Recent news articles about prospects for trials at the Iraqi Special Tribunal raise disturbing questions about the Iraq Interim Government's commitment to fair trials for senior Ba'ath party officials. Many such concerns were raised in a letter Human Rights Watch sent to Prime Minister Allawi on September 24, 2004.
September 24, 2004
Mr. Ayad Allawi
Prime Minister
Iraq
Dear Prime Minister Allawi,
We are writing to you concerning the Iraqi Special Tribunal (IST or Special Tribunal). Over the years, Human Rights Watch has extensively documented human rights violations in Iraq, conducting numerous interviews, engaging in forensic exhumations and research missions, publishing reports, and pressing for justice for these crimes. We played a particularly active role in documenting crimes committed as part of the Anfal campaign. In 1992, we obtained and analyzed eighteen metric tons of Iraqi state documents and in 1994 and 1995, we urged states to bring a case against Iraq for genocide.
Human Rights Watch believes that accountability for serious past crimes in Iraq is essential to bring justice to the victims, to punish the perpetrators, and to build respect for the rule of law. However, trials of the former Ba’ath Party leadership for serious past crimes must be conducted fairly and effectively before a tribunal that is independent and impartial. We are aware that the Iraqi Interim Government may be contemplating amending the statute establishing the Special Tribunal (Statute). We urge you to take this opportunity to amend the Statute to adequately draw on international expertise and to comply with international fair trial standards. We believe that such changes are crucial to making the trials of the former Ba’ath Party leadership legitimate and credible.
The Statute contains a number of provisions that are in accordance with international standards, including some protections of rights of the accused and definitions of crimes that are largely consistent with international criminal and humanitarian law. However, we are greatly concerned that the Statute discards fundamental international fair trial guarantees and fails to require sufficient experience by judges and prosecutors, including the appointment of some international experts to serve as judges and prosecutors. Human Rights Watch believes that some of the flaws in the Statute are so serious that trials before the IST may lack credibility and legitimacy. We also have had concerns as to whether the establishment of the IST by the Interim Governing Council acting at the delegation of the Coalition Provisional Authority is compatible with international law.
Below we detail key shortcomings with the Statute which reflect a distillation of our most serious concerns that are not addressed in the draft of the Iraqi Special Tribunal Provisional Rules of Procedure and Evidence provided to Human Rights Watch by Mr. Salem Chalabi on June 5, 2004. We submitted comments on these rules to Mr. Chalabi on July 2, 2004, which we enclose. The key shortcomings of the Statute that we discuss may be summarized as:
* Inadequate requirements of sufficient experience for persons serving as judges and prosecutors.
* Exclusion of international investigative judges and prosecutors from serving on the IST.
* Inadequate protections of the rights of the accused at early stages of investigation and questioning.
* Absence of a requirement that the accused must be competent to stand trial.
* Lack of explicit requirement that guilt must be proven beyond a reasonable doubt to convict.
* Absence of prohibition on trials in absentia.
* Lack of prohibition on imposition of the death penalty.
* Reliance on Iraqi criminal law where it may not be compatible with international standards.
* Inadequate requirements that judges and prosecutors must act impartially and independently.
* Inclusion of requirement that defendants must be Iraqi nationals.
* Inclusion of offenses that are not serious crimes under the court’s jurisdiction.
* Blanket exclusion of Ba’ath Party members from working at the IST.
Most of our concerns with the Statute were detailed in depth in a public memorandum Human Rights Watch issued to the Interim Governing Council on December 16, 2003, which we also enclose. Human Rights Watch has and may continue to provide comments on the Statute, the Rules of Procedure and Evidence, and other issues related to the establishment of the Special Tribunal. However, such comments are not intended to indicate that we support the Special Tribunal.
Adequate Experience and International Expertise
Trials for genocide, war crimes, and crimes against humanity are likely to be extremely complicated. This is due, among other reasons, to the systematic nature of many of these crimes, involving numerous perpetrators, vast numbers of victims, and many different underlying crimes.
The ability of investigative judges to conduct investigations that assemble the necessary evidence to establish criminal responsibility will profoundly affect whether or not those who are responsible for the crimes are identified, charged, and convicted after a fair trial, and whether their grievous crimes are exposed. The capacity of Trial Chamber judges to examine witnesses and manage the courtroom and for Trial and Appeals Chamber judges to assess evidence and apply the relevant law will be crucial in ensuring that the proceedings are efficient and fair. The ability of prosecutors to mount a focused prosecution strategy will be crucial to the effectiveness of the trials, as failure to develop such strategies can hinder prosecution of important suspects when scarce resources are expended on less significant cases.
Accordingly, it is essential that Trial and Appeals Chamber judges, investigative judges, and prosecutors have relevant experience to conduct these trials. There are no requirements in the Statute that at least some:
* judges appointed to each Trial Chamber and the Appeals Chamber have experience adjudicating complex criminal trials and cases involving international humanitarian, human rights, and criminal law;
* investigative judges have experience conducting complex criminal investigations and investigations in cases involving international humanitarian, human rights, and criminal law; and
* prosecutors have experience prosecuting complex criminal cases and cases involving international human rights, humanitarian, and criminal law.
The Statute also requires that investigative judges and prosecutors must be Iraqi nationals without exception under Article 28, and that judges appointed to the Trial and Appeals Chambers must be Iraqi nationals unless the Interim Governing Council or the successor government deems it necessary to appoint non-Iraqi judges under Articles 28 and 4(d). Criminal trials in Iraq traditionally have involved only brief proceedings, lasting anywhere from a few hours to a few days. Moreover, the isolation of Iraqi jurists from the outside world during Ba’ath Party rule restricted access to jurisprudence and practice on international criminal and humanitarian law that has emerged. At the same time, international judges and prosecutors have gained experience working on cases involving serious crimes through efforts to bring those responsible for the worst human rights violations to justice in the former Yugoslavia, Rwanda, and Sierra Leone.
Human Rights Watch believes that exclusion of international judges and prosecutors deprives the Iraqi Special Tribunal of the considerable expertise obtained by the international community over the past decade. Human Rights Watch believes that international experts should be appointed as Trial and Appeals Chamber judges, investigative judges, and prosecutors to work alongside Iraqis at the Special Tribunal. Human Rights Watch believes that international appointments should be made in collaboration with the United Nations, which should recommend a pool of appropriate candidates.
Allowing non-Iraqi nationals to serve as judges and prosecutors on the Iraqi Special Tribunal would not cede ownership over the tribunal to outsiders. Instead, such participation would complement the knowledge and expertise of Iraqi professionals to ensure that the accountability process achieves its desired objectives. The sharing of expertise between Iraqi and international professionals also would enhance the capacity of the Iraqi justice system more generally. Furthermore, a partnership between the international community and the Iraqi Interim Government to try these cases would contribute to ensuring that the IST can avoid becoming politicized within Iraq.
We note that the Statute mandates that non-Iraqi nationals be appointed “to act in advisory capacities or as observers” for the Chambers and investigative judges under Articles 6(b) and 7(n) and to assist prosecutors and monitor the performance of the prosecutor under Article 8(j). Advisors and observers
can play an important role in supporting the work of the Special Tribunal, but they are no substitute for appointing judges and prosecutors with relevant experience to share responsibility for adjudicating and investigating these cases.
Rights of the accused
Trials for serious crimes are likely to be highly charged and to elicit powerful emotions. As a result, every precaution to ensure the rights of the accused must be taken from the earliest moment to safeguard the fairness of the proceedings. As discussed below, the Statute does not ensure comprehensive fair trials rights and endangers protection of the rights of the accused.
1. Protections during Investigation and Questioning
The Statute provides only limited explicit protections at the early stages of investigation and fails to provide the accused with the following rights:
* to be informed that there are grounds to believe that the suspect committed a crime under the jurisdiction of the IST prior to questioning, where no arrest warrant has been issued;
* to remain silent without such silence being considered an indication of guilt during questioning; and
* not to be compelled to incriminate one’s self or to confess guilt during questioning.
There is also no prohibition against coercion, duress, threat, torture, or any other form of cruel, inhuman, or
degrading treatment or punishment, nor a categorical prohibition on the use of evidence obtained under
such circumstances.
2. Capacity to Stand Trial
There is no requirement that the accused be fit to stand trial. Human Rights Watch believes that if there are questions as to the mental capacity of the accused, he or she should be evaluated by an impartial, independent psychological expert to ensure that the accused is fit to stand trial. If the accused is not fit to stand trial, Human Rights Watch believes that the trial should not proceed, as doing so would compromise the ability of an accused to exercise his or her rights under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), including the rights to defend oneself through counsel of choice and to examine witnesses.
3. Proof Beyond a Reasonable Doubt
There is no explicit requirement that guilt must be proven beyond a reasonable doubt. While the ICCPR does not explicitly state that guilt must be proven beyond a reasonable doubt, the U.N. Human Rights Committee has stated in its General Comment to Article 14(7) of the ICCPR that “[b]y reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt.” The Rome Statute establishing the International Criminal Court (ICC) similarly requires under Article 66(3) that “the Court must be convinced of the guilt of the accused beyond reasonable doubt.”
4. Trials in Absentia
It is unclear from the Statute whether trials in absentia are permitted. While here is no absolute prohibition on trials in absentia under international law,Human Rights Watch believes that such trials compromise the ability of an accused to exercise his or her rights under Article 14 of the ICCPR, including the rights to be present during the trial, to defend oneself through counsel of choice, and to examine witnesses. The Rome Statute, under Article 63, explicitly prohibits trials in absentia at the ICC.
5. Death Penalty
There is no prohibition of the death penalty. Article 24(a) states that the penalties for offenses “shall be those prescribed by Iraqi law,” and Iraqi law permits the death penalty to be imposed as punishment for certain offenses, such as murder and rape.1 We are aware that there may be a strong opinion in support of the death penalty in Iraq. However, permitting the death penalty will undermine the credibility of the Special Tribunal.
Human Rights Watch opposes the death penalty in all circumstances due to its inherent cruelty. International human rights law, as codified in Article 6 of the ICCPR, favors the abolition of capital punishment. Many states are opposed to the death penalty, and international or mixed international-national criminal courts, such as the ICC and the tribunals for the former Yugoslavia and Rwanda, do not permit imposition of the death penalty to punish war criminals, providing another clear indication of the international community’s rejection of capital punishment in all cases.
We believe the death penalty is inherently cruel and that the Special Tribunal should make a clear break from the past regime by refusing to apply such a vengeful punishment. Trials before the Special Tribunal are by definition a major opportunity for the new Iraqi leadership to start working on this issue and to join an important abolitionist trend around the world.
We also believe that as a practical matter it will hamper the assistance that countries (particularly members of the European Union, who are united in opposing the death penalty) will be willing to offer to the tribunal, both in terms of personnel and monetary support. We are already aware of several instances where teams from European countries refused to facilitate mass grave excavations due to their concerns that the death penalty could be imposed for perpetrators involved, and we believe it is already a concern
for such countries regarding the tribunal.
6. Reliance on Iraqi Criminal Law
Article 17(a) of the Statute provides that the IST will apply the general principles of criminal law contained in Iraqi criminal law as of 1968, the Iraq Criminal Code of 1969, and the Criminal Procedure Code of 1971, subject to the “provisions of this Statute and the rules made thereunder.” Article 17(b) of the Statute provides that the Trial and Appeals Chamber “may resort to the relevant decisions of international courts or tribunals as persuasive authority for their decisions.” (Emphasis added) Iraqi criminal law does not adequately ensure protection of the rights of accused. Among the provisions of concern in Iraq’s Criminal Procedure Code of 1971 are:
* Confessions obtained through physical coercion are admissible, “if there is no causal link between the coercion and the confession or if the confession is corroborated by other evidence which convinces the court that it is true or which has led to uncovering a certain truth,” (para. 218);
* Counsel may be excluded during questioning of a suspect during an investigation if the magistrate or the investigator determines that “the matter in hand so requires,” (para. 57(A)); and
* Proceedings may be closed to the public if “the court decides that all or part should be held in secret for reasons of security or maintaining decency,” (para. 152).
Reliance on Iraqi criminal law and criminal codes renders Article 17 of the Statute insufficient to ensure that trials are held in accordance with international standards. Reliance on this law could open the door to abuse and violations of the rights of the accused. The Statute should require that the general principles of criminal law, individual criminal responsibility, command responsibility, and liability for punishment should be determined in accordance with the jurisprudence, statutes, and rules of procedure and evidence from international and mixed international-national criminal tribunals.
Impartiality, independence, and high moral character of prosecutors and/or judges
The impartiality, independence, and integrity of judges and prosecutors are essential to a fair trial. Independence of judges and prosecutors requires that they must operate independently from the government or other authorities such as those of an occupying power, individuals, public opinion, the media, foreign countries, or international institutions. Impartiality requires that judges and prosecutors apply the law equally to all, not adversely discriminate on any ground, including nationality, ethnicity, religion, political views, or other beliefs, and not participate in any case where they are unable to be impartial.
These principles are not comprehensively incorporated into the Statute. There is no requirement that prosecutors should be disqualified from participating in any case in which their impartiality and independence might be reasonably doubted on any ground. There is no requirement that prosecutors must be persons of high moral character. Similarly, there is no requirement that a decision to remove the IST president, which may be taken by the Interim Governing Council or the successor government under Article 5(f)(3), may only be taken upon the recommendation of a majority of the permanent judges.
Jurisdiction
There is a requirement under Article 1(b) that defendants must be Iraqi nationals or residents of Iraq. Limiting personal jurisdiction on the basis of nationality could undermine the perception that the Special Tribunal is impartial. The Statute also gives the IST jurisdiction over substantive crimes that are not offenses under international criminal and humanitarian law, including:
* Article 14(b) (“wastage of national resources and the squandering of public assets and funds”); and
* Article 14(a) (“attempt to manipulate the judiciary” in violation of the Iraqi interim constitution of 1970).
It might be argued by some that the inclusion of offenses of lesser gravity may provide additional means to convict individuals for these offenses when evidence is lacking to obtain a conviction for more serious crimes. However, convictions for offenses that are significantly incongruous with the gravity of genocide, war crimes, and crimes against humanity will undermine efforts by the Special Tribunal to address the most serious crimes. Prosecuting these crimes could also divert resources from cases involving genocide, war crimes, and crimes against humanity charges.
Exclusion of Ba’ath Party Members
There is a requirement under Article 33 that excludes any officer, prosecutor, investigative judge, judge, or other personnel of the Special Tribunal who has been a Ba’ath Party member. Blanket exclusion of former members of the Ba’ath Party from working at the Special Tribunal could undermine the legitimacy and credibility of the tribunal. There should be a requirement that candidacy of Ba’ath Party members will be assessed on a case-by-case basis with regard to past performance and seniority of membership in the Ba’ath Party.
* * * *
We urge the Iraqi Interim Government to consider these concerns and to amend the Statute accordingly. The issue of justice for serious past crimes is too important to risk. The legitimacy and credibility of the trials will be undermined if there is a perception that trials before the Special Tribunal are ,not fair and effective or that the Special Tribunal is not impartial and independent. Similarly, insufficient application of international law should not be permitted to compromise accountability for serious past crimes. Justice must be done and be perceived to be done for the victims and their families,and for a future in Iraq based on respect for human rights and the rule of law.
Sincerely,
Richard Dicker
Director
International Justice Program
1Under the 1969 Iraqi Penal Code, the death penalty can be imposed for offenses including, but not limited to, murder (para. 406), sexual offenses such as sexual assault and rape (para. 423), offenses against external national security (para. 156, 157-160, 162, and 164), and offenses against internal national security (para. 190 and 192).
