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Introduction to the Laws of Kurdistan, Iraq Working Paper Series Public International Law: International Criminal Law Pub. 2015 Iraq Legal Education Initiative (ILEI) American University of Iraq, Sulaimani Stanford Law School Kirkuk Main Road Crown Quadrangle Raparin 559 Nathan Abbott Way Sulaimani, Iraq Stanford, CA 94305-8610 www.auis.ed.iq www.law.stanford.edu 1 Preface to the Series: Introduction to the Laws of Iraq and Iraqi Kurdistan Iraq and Iraq's Kurdistan Region is at a compelling juncture in their histories. In the wake of the transition to a democratic state, the country and region economy has prospered and its institutions have grown more complex. As institutional capacity has grown, so too has the need for a robust rule of law. An established rule of law can provide assurances to investors and businesses, while keeping checks on government and private powers and protecting citizens’ fundamental rights. Institutions of higher learning, such as universities and professional training centers, can and should play a key role in stimulating and sustaining this dynamic. Indeed, education is foundational. This paper is part of the Introduction to the Laws of Iraq and Iraqi Kurdistan, a series of working papers produced by the Iraqi Legal Education Initiative (ILEI) of Stanford Law School. This series seeks to engage Iraqi students and practitioners in thinking critically about the laws and legal institutions of Iraq and Iraqi Kurdistan. Founded in 2012, ILEI is a partnership between the American University of Iraq in Sulaimani (AUIS) and Stanford Law School (SLS). The project’ seeks to positively contribute to the development of legal education and training in Iraq. The working paper series devotes significant attention to pedagogy. By writing in clear and concise prose and consulting with local experts at each step of the writing process, the authors strive to make the texts accessible to diverse and important constituencies: undergraduate law students, lawyers and judges, government officials, members of civil society, and the international community. By discussing the Iraqi and Kurdish legal regimes and applying specific laws to factual situations, the authors model how to “think like a lawyer” for the reader. They also use hypothetical legal situations, discussion questions, and current events to stimulate critical thinking and encourage active engagement with the material. These working papers represent the dedicated efforts of many individuals. Stanford Law School students authored the texts and subjected each working paper to an extensive editing process. The primary authors for the initial series including papers on Commercial Law, Constitutional Law, and Oil and Gas Law, were John Butler, Mark Feldman, David Lazarus, Ryan Harper, and Neil Sawhney under the guidance of the Rule of Law Program Executive Director, Megan Karsh. Jessica Dragonetti, Emily Zhang, and Jen Binger authored the remaining papers on domestic law. Kara McBride, Cary McClelland, Neel Lalchandani, Charles Buker, Liz Miller, Brendan Ballou, and Enrique Molina authored papers primarily concerned with Iraq’s engagement with international law. I also thank the former and current deans of Stanford Law School, Deans Larry Kramer and Liz Magill, for their financial support, and the Stanford Law School alum, Eli Sugarman (J.D., 2009), who acts as an advisor to the project. The faculty and administration of American University of Iraq in Sulaimani provided invaluable guidance and support throughout the writing process. Asos Askari and Paul Craft in particular played a leadership role in getting the program off the ground and instituting an introductory law class at AUIS. Ms. Askari taught the first law class in the 2014 spring semester. Former presidents of AUIS, Dr. Athanasios Moulakis and Dr. Dawn Dekle, provided unwavering support to the project. And finally, a special thanks to Dr. Barham Salih, founder and Chair of AUIS, without whose foresight and vision this project would not have been possible. Finally, the authors of this series of papers owe an extraordinary debt of gratitude to many thoughtful Kurdish judges, educators, lawyers, and others who work within Iraqi institutions for their critical insights. In particular, the textbooks received vital input from Rebaz Khursheed Mohammed, Karwan Eskerie, and Amanj Amjad throughout the drafting and review process, though any mistakes are solely the authors’ responsibility. ILEI plans to continue publishing working papers. All texts will be published without copyright and available for free download on the internet. To the students, educators, legal, and government professionals that use this set of working papers, we sincerely hope that it sparks study and debate about the future of Iraqi Kurdistan and the vital role magistrates, prosecutors, public defenders, private lawyers, and government officials will play in shaping the country’s future. Professor Erik Jensen Stanford Rule of Law Program Palo Alto, California 2 INTERNATIONAL CRIMINAL LAW & IRAQ 1. INTRODUCTION “People deserve to know about that. They need to understand, not so that they can pity the region, but simply because it helps to explain so much of the way Kurdistan has tried to improve itself afterwards. They need to understand to stop it from ever happening again. They need to understand, because it is unacceptable that a genocide that was essentially ignored by many countries around the world at the time should be continued to be ignored by history.”1 - Davan Yahya Khalil In August of 2006, survivors of an attack that took place almost 20 years before had the chance to tell their story. They told their stories in a courtroom in Baghdad. They were appearing before a court known as the Iraqi High Tribunal. It was the opening days of a trial against Saddam Hussein and 6 other former leaders for their role in the Al-Anfal campaign: a targeted attack on the Kurdish people that occurred in the late 1980s.2 During the trial, lawyers presented evidence that the defendants had intentionally killed over 100,000 Kurdish people and destroyed over 4,000 Kurdish villages.3 The lawyers provided evidence that chemical weapons were used against the town of Halabja, that Kurdish people were forced to leave their homes, and that their villages were burned to the ground.4 Based on this evidence, the lawyers asked the court to find that the defendants had violated international criminal law. As we will see, international criminal law can help societies respond to terrible tragedies like the Al-Anfal campaign. International criminal law refers to the set of rules developed to address crimes seen as particularly heinous, massive in scope, or international in nature. This area of law also governs the creation of special institutions to address such crimes. Further, international criminal law can help victims and societies move past these terrible events. In this chapter, we will learn about and explore these various aspects of international criminal law. 1.1 Overview This chapter provides an introductory discussion of international criminal law, with a particular focus on how this field has impacted and been shaped by Iraqi experiences. 1 Davan Yahya Khalil, Kurdistan: Genocide and Rebirth, (CreateSpace Independent Publishing Platform, 2013), excerpt available at: http://www.gulan-media.com/english/articles.php?eid=29&id=152. 2 Clark Gard, The Anfal Trial and the Iraqi High Tribunal, Update Number Three: The Defense Phase and the Closing Stages of the Anfal Trial, International Center for Transitional Justice, 2-5, http://ictj.org/sites/default/files/ICTJ-Iraq-Anfal-Tribunal-2006-English2.pdf. 3 Abdel Hamid Zebari. Al-Monitor: The Pulse of the Middle East - Iraq Pulse, "Iraqi Kurds Pressure Baghdad to Join ICC ." Last modified February 27, 2013. Accessed February 9, 2014. http://www.al- monitor.com/pulse/originals/2013/02/iraq-kurd-icc.html. 4 Ibid., 2-3. 3 Public international law provides rules that help shape the conduct of countries. Public international law helps to define the relationships, rights, and responsibilities that states possess. International criminal law, however, is unique because it is primarily concerned with the conduct of individuals. In particular, international criminal law prohibits people from committing certain acts that are defined as crimes by international law. When individuals are accused of committing certain international crimes, international criminal law provides various structures to punish those individuals. International crimes are violations of international law that are universally recognized to be particularly serious. In this chapter, we will explore these various aspects of international criminal law. We will first start by examining the fundamentals of international criminal law. In Part 2, we will briefly study the history and purposes of international criminal law. Then, in part 3, we will study the four major international crimes: the crime of aggression, war crimes, crimes against humanity, and genocide. After that, we will look at how various institutions prosecute international crimes in Part 4. Finally in Part 5, we will focus on how the Iraqi High Criminal Court handled the prosecutions of Saddam Hussein and other former political leaders of the Ba’ath party for violations of international criminal law. 2. THE HISTORY, SOURCES, AND PURPOSES OF INTERNATIONAL CRIMINAL LAW Before we explore the modern form of international criminal law, it is important to understand how this field of law developed over time. Once we learn this history, we can better understand how international criminal law works in practice today. After we explore the history, we will explore the basis for international criminal law, and the reasons why an international criminal law system even exists. 2.1 A Brief History of International Criminal Law Compared to other areas of the law, the origins of international criminal law are relatively recent. As this section will explore, the vast majority of development in the field has taken place over the past 70 years, since the end of the Second World War in 1945.
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