Hostname: page-component-8448b6f56d-gtxcr Total loading time: 0 Render date: 2024-04-23T22:56:54.808Z Has data issue: false hasContentIssue false

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

Published online by Cambridge University Press:  06 March 2019

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

The global effort to establish an effective system of international justice is at an important phase in its history. After close to 50 years of relative stagnation following the Nuremberg trials at the end of World War II, the field of international criminal law has been revitalised. The establishment of the International Criminal Court, the ad hoc tribunals for the former Yugoslavia and for Rwanda, “hybrid” or “internationalised” processes such as the Special Court in Sierra Leone, and national criminal justice systems exercising universal jurisdiction, have all lent substance and credibility to the assertion that the most grievous human rights crimes are subject to international scrutiny and legal action.

Type
European & International Law
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 DeGuzman, M.M., 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).Google Scholar

2 Ferencz, B.B., 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).Google Scholar

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).Google Scholar

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).Google Scholar

5 S.C. Res. 1315 (2000), 14 August 2000.Google Scholar

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.Google Scholar

7 Harvard Research on International Law (Supp. 1935), Draft Convention on Jurisdiction with Respect to Crime 29 Am. J. Int'l L., 445.Google Scholar

8 Randall, K.C., 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.Google Scholar

9 Statute of the Iraqi Special Tribunal for Crimes against Humanity (ISTCH Statute), 10 December 2003.Google Scholar

10 Amnesty International, Iraq: Responsibilities of the Occupying Powers, AI Index: MDE14/089/2003 (April 2003).Google Scholar

11 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).Google Scholar

12 Supra note 3; supra note 4; supra note 5.Google Scholar

13 Article 14(c) of the ISTCH Statute; see generally Hiro Dilip, The Longest War: the Iran-Iraq Military Conflict (New York 1991).Google Scholar

14 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).Google Scholar

15 Article 14(c) of the ISTCH Statute; see generally ICG, Iraq Backgrounder: What Lies Beneath, Middle East Report No. 6 (2002).Google Scholar

16 ISTCH Statute, supra note 14 (Presumably Iraq's culpability would fall under “the pursuit of policies that may lead to the threat of war”).Google Scholar

17 Bucknam, M. & Esquivel, F., 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).Google Scholar

18 Priest, D., 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).Google Scholar

19 Nezan, K., 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”).Google Scholar

20 Nezan, K., supra note 23.Google Scholar

21 Elali, W., Dealing with Iraq's Foreign Indebtedness, 42(1) Thunderbird Int'l Bus. Rev. 67 (2000).Google Scholar

22 Backgrounder, Iraq, supra note 15, at 6.Google Scholar

23 Bury, C., A Tortured Relationship U.S.-Iraq Relations, ABC News, 28 December 2003 (reporting on changes in U.S. policy towards Iraq).Google Scholar

24 Pillar, P., Terrorism and U.S. Foreign Policy 160 (2001).Google Scholar

25 President Bush, George W., 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”).Google Scholar

26 Miller, S.E., 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).Google Scholar

27 Orentlicher, D.F., Venues for Prosecuting Saddam Hussein: The Legal Framework, available at http://www.asil.org/insights/insigh124.htm (last visited June 2004).Google Scholar

28 A. Dworkin, Trying Saddam: The Options, available at http://www.crimesofwar.org/onnews/newssaddam.html – 32k (last visited June 2004).Google Scholar

29 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).Google Scholar

30 Zunes, S., Saddam's Arrest Raises Troubling Questions, Foreign Policy in Focus (December, 2003)‥Google Scholar

32 Article 28 ISTCH Statute.Google Scholar

33 Article 7(n) ISTCH Statute.Google Scholar

34 Muktar, A., 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).Google Scholar

35 Dworkin, , supra note 28.Google Scholar

36 Article 1(b) ISTCH Statute.Google Scholar

37 Shraga, D. & Zacklin, R., The International Criminal Tribunal for the Former Yugoslavia, available at http://www.ejil.org/journal/Vol5/No3/art4.html (last visited January 2004).Google Scholar

38 Article 1 of the ICTR Statute.Google Scholar

39 Bucknam, & Esquivel, , supra note 17, at 3.Google Scholar

40 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).Google Scholar

41 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.Google Scholar

42 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. See D. Shraga & R. Zacklin, supra note 37.Google Scholar

43 Article 1 Statute of the Special Court for Sierra Leone.Google Scholar

44 Tomuschat, C., International Criminal Prosecution: The Precedent of Nuremberg Confirmed, 5 CLF Vols. 2-3, 242(1994).Google Scholar

45 Shraga, D. & Zacklin, R., The International Criminal Tribunal for the Former Yugoslavia, supra note 37.Google Scholar

46 Article 6(a) IMT Charter on Crimes Against Peace.Google Scholar

47 Article 1 ICTR Statute.Google Scholar

48 Article 1(b) ISTCH Statute.Google Scholar

49 See Articles 1(2) and (3) of the Statute of the Sierra Leone Special Court.Google Scholar

50 Article 10 ISTCH Statute.Google Scholar

51 Article 3 ICTR Statute.Google Scholar

52 Article 15 ISTCH Statute.Google Scholar

53 Harhoff, F., The Rwanda Tribunal a presentation of Some Legal Aspects, available at http://www.icrc.org/icrceng.nsf/cl…501ab412565ad00548ab2?OpenDocument (last visited December 2003).Google Scholar

54 Supra note 14; supra note 19.Google Scholar

55 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. 1314). 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.Google Scholar

56 CIA. The World Fact Book-Iraq, available at http://www.cia.gov/cia/publications/factbook/geos/iz.html#People (last visited June 2004).Google Scholar

58 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).Google Scholar

59 Article 12 ISTCH Statute.Google Scholar

60 Article 7 of the Rome Statute.Google Scholar

61 Prosecutor v. Kupreskic et al. Case No. IT-95-16, Decision of 14 January 2000.Google Scholar

62 Id. at 579-580.Google Scholar

63 Article II (c) of CCL. No. 10; Article 3 of the ICTR Statute and Article 5 of the ICTY Statute.Google Scholar

64 Article 13 ISTCH Statute.Google Scholar

65 Article 8 of the Rome Statute of the International Criminal Court.Google Scholar

66 Article 20 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind.Google Scholar

67 Allain, J., & 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).Google Scholar

68 Sub-Section 2.3.1.Google Scholar

69 Article 14 ISTCH Statute.Google Scholar

70 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).Google Scholar

71 Article 24 of the ISTCH Statute.Google Scholar

73 Bassiouni, M.C. & Manikas, P., The Law of the International Criminal Tribunal for the Former Yugoslavia 690 (1996).Google Scholar

74 See generally W.A. Schabas, Sentencing by International Tribunals: A Human Rights Approach. 7 Duke J. of Comp. & Int'l L. 461(December 1997).Google Scholar

75 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).Google Scholar

76 See generally Schabas, supra note 74.Google Scholar

77 Article 24 of the ICTY Statute and Article 23 ICTR Statute.Google Scholar

78 W.A. Schabas, The Abolition of the Death Penalty in International Law, (2d ed 1997).Google Scholar