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I. Summary

This briefing paper was completed on October 17, 2005. At the time of writing, the new law governing the Supreme Iraqi Criminal Tribunal (formerly known as the Iraqi Special Tribunal) had been passed by the Transitional National Assembly and ratified by the Presidency Council, and is awaiting promulgation in the Official Gazette in order to come into force. Human Rights Watch understands that the promulgation of the new law is only a matter of time.

The analysis in this document reflects the provisions of the soon-to-be effective new law and is released now due to the imminence of the trial’s commencement. However, the concerns about fair trial issues expressed by Human Rights Watch in this briefing paper apply with equal force to the pre-existing law governing the Iraqi Special Tribunal.¹

On October 19, 2005, the first trial of members of the former Ba’thist government of Iraq—including former President Saddam Hussein—is expected to commence.  The trial, and those that follow after it, will present Iraqi authorities with an unprecedented opportunity to provide some measure of truth and justice for the hundreds of thousands of victims of grave human rights violations that occurred in Iraq between 1979 and 2003.  At the same time, the trials need to be fair and be seen to be fair.  While this is true of all trials, it is particularly true in Iraq given the high profile of the trials and the intensely politicized environment in which they will take place—like those at Nuremburg after the Second World War, the trials will be subject to intense scrutiny for years to come.

Success will not be easy. The extent of the crimes committed under Saddam Hussein— genocide, crimes against humanity and war crimes²—means that any legitimate process is complex and requires substantial time and money.  There will be novel issues.

The Supreme Iraqi Criminal Tribunal (SICT) (formerly known as the Iraqi Special Tribunal or IST) will be applying a mixture of international law and domestic criminal law within a very recently reconstituted national legal system.  This has important positive aspects: locating international criminal trials within the affected country is one way of making international justice mechanisms more responsive to the needs and interests of victims and the affected society.  However, it also carries dangers: localization cannot come at the expense of fundamental fair trial rights or the consistent application of international criminal law. 

Human Rights Watch has long called for the prosecution of senior figures in the former government, including Saddam Hussein, and has been instrumental in documenting some of the worst atrocities committed under his regime.  It therefore welcomes efforts to investigate and prosecute former Iraqi leaders.  However, the evolution of the SICT over the last two-and-a-half years has given rise to serious concerns about its capacity to conduct trials that are fair, and perceived among the Iraqi population to be fair. 

This briefing describes how the SICT will work. It also identifies deficiencies in the SICT which, if not addressed, could jeopardize fair trial rights and undercut the legitimacy of the proceedings. Areas of particular concern identified here include:

• An inappropriate standard of proof and inadequate protections against self-incrimination;
• Inadequate procedural and substantive steps to ensure an adequate defense;
• Concerns that the SICT may not appear to be impartial and independent.

A further aspect in which Human Rights Watch finds the SICT deficient and is of grave concern is the widespread application of the death penalty without any possibility of clemency, and the requirement to execute a convicted person within 30 days of a final decision.