The 2005 revision of the Statute of the Iraqi Special Tribunal

Journal of International Criminal Justice

Volumn 5, Issue 2, 2007, Pages 287-293

  Mettraux, Guénaël ^a  

^a ICTY ^*

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EID: 34547106601     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm013     Document Type: Article

References (25)

1. Coalition Provisional Authority Order No 48: Delegation of Authority Regarding an Iraqi Tribunal, CPA/ORD/9 Dec 2003/48 (2003) (hereinafter, 'the original Statute').
2. Hereinafter, 'the amended Statute'. The Statute was subsequently published in the Official Gazette (on 18 October 2005).
3. Human Rights Watch. 'The Former Iraqi Government on Trial: A Human Rights Watch Briefing Paper', 16 October 2005 (hereinafter, 'HRW, Report'), at 4.
4. Original Statute, Art. 4(d).
5. Compare original Statute, Art. 4(d) and amended Statute, Art. 3(5). See also HRW, Report, at 6.
6. Compare original Statute, Art. 7(n) and Art. 8(j), and amended Statute, Art. 8(9) and Art. 9(7).
7. The appointment of 'international' judges in the war crimes and organized crimes section of the State Court of Bosnia and Herzegovina has, thus, generally been regarded as an important contributing factor to building trust into the judicial system ot Bosnia and Herzegovina.
8. Art. 5(f)(2). The decision to disqualify the President of the Tribunal was to be taken by the Governing Council or the Iraqi government (Art. 5(f)(3)).
9. See Art. 4(5) and Art. 6.
10. Art. 4(4) reads as follows: 'The Presidency Council, upon a recommendation from the Council of Ministers, may transfer judges and prosecutors from the Tribunal to the Supreme Judicial Council for any reason.' According to Art. 4(3), the Supreme Judicial Council is competent to nominate judges and prosecutors to the Tribunal.
11. See Press Release of Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 3 January 2007 ('Tragic Mistakes Made in the Trial and Execution of Saddam Hussein Must not be Repeated'), calling for this provision to be amended to eliminate the Government's powers to remove a judge 'for any reason'. For a detailed description of the use that has already been made of those provisions, see also Human Rights Watch's report 'Judging Dujail: The First Trial before the Iraqi High Tribunal', Vol. 18, No. 9(E), November 2006 (hereinafter, 'HRW, Dujail'), at 37-43.
12. Compare Art. 20(d)(4) of the original Statute and Art. 19(4)(E) of the amended Statute.
13. Compare Art. 23(b) of the original Statute and Art. 23(2) of the amended Statute.
14. Original Statute, Art. 27.
15. The Republic of Iraq is a party to the International Covenant on Civil and Political Rights ('ICCPR') since 1976. Pursuant to Art. 6(4) of the ICCPR, 'anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.' Art. 72(h) of the Iraqi Constitution provides that the President of the Republic should ratify death sentences before they are implemented. It should be noted, however, that Art. 70(A) of the 2005 Constitution provided that the general power of the President of the Republic to issue special pardons did not apply, inter alia, to international crimes or acts of terrorism. By contrast, Art. 57(m) of the 1990 interim Constitution provided that the President had the power of issuing special amnesty and ratifying judgments of capital punishment.
16. Art. 27(2). Human Rights Watch has suggested that the Statute's blanket prohibition on amnesty and commutation appears to infringe upon the constitutional authority of the president of Iraq (see HRW, Dujail at 87).
17. The Charter of the International Military Tribunal was altered prior to trial when a discrepancy was discovered between the Russian text of Art. 6(c) of the Charter and the English and French versions of that provision. See, generally, E. Schwelb, 'Crimes Against Humanity', 23 British Year Book of International Law (1946) 178, at 194.
18. The Tokyo Charter was amended in such a way as to remove from the definition of 'crimes against humanity' the expression 'against any civilian population' which had appeared in the original version of the Charter and in the text of the Nuremberg Charter. The basis for this amendment appears to have been the desire of the Prosecution to pursue a new, and all-encompassing, theory of the legality of killing in armed conflicts. According to that view, the Prosecution alleged in the indictment that 'murders' as war crimes and crimes against humanity were not limited to the intentional killing of non-combatants, but also included the killing of combatants during military operations where the opening of hostilities had been unlawful. In such a case, the Prosecution argued, the Japanese could not acquire the rights of lawful belligerents and any killing of civilians or combatants committed in the context of such conflict would, ipso facto, be contrary to the laws of war and thus constitute a crime. Fortunately for its legacy, the Tribunal rejected that theory and thus nullified any possible prejudice that might have resulted from the amendment of the Charter. See B. Röling and A. Cassese, The Tokyo Trial and Beyond - Reflections of a Peacemonger (Oxford: Polity Press, 1993), at 56-57
19. and History of the United Nations War Crimes Commission and the Development of the Laws of War, compiled by The United Nations War Crimes Commission (London: His Majesty's Stationery Office, 1948), at 205-207.
20. Motion on Jurisdiction on the International Military Tribunal for the Far East, 11 May 1946, Part I (MacMillan Brown Archives, MB1549, Box 196, Motions presented to the Tribunal).
21. See Rule 6(D) of the ICTY's Rule of Procedure and Evidence.
22. Attached to the amended Statute are 'Justifying Reasons' for the new law. It reads as follows: 'To expose the crimes committed in Iraq from 17 July 1968 until 1 May 2005 [sic; probably, 2003] against the Ira qi people and the peoples of the region and the subsequent brutal massacres: To lay down the rules and punishments to condemn after a fair trial the perpetrators of such crimes for waging wars, genocide and crimes against humanity; To establish a national Supreme Iraqi Criminal Tribunal made up of Iraqi judges with high experience, competence and integrity, with the power to try these criminals. To reveal the truth, and the agonies and injustice caused by the perpetrators of such crimes; To protect the rights of many Iraqis, redress injustices committed against them, and demonstrate heaven's justice as the Almighty God wants it to be. This law has been promulgated.'
23. A Human Rights Watch report recounts the process in those terms: 'on the first occasion, the law [passed by the Transitional National Assembly] was passed in August 2005, it was a nullity because of a failure to follow a parliamentary procedure - namely, it had not been reviewed by the State Consultative Council (Majlis Shura at-Dawla). In September 2005, the Transitional National Assembly voted on further amendments to the law after the draft had been re-examined by the Shura Council, and adopted it.' See HRW, Report, at 3-4, in particular footnote 8.
24. HRW, Dujail, at 42.
25. See, generally, M. Bohlander, 'Can the Iraqi Special Tribunal Sentence Saddam Hussein to Death?', 3 Journal of International Criminal Justice (2005) 463.