Iraq under the rule of Saddam Hussein witnessed extraordinarily serious human rights crimes. Human Rights Watch has documented genocide, crimes against humanity, and war crimes in its several investigative reports on Iraq over the years. But now that Saddam Hussein has been apprehended, the question has grown more urgent: how will the crimes of the past be prosecuted?
Human Rights Watch recommends that a mixed domestic-international tribunal should prosecute Saddam Hussein. Click here to read more about what that means.
Justice for past crimes in Iraq is essential. The victims and their families deserve nothing less. To bring the perpetrators to account for their crimes will help build respect for the rule of law in Iraq — an important part of reconstructing the country.
At the same time, any trial of Saddam Hussein and others accused of these crimes should respect the rights of those being tried, and should operate efficiently and effectively. This will help to ensure that the trials are seen as legitimate and credible in Iraq, in the region, and in the world.
This background paper talks about:
- Different Types of Tribunals — What Are the Options?
- Flaws in the New “Iraqi Special Tribunal”
- Why Human Rights Watch Favors a Mixed Domestic-International Tribunal
A very important question now facing Iraq, and the occupying powers in Iraq, is what kind of court should prosecute Saddam Hussein and others. There are basically three options:
- a national court, with Iraqi prosecutors and judges
- an international court formally established by the United Nations Security Council
- a mixed domestic-international court
The new International Criminal Court is not an option, in part because it cannot prosecute crimes committed before July 1, 2002. Most of the serious crimes in Iraq’s past were committed before then. But it’s important to note that the International Criminal Court (ICC) was created precisely for situations like this one: tyrannical rulers should be brought to justice for their crimes, but after they’ve fallen from power, they often leave behind a judicial system in shambles. The fact that the ICC now exists, with a chief prosecutor, judges, and investigators based in The Hague, may help to deter serious human rights crimes like the ones that Iraq has suffered.
When national authorities can hold fair and effective trials, that is generally the best option. The trials are more accessible to the victims and their families. National judges and prosecutors help create a feeling of “ownership” of the important process of accountability.
But traditionally, criminal trials in Iraq have been very brief proceedings, lasting only a few hours, or at most a few days. Indeed, sometimes people accused of committing crimes were thrown into prison without any trial at all, or even executed on the spot.
Iraqi jurists (judges, prosecutors, lawyers, and others in the judicial system) do not have the experience needed to conduct a trial that is as complicated as the trial of Saddam Hussein, and others accused of serious human rights crimes, is likely to be. For this reason, the new “Iraqi Special Tribunal for Crimes Against Humanity” gives a lot of cause for concern.
The international courts formally established by the United Nations Security Council, and the mixed domestic-international courts, have given international judges and prosecutors a lot of experience in trying very serious human rights crimes. This experience should not be wasted.
Following the genocides in Bosnia and Rwanda, the United Nations Security Council passed resolutions establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These courts are staffed primarily by international judges, prosecutors, and court personnel. For political and security reasons, they were located outside the countries where the crimes occurred — the ICTY is in The Hague and the ICTR is in Arusha, Tanzania. That has made the proceedings less accessible to victims, their families, and those in whose names the crimes were committed. These tribunals have generally performed capably, but they have been very expensive and trials have progressed slowly.
Members of the U.N. Security Council are not likely to create such a tribunal for Iraq. If the Security Council had done so several years ago, it might have sent a signal to the world, and to the Iraqi people, that such crimes would never be tolerated by the international community.
The main example of this type of tribunal so far is the Special Court for Sierra Leone (SCSL). The SCSL is run by both international and Sierra Leonean judges, prosecutors, and staff. They are examining serious violations of international humanitarian law, or the laws of war, committed after November 1996 in Sierra Leone’s horrific civil war. The SCSL is expected to try about twenty people, from all warring factions, who bear the greatest responsibility for such crimes. Trials will probably begin in early 2004.
In August 2002, the SCSL indicted then-president of Liberia, Charles Taylor, for his role in the Sierra Leone conflict. Taylor subsequently left office and fled to Nigeria, which has so far refused to hand him over to the SCSL.
About the Sierra Leone model
The SCSL started operations in July 2002 and has indicted thirteen people from all warring factions for war crimes, crimes against humanity, and other serious violations of international humanitarian law. Some key components of the SCSL are:
- The court is based in Freetown, Sierra Leone.
- The court was created by joint agreement between Sierra Leone and the United Nations.
- The Statute and Rules of Procedure and Evidence are based on international standards, and prohibit the death penalty as an option for punishment.
- All organs of the court are staffed by Sierra Leonean and international staff.
- The Trial Chamber is composed of two Sierra Leonean judges and one international judge. The Appeals Chamber is composed of two Sierra Leonean judges and three international judges.
- In the Office of the Prosecutor, approximately half of the investigations staff and one-third of the prosecution staff are Sierra Leonean.
- In the Defense Office, responsible for the management of legal representation to indigent accused, there are numerous Sierra Leoneans. Several defendants are represented by Sierra Leonean lawyers.
- Within the Registry, responsible for the overall administration and servicing of the Court, most of the administrative staff are Sierra Leonean.
- The U.N. Mission in Sierra Leone provides some security and other support.
- The court does not have Security Council Chapter VII enforcement powers to compel cooperation with the SCSL from other countries.
- The court is funded through voluntary contributions as opposed to mandatory assessed U.N. dues.
For Iraq, Human Rights Watch favors a mixed domestic-international tribunal, established by the United Nations. Click here to find out why.
The new “Iraqi Special Tribunal” is sometimes described as a mixed domestic-international tribunal, but this is not correct.
The “Iraqi Special Tribunal for Crimes Against Humanity” (Iraqi Special Tribunal) was created by the Iraqi Governing Council in December 2003. It is fundamentally different than the Special Court for Sierra Leone, discussed above. The SCSL was established by joint agreement between the government of Sierra Leone and the United Nations, while the Iraqi Governing Council established the Iraqi Special Tribunal under an occupation and without participation by the United Nations.
The Iraqi Special Tribunal does not provide for Iraqi and international judges and prosecutors to work together to try cases. Instead, all prosecutors and investigative judges are required to be Iraqi nationals. The law allows for the possibility of appointing non-Iraqi trial and appeals chamber judges, but only if the Iraqi Governing Council approves. The Iraqi Special Tribunal law also provides for some international advisors and monitors, but this is not comparable to appointing international judges and prosecutors with relevant expertise to work alongside Iraqi jurists.
The procedures for trials provided for in the Iraqi Special Tribunal law also have numerous problems. There is no requirement of proof beyond a reasonable doubt and the death penalty is permitted. The 1971 Iraqi criminal procedure law could be used, permitting the tribunal to use confessions obtained through “physical coercion” and to hold closed trials.
The Iraqi Governing Council issued the Iraqi Special Tribunal law without any opportunity for broad consultation or public comment. Human Rights Watch believes that the drafting of the tribunal law should have been transparent to help ensure a legitimate and credible accountability process.
Iraqi jurists and international specialists should work together to recommend the most appropriate form of a tribunal to try the most serious past crimes committed in Iraq. Human Rights Watch has recommended that the Iraqi Governing Council partner with the United Nations to form a mixed Iraqi-international Group of Experts. A mixed Group of Experts would allow Iraqi jurists to use existing international experience to develop a tribunal that will operate fairly and effectively.
Why Human Rights Watch Favors a Mixed Domestic-International Tribunal Established by the United Nations
Any tribunal prosecuting Saddam Hussein, or others accused of serious human rights crimes, must have the necessary expertise to try these crimes in accordance with international criminal, human rights, and humanitarian law. But such a tribunal should also have the participation of Iraqis, and be accessible to the Iraqi people.
The capacity of future domestic courts can be strengthened by having national staff working alongside internationals with expertise in prosecuting these types of cases. A mixed domestic-international tribunal in Iraq could leave a truly positive legacy.
A mixed domestic-international tribunal could hold trials in Iraq, use Arabic as its official language, and apply the relevant provisions of Iraqi law as well as international law. All of these elements would help to ensure the legitimacy and credibility of the tribunal’s proceedings.
A tribunal for serious past crimes in Iraq should not replicate exactly the Sierra Leone Special Court. The victims in Iraq are much more numerous: Human Rights Watch estimates that as many as 290,000 people were killed under the rule of Saddam Hussein. A tribunal for serious past crimes in Iraq should not be limited to only a handful of alleged perpetrators, or prosecute only those bearing the greatest responsibility, like the Sierra Leone Special Court.
The United Nations should be involved in the set-up and operation of the tribunal. A tribunal for Iraq should be funded by contributions required of all U.N. members or some other mandatory funding process, rather than relying on voluntary contributions from a small number of states. The decision to fund the SCSL through voluntary contributions has left it in a precarious financial predicament. It would also be preferable for a mixed tribunal for Iraq to be authorized by the Security Council. This would enable the Security Council to require cooperation with the tribunal from other countries. This will be important for compelling custody over persons outside Iraq.