11 and Article 12 of the ISTCH Statute on Genocide and Crimes against Humanity respectively; See generally MIDDLE EAST WATCH, GENOCIDE IN IRAQ: THE ANFAL CAMPAIGN AGAINST THE KURDS (New York 1993).
17. Article 14(c) of the ISTCH Statute; see generally ICG, Iraq Backgrounder: What Lies Beneath, Middle East Report No. 6 (2002).
18. M. Bucknam & F. Esquivel, Saddam Hussein and the Iran-Iraq War, Paper submitted to the National Defence University National War College, available at http://www.ndu.edu/nwc/writing/AY01/5601/SeminarABestPaper5601.pdf (last visited January 2004).
19. D. Priest, Rumsfeld Visited Baghdad in 1984 to Reassure Iraqis, Document Show, WASHINGTON POST December 19, 2003 (Publicly, the United States maintained neutrality during the eight-year Iran-Iraq war, which began in 1980. Privately, however, the administrations of Reagan and George H.W. Bush sold military goods to Iraq, including poisonous chemicals and deadly biological agents, worked to stop the flow of weapons to Iran, and undertook discreet diplomatic initiatives, such as the two Rumsfeld trips to Baghdad, to improve relations with Hussein).
20. K. Nezan, When Our "Friend" Saddam Was Gassing the Kurds, LE MONDE DIPLOMATIQUE (trans. Barry Smerin, January-February 1998); however see C. Greenwood, Trying Saddam, THE GUARDIAN (December 17, 2003) available at www.guardian.co.uk/Iraq/Story/0%2C2763%2C1108631%2C00.html (last visited June 2004) (Exonerating the U.S. and U.K. from criminal responsibility for Saddam's atrocities against his own people by writing: "The suggestion that America and Britain were responsible for the crimes of which Saddam stands accused is nonsense - it was not America that ran the torture chambers or Britain that gassed Halabja").
21. K. Nezan, When Our "Friend" Saddam Was Gassing the Kurds, LE MONDE DIPLOMATIQUE (trans. Barry Smerin, January-February 1998); however see C. Greenwood, Trying Saddam, THE GUARDIAN (December 17, 2003) available at www.guardian.co.uk/Iraq/Story/0%2C2763%2C1108631%2C00.html (last visited June 2004) (Exonerating the U.S. and U.K. from criminal responsibility for Saddam's atrocities against his own people by writing: "The suggestion that America and Britain were responsible for the crimes of which Saddam stands accused is nonsense - it was not America that ran the torture chambers or Britain that gassed Halabja").
22. W. Elali, Dealing with Iraq's Foreign Indebtedness, 42(1) THUNDERBIRD INT'L BUS. REV. 67 (2000).
23. C. Bury, A Tortured Relationship U.S.-Iraq Relations, ABC News, 28 December 2003 (reporting on changes in U.S. policy towards Iraq).
24. P. PILLAR, TERRORISM AND U.S. FOREIGN POLICY 160 (2001).
25. President George W. Bush, Remarks by the President on Iraq in Cincinnati Ohio, Oct. 7, 2002 available at http://www.whitehouse.gov/news/releases/2002/10/20021007-8.html (last visited May 2004) (We know that Iraq and al Qaeda have had high-level contacts that go back a decade. Some al Qaeda leaders who fled Afghanistan went to Iraq. These include one very senior al Qaeda leader who received medical treatment in Baghdad this year, and who has been associated with planning for chemical and biological attacks. We've learned that Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases. And we know that after September the 11th, Saddam Hussein's regime gleefully celebrated the terrorist attacks on America); Iraq Liberation Act, Public Law 105-338, 1998; Authorization of the Use of Military Force Against Iraq, Public Law 107-243, 2002; however, see K.M. POLLACK, THE THREATENING STORM: THE CASE FOR INVADING IRAQ xxi-xxii (2002); see also Lord Alexander of Weedon Qc., Iraq: The Pax Americana and the Law, September 2003 available at http://www.justice.org.uk/images/pdfs/iraqpaxam.pdf (last visited January 2004). (criticizing the alleged link between Al-Qa'ida and Saddam by reference to the Report of the Intelligence and Security Committee, "Iraqi Weapons of Mass Destruction").
26. S.E. Miller, Iraqi Weapons of Mass Destruction, Report of the Intelligence and Security Committee, September 2003; American Academy of Arts and Sciences, Gambling on War: Force, Order and the Implications of Attacking Iraq, in WAR WITH IRAQ COSTS, CONSEQUENCES, AND ALTERNATIVES 2002 (listing the justifications for U.S. war against Iraq).
27. S.E. Miller, Iraqi Weapons of Mass Destruction, Report of the Intelligence and Security Committee, September 2003; American Academy of Arts and Sciences, Gambling on War: Force, Order and the Implications of Attacking Iraq, in WAR WITH IRAQ COSTS, CONSEQUENCES, AND ALTERNATIVES 2002 (listing the justifications for U.S. war against Iraq).
28. D.F. Orentlicher, Venues for Prosecuting Saddam Hussein: The Legal Framework, available at http://www.asil.org/insights/insigh124.htm (last visited June 2004).
29. A. Dworkin, Trying Saddam: The Options, available at http://www.crimesofwar.org/onnews/newssaddam.html - 32k (last visited June 2004).
30. See generally M.P. Scharf, The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 L. & CONTEMP. PROBS. 67 (Winter 2001).
31. S. Zunes, Saddam's Arrest Raises Troubling Questions, FOREIGN POLICY IN FOCUS (December, 2003).
32. Article 28 ISTCH Statute.
33. Article 7(n) ISTCH Statute.
34. A. Muktar, Wrangle Over Saddam Tribunal Begins, IRAQ TODAY, 22 December 2003 (In contrast to the special tribunal established in the former Yugoslavia and Rwanda, which were under UN auspices, the Iraqi tribunal would be "administered by Iraqi judiciary and no international experts would take part except as advisors).
35. Article 1(b) ISTCH Statute.
36. D. Shraga & R. Zacklin, The International Criminal Tribunal for the Former Yugoslavia, available at http://www.ejil.org/journal/Vol5/No3/art4.html (last visited January 2004).
37. Article 1 of the ICTR Statute.
38. Taguba Report, Part One, Findings of Fact, extracted from Sadat, N.L. (May 2004), International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces, AM. SOCIETY OF INT'L L. INSIGHTS available at http://www.asil.org/insights/insigh134.htm#author (last visited June 2004).
39. Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation, 1 (Feb. 2004), at http://www.cbsnews.com/htdocs/pdf/redcrossabuse.pdf [hereinafter ICRC Report] (last visited June 2004). The ICRC Report was based on allegations collected by the ICRC during its visits to places of internment of the Coalition Forces between March and November, 2003.
40. Article 1 ICTY Statute; However, the Rwanda Statute adopts an approach similar to that of the ISTCH Statute. This is because Article 7 of the ICTY Statute limits the temporal jurisdiction of the Tribunal. Its commencement date was fixed at 1 January 1994, its closing date at 31 December of that year.
41. Article 1 Statute of the Special Court for Sierra Leone.
42. C. Tomuschat, International Criminal Prosecution: The Precedent of Nuremberg Confirmed, 5 CLF Vols. 2-3, 242(1994).
43. Article 6(a) IMT Charter on Crimes Against Peace.
44. Article 1 ICTR Statute.
45. Article 1(b) ISTCH Statute.
46. See Articles 1(2) and (3) of the Statute of the Sierra Leone Special Court.
47. Article 10 ISTCH Statute.
48. Article 3 ICTR Statute.
49. Article 15 ISTCH Statute.
50. F. Harhoff, The Rwanda Tribunal a presentation of Some Legal Aspects, available at http://www.icrc.org/icrceng.nsf/cl⋯501ab412565ad00548ab2?OpenDocument (last visited December 2003).
51. Not retained at the draft stage when submitted to the United Nations General Assembly (E/447) because of their lack of permanence, political groups were included under protected groups in the ad hoc committee's draft document by a narrow majority (4 votes to 3; UN Off. Doc. E/794 of 24 May 1948 pp. 13-14). The reference to political groups was however again rejected in the final draft of the Assembly General's Sixth Committee (see in particular the commentaries of the Brazilian and Venezuelan representatives expressing their concern about the fact that only "permanent" groups were specified, A/C.6/SR 69, p. 5.
52. CIA. The World Fact Book-Iraq, available at http://www.cia.gov/cia/publications/factbook/geos/iz.html#People (last visited June 2004).
53. The International Criminal Tribunal for Rwanda stated that "an ethnic group is one whose members share a common language and culture; or a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including the perpetrators of the crimes (identification by others)" in the Kayishema case (Judgement, para. 98).
54. Article 12 ISTCH Statute.
55. Article 7 of the Rome Statute.
56. Prosecutor v. Kupreskic et al. Case No. IT-95-16, Decision of 14 January 2000.
57. Article II (c) of CCL. No. 10; Article 3 of the ICTR Statute and Article 5 of the ICTY Statute.
58. Article 13 ISTCH Statute.
59. Article 8 of the Rome Statute of the International Criminal Court.
60. Article 20 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind.
61. J. Allain, & J.R.W.D. Jones, A Patchwork of Norms: A Commentary on 1996 Draft Code of Crimes against the Peace and Security of Mankind, available at http://www.ejil.org/Journal/vol8/No1/art6.pdf (last visited December 2003).
62. Sub-Section 2.3.1.
63. Article 14 ISTCH Statute.
64. See generally P. Mclain, Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the use of force against Iraq, 13 DUKE J. OF COMP & INT'L L. 233 (June 2003).
65. Article 24 of the ISTCH Statute.
66. M.C. BASSIOUNI & P. MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 690 (1996).
67. See generally W.A. Schabas, Sentencing by International Tribunals: A Human Rights Approach. 7 DUKE J. OF COMP. & INT'L L. 461(December 1997).
68. Second Optional Protocol to the International Covenant on Civil and Political Rights Aimed at Abolition of the Death Penalty, adopted Dec. 29, 1989, G.A. Res. 44/128, (entered into force July 11, 1991).
69. Article 24 of the ICTY Statute and Article 23 ICTR Statute.
70. W.A. SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW, (2d ed 1997).