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Home , Crime against peace, Dujail Massacre, International law

Introduction to the of Kurdistan, Iraq

Working Paper Series

Public International :

International

Pub. 2015

Iraq Initiative (ILEI) American University of Iraq, Sulaimani Stanford 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 , 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 . 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, and , government officials, members of , and the . By discussing the Iraqi and Kurdish legal regimes and applying specific laws to factual situations, the authors model how to “think like a ” 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 , , 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 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 . 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 , , 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 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 . They were appearing before a known as the Iraqi High . It was the opening days of a against and 6 other former leaders for their role in the Al-: a targeted attack on the Kurdish people that occurred in the late 1980s.2

During the trial, lawyers presented 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 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 Phase and the Closing Stages of the Anfal Trial, International Center for Transitional , 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 of aggression, crimes, , 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 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 in 1945.

While the roots of international criminal law can be traced back many centuries, the modern system of international criminal law began in the early .5 At the end of the First World War in 1919, representatives from the Allied Powers (which included the , the British Empire, France, Italy, and Japan) signed a with Germany known as the Treaty of Versailles.6 In addition to outlining the conditions of Germany’s , the treaty stated that the former leader of Germany, Wilhelm II, should be tried before an international

5 Robert Cryer, Prosecuting International Crimes, (United Kingdom: Cambridgue University Press , 2005), 9-31. 6 Anthony Cassese, International Criminal Law, 2nd ed., (New York: , 2008), 317.

4 tribunal for his “supreme offence against international and the sanctity of .”7 Wilhelm II, however, escaped from Germany and was never prosecuted.8

It was the conclusion of the Second World War, then, that is most often recognized as the starting point of modern international criminal law. During the war, the Nazi regime in Germany engaged in the horrific and systematic killing of ’s Jewish population. By the war’s conclusion, the German forces had killed more than 6 million Jewish people.9 At the end of the war, Great Britain, the Soviet Union, France, and the United States captured 24 of the Nazi’s highest-ranking officials.

Because the Nazis’ crimes were so widespread and horrific, the Allied Countries created the of the International Tribunal (“IMT”).10 The Charter charged the 24 Nazis with three new international crimes: crimes against peace, crimes against humanity, and war crimes.11 These crimes were designed to prevent countries from starting aggressive against other countries. They were also designed to prevent future individuals from committing terrible crimes during wars, like the Nazis had done. The IMT also set up a system for the prosecution of Nazis. In 1945, the trial took place in Nuremberg, Germany. In this trial of incredible importance, many of the Nazi leaders were found guilty of international crimes.12 In 1946, Japanese leaders were also prosecuted in Tokyo, Japan for international crimes committed during the war.13

This brief history of international criminal law shows that its origins are largely based on the First World War and the Second World War. Both of these wars were largely fought by Western countries, including Great Britain, France, Germany, and the United States. As a result, some scholars have criticized international criminal law by arguing that it is a reflection of Western values, instead of being a reflection of truly international values. For example, scholar Frédéric Mégret believes that “international is a manifestation of Western .”14 Other scholars, however, reject this view. Farhad Malekian argues that “international criminal law does not ignore Islamic law.”15 His view is that international criminal law incorporates more than just Western conceptions of law. Keep this debate in mind as we proceed throughout this chapter.

7 Ibid., 317-318. 8 Ibid., 318. 9 Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (London: The Bodley Head, 2010), 45. 10 Charter of the International Military Tribunal, art. 6(a), annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]. 11 Robert Cryer, Prosecuting International Crimes, (United Kingdom: Cambridgue University Press , 2005), 39. 12 Ibid., 40. 13 Ibid., 44. 14 Christine Schwobel, Laura Dawson, and Joycelin Okubuiro, "Critical Approaches to International Criminal Law Conference, 6-8 December 2012." (conference report., University of Liverpool , 2010), http://www.harvardiglp.org/wp-content/uploads/2013/03/Conference-report_WEB.pdf. 15 Farhad Malekian, Principles of Islamic International Criminal Law: A Comparative Search, (Leidin: Brill, 2011), xxiv.

5 Even though international criminal law has distinctly Western roots, it has since been applied in various parts of the world. Since the end of the Second World War, international criminal law has changed rapidly. Countries have entered into treaties that further define international crimes. International organizations have created to prosecute international crimes after conflicts in the countries of Yugoslavia and . Early in the 21st century, a new permanent court called the International Criminal Court began hearing international criminal law cases. And in the last 10 years, Iraq formed a special court to prosecute Saddam Hussein and other former leaders of the Ba’ath party for international crimes. This chapter will introduce and consider all of these recent developments in the field of international criminal law.

Discussion Question 1. Why do you think international criminal law has developed so rapidly in the last 60 years? 2. What international events and trends may have contributed to this rapid development?

2.2 The Sources of International Criminal Law As noted in the preceding section, the Allied Forces created new international crimes at the end of the Second World War. With this in mind, it is important to ask: what is the basis for these international crimes? In other words, what are the major in the international criminal law field?

The answer is that the sources of international criminal law are very similar to the sources of public international law. Generally, there are five main sources of international criminal law: treaty law, customary international law, general principles of law, judicial decisions, and “learned writings.”16

Treaties have an especially important role in the context of international criminal law. Since the prosecution of the Nazis at the International Military Tribunal, countries have entered into many treaties related to international criminal law. These treaties generally place a duty on countries to prevent and prosecute certain international crimes. For example, in 1948, the United General Assembly adopted the “ on the Prevention and Punishment of the Crime of Genocide” (“CPPCG”).17 The CCCPG states that all countries that sign the treaty are obligated to prevent and punish acts of genocide (a term that will we will explore later in the chapter).18 This treaty and other agreements between countries provide the majority of the law that make up international criminal law.

16 International Criminal Law Services, What is International Criminal Law?, War Crimes Justice Project, 5, http://wcjp.unicri.it/deliverables/docs/Module_2_What_is_international_criminal_law.pdf. 17 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, [hereinafter CPPCG]. 18 Ibid.

6 2.3 The Purposes of International Criminal Law Another basic question to ask is why international criminal law exists in the first place. Iraq, like all other countries, already has its own set of criminal laws. These countries could prosecute someone who committed terrible crimes within their in their domestic . Given that countries have their own domestic criminal law and court systems, one may wonder: what is the purpose of having a system of international criminal law?

Though there is no “correct” answer to this question, there are several possible answers. First, international criminal law is designed to address the world’s most serious atrocities. Countries punish terrible crimes such as murder and rape in their own domestic courts. But in certain cases, these crimes are committed on such a large scale and in a particularly horrific manner. For example, the crimes that the Nazis committed during the Second World War were different than a domestic murder case. The Nazis committed millions of murders, they targeted during a time of war, and they attempted to destroy an entire racial and religious group. International criminal law recognizes that this type of crime is different than the crime of one person killing another person. International criminal law, then, is designed to punish the individuals who commit these crimes. Because these crimes are of such a high magnitude and because they are universally condemned, international criminal law seeks to punish them whenever and wherever they occur, regardless of any domestic laws.

A second and related that international criminal law exists is that countries have an interest in . International crimes often have a massive impact on individuals, the countries where they are committed, and even other countries around the world. Countries use international criminal law to punish those who commit these crimes with the goal of preventing future individuals from committing similar crimes.

A final reason that international criminal law exists is that domestic criminal law systems may not be equipped to handle such large and complex crimes. A single country may not have the proper criminal provisions in their penal codes to address the alleged crimes. Or a domestic court system may not have the capacity to handle complex evidence, or to hear thousands of victims’ claims. Also, domestic courts may struggle to adjudicate cases in the aftermath of bitter conflicts. Consider that in a , for example, the two opposing sides will often be accused of committing terrible crimes against one another. It may be difficult for a domestic court based in that country to adjudicate a case without being accused of showing bias to one of the opposing sides.

In addition to thinking about why an international criminal law system exists, we also want to critically think about the major goals of international criminal law. International criminal law can promote many different goals in a society. First, international criminal law can serve the purpose of restoring the rule of law. Though there is no single definition, the rule of law means that laws should be respected in a society, and that they should apply equally to all people. International

7 crimes are generally committed during times of conflict. Some times these conflicts are between different countries. Other times, these conflicts take place within a single country. In either scenario, these conflicts undermine a society's rule of law. For example, government leaders may disregard the law during times of conflict. The prosecution of international crimes can help a society restore the rule of law. A new government may prosecute the crimes of a prior leader to show that the new government is committed to following the law. This prosecution can also restore the principle that all people—including the country’s leaders—must follow the law.

Second, a major goal of international criminal law is accountability. Accountability is the principle that people are responsible for the actions they take. In the context of international criminal law, the prosecution of international crimes can punish those who were responsible for committing terrible crimes. Prosecution of these crimes, therefore, can hold former leaders accountable for their crimes. Punishment also sends a signal that such crimes will not be tolerated in that society.

Third, international criminal law can help restore relationships between different groups in society. During conflicts, societies are often fractured into different groups. Many times these groups are split along ethnic, religious, or racial lines. After these conflicts have passed, international criminal law can help these different groups reconcile with one another. As we will see, some aspects of international criminal law can bring different groups together to address past violence or divisions between the groups.

Fourth, international criminal law can be used to bring justice to victims of the terrible crimes that occurred. A trial for international crimes shows that a society recognizes that many people were harmed by the alleged crimes. Just as an international criminal trial can restore stability in a society, it can help restore dignity in the individuals who survived the mass atrocities.

Therefore, international criminal law can help promote many goals: the restoration of the rule of law, accountability, reconciliation, and justice for victims. As we will see, it is difficult for societies to achieve all of these goals at the same time. In fact, these goals often conflict with one another. Later in this chapter, we will discuss how international institutions have been developed in order to achieve some of these different goals. For now, remember the purposes underlying international criminal law as we proceed to learn the basic types of international crimes.

Discussion Question 1. As noted above, international criminal law can help further a number of goals in a society, including the rule of law, accountability, reconciliation, and victim justice. If you had to prioritize one of two of these goals over the others, which would you select? Why?

8 3. SUBSTANTIVE INTERNATIONAL CRIMES So far in this chapter, we have reviewed the general background of international criminal law. We have studied how modern international criminal law developed in response to the terrible crimes of the Second World War. We also started to think about why a system of international criminal law is necessary. Refer back to this material as we progress throughout this chapter. When we study modern cases, it may be helpful to think about how much international criminal law has changed over time. It may also be helpful to ask yourself whether the core purposes of international criminal law are being achieved.

We will next turn to the specific crimes that are punishable under international criminal law. Think for a moment about the crimes that are punishable under domestic Iraqi criminal law. You may be thinking about the crime of murder, or the crime of robbery, or the crime of rape. Iraqi courts apply domestic law in punishing these crimes. International criminal law punishes a different set of crimes known as international crimes. As mentioned earlier, international crimes are serious violations of international law. We will study the 4 major international crimes: the , war crimes, crimes against humanity, and genocide. Our first goal is to fully understand the definitions of these four international crimes.

3.1 Crime of Aggression The first substantive international crime that we will explore is the crime of aggression. The crime of aggression is an international crime that punishes military or political leaders who aggressively start wars in violations of international law.

The modern crime of aggression has its roots in the aftermath of the Second World War. After the Second World War, the Allies prosecuted the Nazi leaders for “crimes against peace.”19 The International Military Tribunal defined crimes against peace as the “planning, preparation, initiation or waging a , or a war in violation of international treaties, agreements or assurances, or participation in a common plan or .”20 In other words, the was designed to punish those who deliberately start wars that violate international law.

Since the Second World War, the crime against peace began to be known as the crime of aggression. In 2010, a group of member countries came together and agreed on the definition for the crime of aggression.21 Let us take a look at the precise legal definition:

Crime of Aggression22

19 IMT Charter, Art. 6. 20 Ibid. 21 International Criminal Court, "The Review Conference of the Rome ." Accessed February 9, 2014. http://www.kampala.icc-cpi.info/.

9 Article 8 The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations

Look closely at this legal definition. There are a few key elements of this definition. First, the definition makes clear that an individual can be prosecuted for the “planning” or “preparing” of an aggressive war. Thus, an individual can be punished, even if a war is not actually started. Second, the definition focuses on those who “exercise control.” This means that the definition applies to the leaders that make the decision to start a war. Third, the definition requires that only the most “manifest”—in other words, serious—violations of international law can be punished as a crime of aggression.

For Further Consideration Let us now test our understanding of the crime of aggression by analyzing a real-life scenario involving Iraq. Some international leaders and scholars have argued that the 2003 invasion of Iraq led by the United States fit under the definition of a crime of aggression. Shortly after the invasion by coalition forces in 2003, Iraq’s to the United Nations, Mohammed Aldouri, believed the military action was “a violation of international law” and further said, “it seems that the war of aggression against my country has started.”23 In support of this view, some legal experts noted that the invasion into Iraq was neither made in self-defense nor was it approved by a separate United Nations resolution.24 Notably, the International Commission of Jurists stated that “a war waged without a clear mandate from the United Nations Security Council would constitute a flagrant violation of the prohibition on the use of force.”25 There were others, however, who disagreed with this viewpoint. Specifically, they believe there was an international legal basis for the war. For example, the British government defended the war by pointing to United Nations Security Council Resolution 1441, which was passed in October 2002.26 The Resolution gave the Iraqi government a “final opportunity” to comply with its nuclear weapons disarmament obligations and warned that there would be “serious

22 Rome Statute of the International Criminal Court, Art. 8 bis, July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute]. 23 Associated Press, "Iraq plans to file U.N. complaint." Last modified March 20, 2003. Accessed February 9, 2014. http://usatoday30.usatoday.com/news/world/iraq/2003-03-20-un-iraq_x.htm. 24 International Commission of Jurists, "ICJ deplores move towards a war of aggression on Iraq." Last modified March 18, 2003. Accessed February 9, 2014. http://www.icj.org/icj-deplores-moves-toward-a-war-of-aggression-on- iraq/. 25 Ibid. 26 The Guardian, "A Case for war: Lord Goldsmith's published advice on the legal basis for the use of force against Iraq ." Last modified March 17, 2003. Accessed February 9, 2014. http://www.theguardian.com/world/2003/mar/17/iraq2.

10 consequences” as a result of continued violations.27 Based on this language in the Resolution, some scholars have argued that the war was started legally. This dispute shows that the crime of aggression can be subject to different interpretations.

3.2 War Crimes Next, we will consider the international crime known as war crimes. Like the prior section, we will first define the crime before studying a few examples.

War crimes, like the crime of aggression, were also formally developed at the end of the Second World War. Most notably, a series of treaties known as the provide the basis for understanding war crimes. In particular, the , which was passed in 1949, states that “grave breaches” during wartime should be punished.28 Article 147 provides a few examples of these “grave breaches,” including “willful killing, or inhuman treatment, including biological experiments.”29 The “grave breaches” provision in the Fourth Geneva Convention is what we now refer to as war crimes. In defining war crimes, it may be helpful to focus on two main components. War crimes are individual actions that 1) seriously violate international law, and 2) that are committed during times of war. International law sets the rule for what is acceptable behavior during wartime. War crimes are serious violations of those rules.

An example may be helpful in understanding this definition. Imagine there is a soldier named Ivan and he is from Bulgaria. Now imagine that Bulgaria is at war with Turkey. If Ivan attempts to kill a soldier from Turkey, then no has been committed. In the context of war, it is expected that a soldier from one country may attempt to harm a soldier from an opposing country. But now consider that Ivan has attempted to kill an innocent in Turkey. Because the targeting of civilians is prohibited under international law, Ivan has committed a war crime.

Short Exercise 1. Imagine that Ivan, the soldier from Bulgaria, captures a soldier from Turkey. If Ivan the soldier from Turkey, has he committed a war crime?

27 The Guardian, "Full text, Iraq Legal Advice: The full text of the advice about the of war with Iraq given by the attorney general, Lord Goldsmith, to the prime minister, Tony Blair, on March 7 2003." Last modified April 25, 2005. Accessed February 9, 2014. http://www.theguardian.com/politics/2005/apr/28/election2005.uk. 28 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3526, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 29 Ibid., Art. 147.

11 While many different actions may violate international law and be considered war crimes, there are a few general categories of war crimes. First, “war crimes may arise from the use of prohibited means or methods of warfare.”30 For example, if soldiers use chemical weapons, then they have committed war crimes. Second, war crimes occur when soldiers target actions “against persons not involved in active hostilities.”31 The soldier who targets civilians has committed a war crime. A third category of war crimes occurs when individuals engage in particularly cruel or inhumane behavior. Ivan in the Short Exercise above was guilty of committing this type of war crime.

The International Military Tribunal gave the following definitions of war crimes:

War Crimes Definition 32 Article 6 (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or to slave labor or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of war or persons on the , killing of hostages, plunder of public or private , wanton destruction of , towns or villages, or devastation not justified by military .

Note that the definition above uses the language “shall include, but not be limited to.” This means that the war crimes listed are simply offered as examples. Other actions taken during war may also violate international law and therefore would be war crimes as well. Can you think of other examples of war crimes?

Let us now consider a few recent examples of war crimes. In almost every major war of the 20th century, there have been serious allegations of war crimes. The current conflict in Syria has led to many allegations. Though the crisis is ongoing at the time of this writing, there is credible evidence that suggests that Syrian military forces have both used chemical weapons33 and conducted “mass executions” of civilians34—both of which would be war crimes. In fact, according to “U.N. findings, the Syrian government and its intelligence agencies have used widespread, systematic torture to interrogate, intimidate and punish people seen as opponents. Torture has been used in detention centers, security branches, and hospitals.”35 It should also be noted that the U.N. has documented torture and executions by the opposing side: the

30 Sean D. Murphy, Principles of International Law, 2nd ed., (St. Paul: West, 2012), 421. 31 Ibid., 420. 32 IMT Charter, Art. 6. 33 United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic: Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013, September 13, 2013, 1, http://www.un.org/disarmament/content/slideshow/Secretary_General_Report_of_CW_Investigation.pdf. 34 Stephanie, Nebehay. Reuters, "U.N. documents new war crimes in Syria for future prosecution." Last modified January 25, 2014. Accessed February 9, 2014. http://www.reuters.com/article/2014/01/25/us-syria-crisis-warcrimes- idUSBREA0N1SV20140125. 35 Ibid.

12 Syrian rebel forces. It is common for both sides in a conflict to be accused of committing war crimes.

A look at Iraq’s history shows it is likely that both the Iraqi government has committed war crimes, and that foreign powers have committed war crimes against Iraqi citizens. For example, the war between and Iraq (from 1980-1988) produced many allegations of war crimes. Notably, there is evidence that the Iraqi government used chemical weapons (including mustard gas and nerve gas) that resulted in the deaths of many Iranian soldiers.36 More recently, U.S. and British forces have been accused of war crimes during the war in Iraq. In 2007, 17 Iraqi civilians were shot and killed in Nisour Square in Baghdad by a group of military contractors hired by the United States government.37 The U.S. charged some of the involved individuals under U.S. criminal law.38 In 2009, an American court dismissed the charges against five guards employed by the U.S. security firm, Blackwater.39 Four of these guards were tried again in an American court during the summer of 2014 and the case has gone to a .40 While the Blackwater guards have been charged under U.S. criminal law, they have not been charged with war crimes.

3.3 Crimes Against Humanity We will now take a brief look at another international crime: crimes against humanity. Crimes against humanity are international crimes involving the widespread and systematic attacks against civilian populations.

The Rome Statute provides a list of acts that are considered crimes against humanity when they are committed against civilian populations. This list includes, among other crimes, murder, enslavement, torture, and rape.41 Crimes against humanity also include the “persecution against any identifiable group or collectivity” based on their “political, racial, national, ethnic, cultural, religious, [or] gender” affiliations.”42

The Nazis’ horrific treatment of Europe’s Jewish population during the Second World War fits this modern definition of crimes against humanity. The Nazis murdered Jewish people because of their religion, enslaved them by making them work in concentration camps, and deported them by forcing them to leave their homes.

36 E. van Heughten , and P.A. van Laar , The Iraqi Special Tribunal for Crimes Against Humanity , (Nimejen: Wolf Legal Publishers , 2011), 29. 37 Al Jazeera, "Blackwater faces new charges in Iraq killings." Last modified October 18, 2003. Accessed February 10, 2014. http://www.aljazeera.com/news/americas/2013/10/blackwater-faces-new-charges-iraq-killings- 2013101805946849805.html. 38 Ibid. 39 Risen, James. The New York Times, “Before Shooting in Iraq, a Warning on Blackwater.” Last modified June 29, 2014. Accessed September 14, 2014. http://www.nytimes.com/2014/06/30/us/before-shooting-in-iraq-warning-on- blackwater.html. 40 Chuck, Elizabeth. NBC News, “Blackwater Trial Goes to Jury: What’s at Stake.” Last modified September 2, 2014. Accessed September 14, 2014. http://www.nbcnews.com/storyline/iraq-turmoil/blackwater-trial-goes-jury- whats-stake-n193666. 41 Rome Statute, Art. 7. 42 Ibid.

13 Let us first understand how crimes against humanity are different than war crimes. While both crimes punish certain actions during times of conflict, there are differences between the two crimes. The most important difference is that crimes against humanity must be part of a government policy, or a widespread practice that is accepted by a government. There must be a clear pattern of the illegal behavior for there to be crimes against humanity. Crimes against humanity usually involve multiple acts and multiple victims. A war crime, by contrast, can be a single act against a single person.

An example may help to illuminate this difference. If a single soldier purposefully kills a civilian on one occasion, then a war crime has occurred. However, if a government directs all of its soldiers to follow an official policy of executing civilians, then that government has committed a crime against humanity.

While allegations of crimes against humanity are not as frequent as allegations of war crimes, there still have been a number of prosecutions for crimes against humanity. We will explore one of those prosecutions when we study the prosecution of former Iraqi leaders.

3.4 Genocide “Genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world. Recognizing that at all periods of history genocide has inflicted great losses on humanity….”43

These words come from the Convention on the Prevention and Punishment of the Crime of Genocide (“CPPCG”), a treaty that was passed by the United Nations in 1948. In this section, we study the subject of this treaty: the international crime of genocide. The basic definition of genocide is deliberately killing or harming a group of people who share the same , religion, race, or ethnicity with an intent to destroy or seriously diminish the group.

The word genocide was first used in 1943 by , a Polish-Jewish lawyer.44 The term genocide is based on the Greek word genos (meaning tribe or race) and the Latin word cide (meaning killing). Mr. Lemkin created the term in 1943 in the midst of the Nazis’ systematic killing of Europe’s Jewish population. He believed that the term also accurately described the Ottoman’s extermination of its Armenian population45–an event that the majority of historians recognize as the Armenian Genocide of 1915.

Let us now study the legal definition of genocide. The CPPCG provides the following definition:

43 CPPCG, Preamble. 44 Alessandra, Stanley. The New York Times, "A PBS Documentary Makes Its Case for the Armenian Genocide, With or Without a Debate." Last modified April 16, 2006. Accessed February 9, 2014. http://www.nytimes.com/2006/04/17/arts/television/17stan.html?pagewanted=print. 45 Ibid.

14 Genocide Definition46 In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the group; b. Causing serious bodily or mental harm to members of the group c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group

Genocide, in other words, punishes those who intentionally attempt to kill or seriously harm a specific group of people. As the 1948 definition makes clear, however, only certain groups receive protection under the Convention. That is, only national, ethnic, racial, and religious groups can be victims of genocide.

Short Exercise 1. The above legal definition of genocide has generated controversy. Most notably, some scholars have criticized the definition because it is restricted to just four groups: national, ethnic, racial, and religious groups. Imagine that a political leader in one country targets all the member of an opposing . Imagine this leader kills thousands of members of this one political party (and assume they have a diversity of racial and religious backgrounds). Under the current legal definition, the targeting of this political group would not be considered genocide. Either by yourself or with a partner, develop 1 or 2 arguments why this act should be considered genocide. Then, develop 1 or 2 arguments for why it is logical to exclude political groups from the definition of genocide.

It was the Nazis’ actions during the Second World War that led to the formation of the CCPCG in 1948. The CCPCG is a treaty designed to punish those who are responsible for the crime of genocide. All countries that sign the treaty commit themselves to prevent and punish actions of genocide both during times of war as well as during times of peace.47 The Iraqi government became a party to the treaty in 1959.48

The CCPCG explicitly outlines the crimes for which individuals can be punished. In addition to punishing individuals who commit genocide, the Convention also punishes the following crimes: “conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to

46 CPPCG, Art. II. 47 CPPCG, Art. I. 48 United Nations, "Treaty Collection." Accessed February 10, 2014. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en.

15 commit genocide; [and] complicity in genocide.”49 This means that individuals who plan to commit genocide, or encourage others to commit genocide, can still be punished under the Convention. Saddam Hussein and other former leaders of the Ba’ath party were accused of committing genocide, which we will explore in Part 5 of this chapter.

4. THE PROSECUTION OF INTERNATIONAL CRIMES: AN EXPLORATION OF DIFFERENT INSTITUTIONAL MODELS We have now reviewed the four major international crimes: crime of aggression, war crimes, crimes against humanity, and genocide. Remember these definitions as we continue throughout this chapter. The next question we will consider is: once we suspect a person has committed one of these international crimes, how can we hold that person accountable? In other words, what options does a society have for responding to international crimes?

To understand this challenge, it may be helpful to consider a trial for a domestic crime. If Sinan, an Iraqi citizen, is suspected of committing murder in Iraq, Sinan would likely be tried in Iraq where the Iraqi criminal code will be applied. Compare this to the situation involving Saddam Hussein. Saddam Hussein was the leader of Iraq and was accused of committing international crimes, including genocide and crimes against humanity. After his regime was overthrown, Iraq was faced with the challenge of how to respond to his widespread crimes and how to move forward as a society.

Countries in this position are facing the challenge of transitional justice. According to the U.N., transitional justice is “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuse.”50 Transitional justice, in other words, is the options that a country has when it attempts to address and move beyond major violations in a past conflict. After Saddam Hussein was removed from power, the new Iraq government underwent the process of transitional justice. You may wonder: why is the term “transitional” used? It is because a society that addresses its history of past abuses hopes to transition into a stronger future.

Countries facing this challenge have taken different approaches. Some countries rely on their own court system to prosecute international crimes. Other societies enlist the help of international organizations to prosecute these complex cases. Still other countries chose to form an international criminal court that has the sole purpose of prosecuting violations of international criminal law. And some nations have chosen to avoid punishing individuals and instead have focused on healing victims and their society.

Each of these options has important benefits and drawbacks. Recall, as we discussed earlier, that international criminal law can help societies achieve a variety of goals. It can help a society

49 CPPCG, Art. III. 50 United Nations, Guidance Note of the Secretary General: United Nations Approach to Transitional Justice, 2, http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf.

16 restore order after conflicts. International criminal law can be used to punish individuals responsible for terrible crimes. It can help reconcile differences between conflicting groups. And international criminal law can provide a degree of justice for victims of terrible tragedies. Countries prioritize some of these goals over others when they make decisions about which approach or approaches to take. We will now explore these different approaches to international crimes in depth.

4.1 Prosecution in Domestic Courts Though uncommon, some countries have empowered their domestic courts to prosecute international crimes. This arrangement can take different forms. In some countries, international crimes have been expressly outlawed under domestic laws. For example, the Democratic Republic of Timor-Leste has punished genocide and crimes against humanity under Article 123 and Article 124 of their domestic penal code.51 Since these provisions are part of the domestic criminal law code, domestic courts have the power to punish the crimes of genocide and crimes against humanity.

In other countries, special domestic courts have been created for the sole purpose of hearing cases about international crimes. For example, Bosnia created a Special War Crimes in its own court system to hear international crime allegations.52 This is the option that Iraq chose when it decided to prosecute the international crimes of its past regime.

There are both benefits and drawbacks to giving domestic courts the power to consider international crimes. The most important benefit is that a country can retain control of its own proceedings. By choosing to use a domestic court, Iraq did not have to rely on international authorities to set up a court. However, one main drawback to using domestic courts is that they may lack the expertise to handle international crimes. Some countries may not have a well- functioning court system that can handle the prosecution of complex international crimes. Another potential drawback is that domestic judges may have been partial to one side during the conflict and, as a result, biased during the domestic court proceeding. This may actually provoke further conflict between opposing groups in a society. We will closely examine the domestic court approach when we explore the Iraqi tribunal.

4.2 Prosecution in Ad Hoc Tribunals Domestic courts are not the only option for prosecuting international crimes such as war crimes and genocide. In recent years, international courts have been created to hold related to international crimes. One particular type of is known as an ad hoc tribunal, which we will explore in this section.

51 Stanford Timor-Leste Legal Education Project, Introduction to the Laws of Timor-Leste: Criminal Law, 33, http://www.stanford.edu/group/tllep/cgi-bin/wordpress/wp-content/uploads/2013/09/Timor-Leste-Criminal-Law.pdf. 52 Barry E. Carter, Phillip R. Trimble, and Allen S. Weiner, International Law, 5th ed., (New York: Aspen Publishers, 2007), 1179.

17 Before we examine specific examples of ad hoc tribunals, let us understand the definition of ad hoc tribunal. The phrase “ad hoc” means “for a specific purpose.” An ad hoc international criminal tribunal, then, is a tribunal that is created for the specific purpose of prosecuting international crimes linked to a particular conflict. These tribunals are formed for the purpose of punishing those who commit international crimes.53 It is important to recognize the international character of these tribunals. A single country does not create them. Rather, ad hoc tribunals are formed by multiple countries coming together or with the help of an international organization.

Recall the International Military Tribunal (“IMT”) created at the end of the Second World War. The IMT fits within the definition of an ad hoc tribunal. Multiple countries created the tribunal in response to a particular conflict (the Second World War), and it had the purpose of punishing individuals suspected of committing international crimes during that conflict.

During the 1990s, there was a resurgence of ad hoc tribunals in the aftermath of two major conflicts. In 1993, the United Nations created the International Criminal Tribunal for Yugoslavia (“ICTY”).54 The UN created an international court that had the power to prosecute international crimes committed during the civil war in the former Yugoslavia. Just one year later in 1994, the United Nations authorized the creation of the International Criminal Tribunal for Rwanda (“ICTR”) to prosecute individuals involved in the .55 During the conflict, the ethnic Hutus targeted and killed over 800,000 people, the vast majority of whom where ethnic Tutsis.

Over the last 20 years, both the ICTY and ICTR have prosecuted military and political leaders for international crimes. The ICTY had the power to bring charges against Slobodan Milošević , the former leader of Yugoslavia.56 Ultimately, the ICTY never had the opportunity to fully prosecute Milošević before he died in . And the ICTR issued the world’s first-ever conviction for the crime of genocide.57 These tribunals initially had the benefit of possessing the support of the international community.

However, both tribunals have also been subject to a number of criticisms. First, both international courts have been criticized for operating at too slow a pace. Second, both international courts have been extremely costly.58 Each of the tribunals has cost more than $ 1 billion dollars.59

53Sean D. Murphy, Principles of International Law, 2nd ed., (St. Paul: West, 2012), 424. 54 Carter et. al, 1184. 55 Carter et. al, 1187. 56 Ibid., 1186-1187. 57 Sean D. Murphy, Principles of International Law, 2nd ed., (St. Paul: West, 2012), 423. 58 Ibid. 59 Bardos, Gordon N. World Affairs, "Trials and Tribulations: Politics as Justice at the ICTY." Last modified September/October 2013. Accessed October 12, 2014. http://www.nytimes.com/2006/04/17/arts/television/17stan.html?pagewanted=print.

18 Third, and most importantly, critics have argued that the ICTY and ICTR did a poor job of engaging the survivors of the respective tragedies.60 The tribunals took place in separate countries from where the conflicts occurred. The ICTY trial was held in , which is located in the . And the ICTR trial was held in Arusha, . The geographic distance meant that most survivors were unable to attend proceedings. Because the trials were not broadcast on television in the home countries, most survivors had little awareness of the tribunals’ activities. Adding to the issue of the relevance to survivors’ daily lives, the tribunals employed very different systems of justice than what the survivors used in their communities. For example, before the genocide in Rwanda, many disputes were resolved through community- operated courts known as Gacaca courts. Following the genocide, many survivors did not focus on the ICTR and instead relied on the Gacaca courts, which turned to hearing conflict-related claims. These courts allowed many victims to directly address those accused of crimes. And, while it took a long time, this system heard hundreds of thousands of claims against those who were involved in the genocide.61

4.3 Prosecution in “Hybrid” Tribunals A third option for prosecuting international crimes is to try cases before a hybrid (or mixed) tribunal. These tribunals are called mixed tribunals because they mix elements of a domestic court system with elements of the international criminal justice system.62 For example, a hybrid tribunal often has foreign judges working alongside domestic judges.63 It may also “apply domestic law that has been reformed to accord with international standards.”64 Ideally, a hybrid tribunal attempts to combine the best parts of domestic courts with the best parts of international courts.

This hybrid model can produce important benefits. Ideally, the benefits of domestic courts and international courts would be combined. For example, the domestic country would still feel a sense of control over its proceedings. At the same time, the international lawyers and judges could provide expertise that the country may lack. Further, the two groups could learn from each other. “International actors have the opportunity to gain greater sensitivity to local issues, local culture, and local approaches to justice at the same time that local actors can learn from international actors.” 65 While there are important benefits to using a hybrid tribunal, it is important to also consider the potential drawbacks. One major problem is that the elements of the domestic criminal law system will conflict with the elements of the international criminal law system. For example, if

60 Samantha Power, A Problem from Hell: America and the Age of Genocide, (New York: Basic Books, 2013), 496- 497. 61 BBC, "Rwanda "gacaca" courts genocide courts finish work." Last modified June 18, 2012. Accessed February 9, 2014. http://www.bbc.co.uk/news/world-africa-18490348. 62 Laura A. Dickinson, "The Promise of Hybrid Courts," American Journal of International Law (2003): 306. 63 Ibid. 64 Ibid. 65 Laura A. Dickinson, "The Promise of Hybrid Courts," American Journal of International Law (2003): 307.

19 there is a difference between international criminal law and the country’s domestic criminal law on a particular topic, it could create confusion. Further, imagine another possible conflict. Imagine that there is a court with both international judges and domestic judges. It is very possible that the international judges gain more power than the domestic judges. Or the opposite situation could occur. Either way, there is potential for conflict between the two sets of judges. It may be difficult to find the right balance between the domestic elements and the international elements.

Even though hybrid tribunals are a relatively recent phenomenon, there have already been a few countries who have used them to prosecute international crimes. For example, the Special Tribunal for Lebanon (“STL”) was created in 2007 to address the of the country’s former Prime Minister and the death of 22 other individuals.66 The STL, which is still ongoing, has both domestic and international elements. It is applying domestic Lebanese criminal law on terrorism.67 However, it also has an “international character” because it includes international judges and the trial proceedings are taking place in the Netherlands.68

4.4 Prosecution in the International Criminal Court

As discussed above, international criminal prosecutions began in the second half of the 20th century. During this time, domestic courts, ad hoc tribunals, and hybrid tribunals were responsible for prosecuting international crimes. In part because there were so many different ways to prosecute international crimes, there were some countries that wanted a single court dedicated to handling international crimes. These countries recently succeeded, as countries came together to create a court known as the International Criminal Court (“ICC”). The ICC is a permanent international court designed to hear cases involving the four major international crimes. In this section, we will explore the development and structures of the ICC. We will close the section by analyzing Iraq’s relationship to the ICC.

4.4.1 History of the ICC In 1998, representatives from 160 of the world’s countries gathered in Rome, Italy to discuss the possibility of a permanent international court. After five weeks of negotiations, the settled on the content of a treaty known as the “Rome Statute.” The Rome Statute vote was held on July 17, 2002, and 120 nations voted in favor of passing the treaty. There were 7 nations (Iraq, the United States, China, , Qatar, Libya, and Yemen) that voted against the Rome Statute and 21 nations who decided not to vote at all.69 The Rome Statute stated that the

66 Special Tribunal for Lebanon, "Creation of the STL." Last modified December 24, 2012. Accessed February 9, 2014. http://www.stl-tsl.org/en/about-the-stl/creation-of-the-stl. 67 Anthony Cassese, International Criminal Law, 2nd ed., (New York: Oxford University Press, 2008), 332. 68 Special Tribunal for Lebanon, "Creation of the STL." Last modified December 24, 2012. Accessed February 9, 2014. http://www.stl-tsl.org/en/about-the-stl/creation-of-the-stl. 69 Coalition for the International Criminal Court, "History of the ICC: Rome Conference." Accessed February 9, 2014. http://www.iccnow.org/?mod=rome.

20 International Criminal Court would be allowed to start hearing cases beginning on July 1, 2002.70 The court had the power to hear cases about crimes that occurred after that date.

The Rome Statute represented a major moment in history of international criminal law. Think back to how the Nazis were prosecuted for international crimes in 1945. Less than 60 years later, countries from all over the world created an international criminal court. This unique model for the prosecution of international crimes has a number of interesting features. It has also been subject to meaningful criticisms. We will explore both in this section.

4.4.2 Major Features of the ICC The Rome Statute provides important guidelines for the types of cases that can be heard by the ICC and how a case can be brought before the ICC.

Recall the major international crimes that we discussed earlier in this chapter: crime of aggression, war crimes, crime against humanity, and genocide. The ICC can hear allegations about all of these crimes. Specifically, Article 6 (Genocide), Article 7 (Crimes against Humanity), and Article 8 (War Crimes) of the Rome Statute provide the legal definitions of those crimes.71 As mentioned earlier, the Rome Statute did not provide a definition for the crime of aggression. A definition for the crime of aggression was provided in 2010, and the ICC will have to make the decision whether to hear crime of aggression cases in 2017.72

Imagine that the President of France is suspected of having committed war crimes and crimes against humanity. Even though France signed the Rome Statute, the president could not automatically be brought before the ICC. Instead, there are other important requirements that must be met before a trial can start at the ICC. First, the ICC can only hear cases when it has the power to do so. Articles 12 and 13 of the Rome Statute outline that one of the following conditions must be met before the ICC has the power to hear the case:

o The state where the alleged crime was committed is party to the Rome Statute o The person suspected of committing the crime is a national of a party to the Rome Statute73 Articles 12 and 13 demonstrate that the ICC must consider where the crime allegedly took place, and it must consider which country the alleged criminal is from.

Short Exercise

70 Coalition for the International Criminal Court, "About the Court." Accessed February 9, 2014. http://www.iccnow.org/?mod=rome. 71 Rome Statute of the International Criminal Court, Arts. 6-8, July 17, 1998, 2187 U.N.T.S. 3. 72 International Criminal Court , "The Review Conference of the Rome Statute." Accessed February 9, 2014. http://www.kampala.icc-cpi.info/. 73 Rome Statute, Arts. 12-13.

21 1. Take a moment to remember that both Iraq and the United States are not parties to the Rome Statute. Now imagine that a United States soldier is accused of committing a war crime against an Iraqi national in Iraq. Does the International Criminal Court have the power to consider this allegation? Before answering the question, review the conditions (directly above) stated in Articles 12 and 13 of the Rome Statute that must be met for the ICC to hear a case.

Now let us consider a different scenario. Imagine that a soldier from England is accused of committing war crimes in Iraq. Also consider that England signed the Rome Statute. Could this charge be brought before the ICC? The answer is yes because the English soldier is from a country that has signed the Rome Statute. In fact, a complaint filed in 2014 alleges that British military and political officials committed war crimes in Iraq. The complaint accused British officials of torturing and sexually assaulting Iraqis, as well as conducting mock executions. It is now the ICC’s decision whether it wants to investigate the case and bring charges against the accused individuals.74

In addition meeting the requirements under Article 12 or 13, the International Criminal Court must meet other requirements. Most importantly, the court must meet the requirement of complementarity. Complementarity means that the ICC should only hear a case when the “State is unwilling or unable genuinely to carry out the investigation or prosecution” of the alleged crimes.75 In other words, the ICC is supposed to be a last option. The court is only supposed to hear cases that have not been properly addressed by domestic courts.

4.4.3 Criticism of the ICC While some had hoped that the ICC would be the solution to prosecuting international crimes, many have been disappointed with the results from the first 12 years. So far, there have been two main criticisms of the ICC. First, critics have noted the ICC’s slow pace. The ICC has only successfully convicted one individual.76 Second, critics argue that the ICC has only targeted leaders from African countries. Since the ICC officially was formed in 2002, the court has heard 21 cases from eight countries: , Mali, Ivory Coast, the Central African Republic, the Democratic Republic of Congo, Sudan, , and Libya.77 In fact, the has called on its member countries to protest any future investigations against current African leaders.78

74 Jonathan Owen. The Independent, "Exclusive: Devastating dossier on 'abuse' by UK forces in Iraq goes to International Criminal Court." Last modified January 12, 2014. Accessed February 9, 2014. http://www.independent.co.uk/news/uk/politics/exclusive-devastating-dossier-on-abuse-by-uk-forces-in-iraq-goes- to-international-criminal-court-9053735.html. 75 Rome Statute, Art. 17. 76 Ibid. 77 International Criminal Court, “Situations and cases.” Accessed October 12, 2014. http://www.icc- cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx 78Al Jazeera, "African Union urges united stand against ICC." Last modified February 01, 2014. Accessed February 9, 2014. http://www.aljazeera.com/news/africa/2014/02/african-union-urges-united-stand-against-icc- 20142111727645567.html.

22 As the ICC continues to develop, it will be interesting to see whether the court begins to hear cases from all over the world. At the moment, Jordan and Tunisia are the only two countries from the Middle East and North Africa region to be members of the ICC.79 While many countries in the Middle East have applied international criminal law in other settings, there has been a reluctance to join the ICC.

Iraq’s own decision about whether or not to join the International Criminal Court provides an important case study.

4.4.4 Iraq’s Experience with the Rome Statute Iraq’s decision whether or not to sign the Rome Statute has an interesting history, and is a decision that is still relevant today. When the Rome Statute was first passed in 1998, the Iraqi government voted against joining the International Criminal Court. In February 2005, the Iraqi interim government signed the Rome Statute and became a party to the International Criminal Court. However, just two weeks later, the Iraqi Council of Ministers reconsidered and decided to withdraw Iraq from the Rome Statute.80 These actions have led to a debate within Iraq regarding whether or not Iraq should be a party to the Rome Statute.

There are many who believe that Iraq should sign the Rome Statute. Support for signing the Rome Statute is particularly high among Kurds. Reflecting on the international crimes committed under the Saddam Hussein presidency, many Kurds believe that signing the Rome Statute would help to prevent future atrocities. For example, the KRG Minister of Martyrs and Anfal Affairs, Aram Ahmed, said, “This is the right way to build a new Iraq and to employ all possible means to prevent the recurrence of such crimes in the future.”81

The support for Iraq to join the International Criminal Court has continued in recent years. In 2011, “the Parliament of the Kurdistan region issued a petition requesting Iraq’s Federal Government to join the ICC.” 82And in 2013, “the second conference on Kurds and the International Criminal Court” was held in Erbil.83 There has also been international pressure on Iraq to join the International Criminal Court. For example, the “Coalition for the International Criminal Court” sent a letter to Prime Minister Al-Maliki in December 2013 asking for Iraq to become a party to the ICC. The letter stated that the decision to join the ICC would “ensure

79 Coalition for the International Criminal Court, "Middle East and North Africa." Accessed February 9, 2014. http://www.iccnow.org/?mod=region&idureg=13. 80 Coalition for the International Criminal Court, "Iraq." Accessed February 9, 2014. http://www.iccnow.org/?mod=country&iduct=80. 81 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. 82 Leila Hanafi and Brigitte Suhr. Coalition for the International Criminal Court, "Re: Prospects of Ratification of the Rome Statute of the International Criminal Court." Last modified December 18, 2013. Accessed February 9, 2014. http://www.iccnow.org/documents/URC_Letter_Iraq_(EN).pdf. 83 Kuwait News Agency, "Kurdish int'l conf. on genocide against Kurds opens in Erbil." Last modified March 14, 2013. Accessed February 9, 2014. http://www.unpo.org/article/15647.

23 Iraq’s commitment to the Court and advance the principles of democracy, good governance, justice, and the rule of law in the region.”84

There are some scholars, however, who oppose the existence of the ICC and believe countries should resist joining. These opponents argue that the ICC is too slow and inefficient.85 Further, they worry that decisions to prosecute individuals under the ICC are politically motivated.86 In other words, they are concerned that the ICC does not actually represent international interests or evenly apply legal principles, but rather it is simply a reflection of a few governments’ preferences. Some opponents of the ICC also think that the ICC has too much power.87

Discussion Question 1. Recall that under Articles 12 and 13, the ICC may have power over an individual from a country that has not signed the ICC. For example, if an Iraqi citizen is accused of committing a war crime in England, it is possible for him to be tried at the ICC because England has signed the Rome Statute. Do you agree that the ICC should have this power? Or do you disagree? Why?

4.5 Alternative to Prosecution So far in this section we have studied the different ways that individuals can be prosecuted for committing international crimes. It is natural that societies want to punish those who have committed mass atrocities. However, a court proceeding is not the only way to respond to these crimes. When faced with a legacy of international crimes, some societies have chosen not to prosecute former leaders. In this section, we will explore two main alternatives to prosecutions: 1) truth commissions and 2) reparations.

4.5.1 Truth Commissions A is an organization or a group tasked with the goal of discovering and exposing government wrongdoing from the past. Truth commissions are most common when a new political leader assumes power after a period of intense conflict in a society or country.

A comparison to prosecutions and an example will help us better understand truth commissions. Truth commissions, like prosecutions, focus on exposing government wrongdoing. However, they accomplish this goal in very different ways. A criminal prosecution is mainly focused on punishing the individual who is responsible for the crimes in question. A truth commission, however, is focused on providing support to the victims and helping a society move past these

84 Leila Hanafi and Brigitte Suhr. Coalition for the International Criminal Court, "Re: Prospects of Ratification of the Rome Statute of the International Criminal Court." Last modified December 18, 2013. Accessed February 9, 2014. http://www.iccnow.org/documents/URC_Letter_Iraq_(EN).pdf. 85 Laura Barnett, The International Criminal Court History and Role, 26, http://www.parl.gc.ca/content/lop/researchpublications/prb0211-e.pdf. 86 Ibid., 22. 87 Ibid., 25-26.

24 crimes. In fact, one main criticism of truth commissions is that they allow past leaders to go unpunished for their crimes.

The most famous example of a truth commission occurred in South Africa, starting in 1996. South Africa had just emerged from a brutal system known as . Under apartheid, the South African government promoted a system of racial discrimination and separation in all aspects of life. People who were black, Indian, or “coloured” had fewer legal and economic rights, could only live in certain segregated areas, and were provided with state services inferior to those received by white people. During apartheid, the oppressive state also routinely used violence against non-white South Africans. In the aftermath of this terrible system, a new South African leadership had the choice of how to deal with the abuses of the past.88

Instead of focusing on prosecutions, the South African government formed a Truth and Reconciliation Commission. This commission was designed to recognize the abuses that had taken place under the old regime, and also to help the country heal and reunite. There were many interesting features of the commission. The commission organized “public hearings” all over South Africa. These hearings allowed victims to share their experiences and help regain their dignity after decades of being treated poorly.89 The commission also extensively investigated the abuses that had taken place from 1960 to 1994 and created a record of these abuses. 90 The commission also had the power to grant amnesty to individuals who had previously committed abuses. If an individual was granted amnesty, he or she could not be legally prosecuted at a later date. Thus, as its name indicates, the commission was focused on reconciling the former oppressors and the formerly oppressed, and it was focused on rebuilding a divided society.91 The South African model has largely been recognized as a success. In fact, at least forty truth commissions have been held around the world92, though some have been more successful than others in terms of redressing past wrongs.

4.5.2 Reparations Reparations are an additional way to recognize the suffering of victims and survivors of mass atrocities. In the context of international criminal law, reparations are state acts designed to remedy past abuse of victims. Reparations can take many forms. In some cases, a new government will financially compensate victims for abuses they suffered during a prior government’s leadership. In other cases, a government may provide “social services such as healthcare or education” to victims of human rights abuses.93 Other times, a government may

88 Audrey R. Chapman, and Hugo van der Mere, Truth and Reconciliation in South Africa: Did the TRC deliver? , (Philadelphia: University of Pennsylvania Press, 2008), 6. 89 Ibid., 8. 90 Ibid., 95. 91 Ibid., 293. 92 International Center for Transitional Justice, "Truth and Memory." Accessed February 9, 2014. http://ictj.org/our- work/transitional-justice-issues/truth-and-memory. 93 International Center for Transitional Justice, "Reparations." Accessed February 9, 2014. https://ictj.org/our- work/transitional-justice-issues/reparations.

25 issue a formal apology to a group of victims or survivors of past crimes. It should be noted that, in many cases, victims and survivors fight for years to be recognized and to be granted reparations.

It is also important to realize that reparations may be part of an existing trial proceeding. For example, the International Criminal Court recognized that victims of a conflict in the Democratic Republic of the Congo were entitled to reparations.94 The court ruled that the victims had a right to reparations. However, reparations can also be completely separate from any trial. For example, reparations may be given to victims as part of a truth commission process.

In reality, reparations remain largely aspirational in the international context. While the ICC, tribunals, and truth commissions often support the idea of reparations, it has proven difficult to actually provide them to victims. There are a number of difficulties in providing reparations, including inadequate funding, difficulty with administering a reparations program, and a lack of political will to ensure that victims are fully compensated.

5. THE IRAQI HIGH CRIMINAL COURT: A DOMESTIC COURT DESIGNED TO PROSECUTE INTERNATIONAL CRIMES We now have explored the basic ways that a country can address allegations of international crimes. Some countries choose to prosecute these crimes in domestic courts. Other times, countries may go before an international tribunal or seek the help of the International Criminal Court. In other cases, a country may avoid criminal prosecutions and focus on providing justice for the victims of a tragedy. As we have analyzed, there are positives and negatives of each of these approaches.

In this section, we will discuss how Iraq chose to confront the brutal crimes in its past. In particular, we will explore the country’s prosecution of Saddam Hussein and members of the former Ba’ath Party regime before the Iraqi High Criminal Court (also referred to as the “Iraqi High Tribunal,” “Iraqi Tribunal,” and the “Tribunal”). In doing so, we will reflect on how Iraq’s recent experience has contributed to the development of international criminal law.

5.1 The Origins of the Tribunal After the 2003 U.S.-led invasion into Iraq, and the subsequent fall of Saddam Hussein’s regime, a transitional government was put in place to rule the country. This temporary governing body

94 AFP, "ICC orders reparations for DR Congo warlord victims." Last modified August 07, 2012. Accessed February 9, 2014. http://www.google.com/hostednews/afp/article/ALeqM5g6kXaT4O_gevs5CAmhhm1FYgW6HQ?docId=CNG.4ae5 b8c34a9eeaaf73df397a93eba09a.e61.

26 was called the Coalitional Provisional Authority (“CPA”). In one of its first acts in July 2003, the CPA created the “Iraqi Governing Council,” which was to act as the country’s .95

On December 10, 2003, the CPA issued Order Number 48, which was titled “ of Authority Regarding an Iraqi Special Tribunal.”96 This order directed the Iraqi Governing Council to create a special court to prosecute crimes that had occurred during the previous regime. Specifically, Order Number 48 stated that the “Governing Council is hereby authorized to establish an Iraqi Special Tribunal (the “Tribunal”) to try Iraqi nationals or residents of Iraq accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws….”97 The order later outlined that the Tribunal shall be an “independent entity” and that it could focus on crimes committed between “July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq, or elsewhere.”98

Just three days after Order Number 48 was issued, Saddam Hussein was captured on December 13, 2003.99 After the formal transfer of from the United States back to the Iraqi authorities, the Iraqi Transitional National Assembly adopted Iraqi Law No. 10 (“Tribunal Statute” or “Statute”). This Statute officially established the “Iraqi Higher Criminal Court” and confirmed the details that were laid out in Order Number 48.100 This Tribunal ultimately tried Saddam Hussein and other former leaders of the Ba’ath party beginning in October 2005.

5.2 The Features of the Tribunal In addition to establishing the court, the Tribunal Statute detailed the basic procedures, structure, and composition of the Tribunal. In this section, we will look at the most important and interesting features of the Tribunal Statute.

Note how the Tribunal is a domestic court that is designed to prosecute international crimes. In fact, some have referred to the Tribunal as an “internationalized domestic court.”101 We will examine why the Iraqi government chose to create a domestic court, and then we will examine how the Tribunal also incorporates features of the international criminal law system.

95 "Iraqi Governing Council ." Accessed February 10, 2014.http://www.globalsecurity.org/military/world/iraq/igc.htm. 96 Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal, (Durham: Carolina Academic Press, 2009 ), 57. 97 Delegation of Authority Regarding an Iraqi Special Tribunal, Section I, Coalition Provisional Order No. 48 (10 December 2003), http://www.loc.gov/law/help/hussein/docs/CoalitionProvisionalAuthorityOrder48en.pdf. 98 Ibid., Art. 10. 99 E. van Heughten , and P.A. van Laar , The Iraqi Special Tribunal for Crimes Against Humanity , (Nimejen: Wolf Legal Publishers , 2011), 29. 100 Iraqi High Criminal Court Law, Article 1, Law No. 10 of 2005 (18 October 2005) [hereinafter Tribunal Statute]. 101 Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal, (Durham: Carolina Academic Press, 2009 ), 58.

27 5.2.1 The Tribunal’s Domestic Elements The first noteworthy feature of the Tribunal is that it is a domestic court created by Iraqi authorities. As noted earlier, there has been a trend towards prosecuting international crimes before international bodies such as hybrid tribunals or the ICC. The first question we must ask then is: why did the Iraqi government choose to create a domestic court to prosecute (mostly) international crimes?

There are a few reasons for this decision. Most importantly, the claims against Saddam Hussein and other leaders could not have been brought before the ICC. Recall that Iraq is not a member of the ICC. Plus, remember that the Rome Statute states that the ICC can only hear claims about issues taking place after 2002.102 Since the Iraqi government was interested in investigating and prosecuting crimes that began in 1968, the ICC was not a viable option.

The Iraqi government also decided to forego the international tribunal or hybrid model that was discussed above. Formal international involvement was not a possibility in this case largely because of a dispute over the death penalty. Iraqi domestic criminal law allows for the death penalty as a punishment, yet European countries refused to be part of an international criminal tribunal where a conviction could result in the death penalty. The Iraqi leadership was unwilling to proceed without the death penalty as an option.103

As a result, the Iraqi leadership chose the domestic court model. As discussed above, there are benefits to prosecuting international crimes in domestic courts. First, the authority for a domestic court comes directly from the Iraqi government. In this case, the Iraqi Governing Council formed the court. This has the benefit of allowing the Iraqi government to retain control over the proceedings (and to minimize the influence of international actors). In fact, “polls taken in Iraq indicated the Iraqi people themselves overwhelmingly expressed the view that Saddam Hussein and other former leaders of the Regime should be tried in Iraq by Iraqi judges.”104 Instead of relying on foreigners, all of the Tribunal’s investigators and judges were native Iraqis.105

The Tribunal’s domestic court model also provided other benefits. Most importantly, its domestic nature allowed the Iraqi government to give the Tribunal power to hear cases about serious violations of Iraqi domestic law in addition to the violations of international law. Article 14 of the Tribunal Statute lists the 3 domestic crimes that the Tribunal has the power to prosecute. Specifically, it states that the Tribunal has power to hear allegations related to 1) manipulating the , 2) squandering national resources, and 3) the use of armed force

102 Ibid., 58. 103 Zakia Afrin, Transitional Authority in Iraq: Legitimacy, Governance and Potential Contribution to Progressive Development of International Law, (Lake Mary: Vandeplas, 2009), 80. 104 Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal, (Durham: Carolina Academic Press, 2009 ), 58. 105 Ibid., 59.

28 against an Arab country.106 These are 3 crimes that are specifically outlawed under Iraqi law. The inclusion of Article 14 in the Tribunal Statute shows that the Iraqi government felt seriously about the violations of domestic law that occurred under Saddam Hussein’s presidency. The prosecution of these crimes signaled that that violations of these important domestic laws by future leaders would not be tolerated.

Finally, the domestic court model allowed the Iraqi government to retain control over how it chose to issue punishments. Article 24 of the Tribunal Statute states, “The penalties that shall be imposed by the Tribunal shall be those prescribed by Iraqi Law….”107 This is particularly important because Iraqi domestic law allows individuals to be punished by death for certain crimes. Saddam Hussein had been tried before an international or hybrid tribunal, then the death penalty would not have a possibility. The Iraqi government wanted to preserve the option of sentencing the Tribunal’s defendants to death.

5.2.2 The Tribunal’s International Elements The Tribunal Statute created a domestic Iraqi court that was concerned with the crimes of Iraqi nationals and residents. Yet at the same time, the Tribunal had the power to hear cases about international crimes. In other words, even though the Tribunal is a domestic court, it was focused on applying international criminal law.

The Tribunal Statute incorporated elements of international criminal law. First, the Statute makes clear that the Tribunal has power to hear about allegations of genocide (Article 11), crimes against humanity (Article 12), and war crimes (Article 13). 108 As you know, these are international crimes. The Statute then states that when interpreting Articles 11-13, the Tribunal “may resort to the relevant decisions of international criminal courts.”109 It is clear from this statement that the Tribunal was to consult international criminal law standards and in determining whether or not members of the Ba’ath party had committed the alleged crimes. Thus, the Iraqi government empowered a domestic court to consider international crimes.

5.3 The Tribunal’s Prosecution of Saddam Hussein and Other Former Leaders With this background knowledge, let us now examine the specific cases that came before the Tribunal. The Tribunal completed two major investigations: the Dujail trial and the Al-Anfal campaign. We will analyze the results from these two historically significant trials.

106 Michael A. Newton, The Iraqi High Criminal Court: controversy and contributions, International Review of the Red Cross, June 2006, 408, http://www.icrc.org/eng/assets/files/other/irrc_862_newton.pdf. 107 Tribunal Statute, Art. 24. 108 Tribunal Statute, Arts. 11-13. 109 Tribunal Statute, Art. 17.

29 5.3.1 The Al-Dujail Trial On October 19, 2005, the Al-Dujail trial began at the Tribunal courthouse in Baghdad. The start of the trial was an important moment, as it was first case to be heard by the Tribunal. In addition to Saddam Hussein, there were 7 other defendants. The Tribunal charged the defendants with killing 148 individuals in what is now referred to as the Dujail Massacre. After a failed assassination attempt on Saddam Hussein in the town of Dujail in 1982, Saddam Hussein and his co-defendants detained hundreds of individuals from Dujail. After being held for two years, 148 men and boys were referred to trial. They were pressured to confess to the crime of treason, after which the court sentenced them to the death penalty.110

The Tribunal charged Saddam Hussein and his seven co-defendants with crimes against humanity for their roles in the execution of those 148 individuals. As you can imagine, the trial of Iraq’s former leader generated significant controversy. Unfortunately, the trial was undermined by threats and violence, including the deaths of three of the lawyers who represented Saddam Hussein. After multiple delays and controversies, Saddam Hussein was ultimately found guilty of committing crimes against humanity. The was delivered on November 5, 2006, and he was sentenced to death for the killings of the 148 individuals as well as for forcible deportation and torture.111

For Further Consideration After the Dujail trial concluded, there were strong reactions to the guilty verdict for Saddam Hussein. Prime Minister Nouri al-Maliki stated, “The justice handed out to him is a response to the call from thousands of sons and sisters of those sentenced and executed by Saddam….”112 Within Iraq, many supported the decision and some Saddam supporters protested the decision.113

5.3.2 The Al-Anfal Trial In August 2006, a separate trial for Saddam Hussein and 6 other defendants began before the Tribunal. The seven defendants were charged with three international crimes: genocide, war crimes, and crimes against humanity. The allegations in this case stemmed from the Anfal campaign, which lasted roughly from February to September 1988. During this time, the Iraqi government, led by Saddam Hussein and Ali Hassan al-Majid, conducted targeted attacks against the Kurdish population.

The attacks, which were conducted through ground offensives, aerial bombings, forced , and chemical weapons, targeted the civilian population. Tens of thousands of

110 Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal, (Durham: Carolina Academic Press, 2009), 57 111 Ibid., 76-82. 112 BBC, "Saddam sentence: Reaction in quotes." Last modified November 05, 2006. Accessed February 10, 2014. http://news.bbc.co.uk/2/hi/middle_east/6118298.stm. 113 Al Jazeera, "Saddam Hussein senteced to hang ." Last modified November 05, 2006. Accessed February 10, 2014. http://www.aljazeera.com/archive/2006/11/200849155416141647.html.

30 Kurds were killed, and approximately 4,000 villages in Iraqi Kurdistan were destroyed.114 A year before the Tribunal heard the case, a court in the Netherlands had punished a Dutch trader for selling chemical weapons to the Hussein regime. In that decision, the Dutch court ruled that it was “legally and convincingly proven that the Kurdish population meets the requirement under the Genocide Conventions as an ethnic group. The court has no other conclusion than these attacks were committed with the intent to destroy the Kurdish population of Iraq.”115

Saddam Hussein was executed as punishment from the Dujail case during the Al-Anfal case on December 30, 2006. When the Al-Anfal trial resumed in January 2007, the Tribunal dropped Saddam Hussein as a defendant and proceeded against the remaining 6 defendants. On June 23, 2007, three of the defendants (including Ali Hassan al-Majid) were sentenced to death, and two other defendants were sentenced to life in prison for committing genocide during the Anfal campaign.116

The Tribunal’s decision in the Al-Anfal case provided a number of important benefits. At a basic level, the decision recognized the terrible crimes that occurred and acknowledged the victims, families, and survivors who had suffered because of the attacks. The decision also served the of truth-telling. This means that a full accounting of the crimes took place because of the Tribunal. The evidence-gathering process of the Tribunal produced a written account of the Ba’ath Army’s intentional targeting and destruction of the Kurdish people. This record can be accessed by future generations who seek to know the history of their people and their country. The two major by the Tribunal set an important for those who wish to move towards a more peaceful Iraq. Even beyond Iraq, the Tribunal has value. Its verdict can serve as an example for those, around the world, who seek to punish other political and military leaders who have committed international crimes.

5.4 Reflections on and Criticisms of the Tribunal The Iraqi Tribunal has potential to be an important precedent for international criminal law, especially because this area of law is developing so quickly. But in addition to the benefits of the Tribunal, it is also important to reflect on its shortcomings. Only by reviewing the criticisms of the Tribunal can future prosecutions learn to avoid similar mistakes. This section will consider the major critiques of the Iraqi Tribunal.

Since it was first established, the Iraqi Tribunal has generated a significant amount of controversy. Many of the criticisms have centered on the Tribunal’s legitimacy. In other words,

114 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. 115 Kamaran Kurdi. Kurdish Media, "International community needs to rethink and address Kurdish question." Last modified December 28 , 2005. Accessed February 9, 2014. http://kurdmedia.com/article.aspx?id=10979. 116 Al Jazeera, "'Chemical Ali' Sentenced to Hang." Accessed February 9, 2014. http://www.aljazeera.com/news/middleeast/2009/03/200932134915907626.html.

31 critics of the Tribunal have doubted whether the Tribunal could serve as a neutral and fair judicial body.

One of the main criticisms of the Tribunal is that there was too much involvement by the United States. At a general level, these critics argue that the United States’ involvement lessened Iraq’s ability to control its own trials. After all, the trials were based in Iraq and centered on crimes that were committed by Iraqi leaders against their own people. Specifically, these critics note that the United States contributed a large financial amount to the operation of the Tribunal. The Tribunal also relied on the United States for administrative support. More importantly, these critics believe that the United States interfered with some of the Tribunal’s major decisions.117 For example, the Tribunal was only granted the power to hear allegations about Iraqi nationals and residents. These critics would prefer that the Tribunal also had the power to hear cases about non-Iraqi individuals, such as United States troops, who are accused of war crimes in Iraq. Additionally, there have also been allegations that the United States Embassy attempted to delay the execution of Sunni military figures after the decision in the Dujail trial. As reported, the United States government feared the executions would worsen Sunni-Shiite relations.118

Similarly, some critics questioned the independence of the Tribunal because they doubt that former opponents of the Ba’ath party would be able to give the former Ba’ath leaders a fair trial. Others have objected to the involvement by the Iraqi Prime Minister. There were reports that the Iraqi government interfered with the Tribunal by replacing some of the judges.119 It is likely that these critics would have preferred an independent international court to conduct the trials.

There were a few other criticisms that centered on the execution of the Tribunal. First, some observers “criticized the Dujail case on the grounds that the crimes against civilians were not of a scale comparable with other violations under Ba’athist rule.” 120 Other observers wanted international legal experts to be given a larger role during the prosecution. And, as noted earlier, some international lawyers opposed the decision to allow the death sentence to be a punishment. Many of these criticisms are subject to debate. It is unquestioned, however, that the Tribunal was negatively affected by all of its surrounding violence.

Discussion Questions

117 Michael A. Newton, The Iraqi High Criminal Court: controversy and contributions, International Review of the Red Cross, June 2006, 404, http://www.icrc.org/eng/assets/files/other/irrc_862_newton.pdf. 118 CNN, "Top Iraqi Source: U.S. tried to delay execution." Last modified January 01, 2007 . Accessed February 9, 2014. http://www.cnn.com/2007/WORLD/meast/01/01/saddam.execution/. 119 Amit R. Paley. The Washington Post, "Government Ousts in Hussein Trial." Last modified September 20, 2006. Accessed February 9, 2014. http://www.washingtonpost.com/wp- dyn/content/article/2006/09/19/AR2006091901204.html. 120 Michael A. Newton, The Iraqi High Criminal Court: controversy and contributions, International Review of the Red Cross, June 2006, 424, http://www.icrc.org/eng/assets/files/other/irrc_862_newton.pdf.

32 1. After reading these criticisms, what changes would you have made to the structure and/or operation of the Iraqi Tribunal? 2. Do you think that it would have been better to prosecute the crimes before an international tribunal?

6. CONCLUSION As Iraq’s experience demonstrates, the field of international criminal law is one of the fastest changing areas in the law. As you will recall from Part II of this chapter, international criminal law has developed rapidly in the period since the Second World War. After the Nazis’ systematic killing of Europe’s Jewish population, the international community confronted the challenge of developing an appropriate response. The international community’s decision to prosecute Nazi leaders remains the central moment in the development of modern international criminal law.

Over the last 70 years, the international criminal law system has developed significantly. International criminal law has evolved through experience, through treaties, and through judicial decisions. The international criminal law system has changed over time, in part, in an effort to achieve different goals, including the restoration of the rule of law, accountability, reconciliation, and justice for victims.

As we explored in Part III of this chapter, the international community has agreed upon a set of substantive international crimes that are distinct from domestic crimes. These crimes – which include the crime of aggression, war crimes, crimes against humanity, and genocide – are often committed in the context of an international conflict and are generally more serious than domestic crimes. There are various ways to respond to these international crimes, as we explored in Part IV. Some countries have chosen to prosecute international crimes in their own courts while others have decided to include international experts or work with international tribunals. More recently, the relatively new International Criminal Court has heard cases of alleged international crimes. Prosecutions, however, are not the only way to address international crimes: states have also established truth commissions and provided reparations in efforts to achieve some degree of justice for victims.

Of course, there is no single “right” way to address international crimes. There are positives and negatives of each approach. As we addressed in Part V, the Iraqi High Criminal Court handled the prosecutions of Saddam Hussein and other former of Ba’ath party leaders for violations of international criminal law. While these prosecutions were ultimately successful, we also reviewed the major criticisms of the Iraqi Tribunal. As Iraq’s recent experience demonstrates, the international criminal law system is complex and constantly changing.

33 Over the last 20 years in particular, the rate of development of international criminal law has been incredible. Countries from across the world have formed an international community that is dedicated to punishing those who have caused millions to suffer. Despite the differences between countries like Rwanda and Iraq, both nations have recognized the power that international criminal law has to help move their countries beyond the crimes of the past. In this sense, international criminal law seems to have achieved a great amount of success.

However, as this chapter has discussed, the international criminal law system is far from perfect. Even though the international community has adopted the idea of international criminal law, there are major disputes on how it should be implemented. As a result, there are many variations of international criminal law. And these variations matter. The prosecution of international crimes before a domestic court, like in Iraq, is far different than the prosecution of these crimes before the ICC. Given these very different approaches, it is interesting to wonder how international criminal law will change in the next 20 years. Perhaps all international crimes will be tried before a well-established ICC. Or maybe countries will continue to experiment with international criminal law in order to meet the specific needs of their societies.

Before we continue our study of international law, take a moment to reflect on what we learned in this chapter. In many ways, international criminal law is a unique area of international law. After all, it mostly focuses on the punishment of individuals rather than the responsibilities of states. Yet, international criminal law does overlap with many other fields of international law. As we continue to examine this topic, see what connections you can make between this chapter and others.

Suggested Answers to Discussion Questions and Short Exercises

34 Suggested Answer (to question on pg. 5) There are many possible answers to this question. Notably, the prosecution of the Nazis at the end of the Second World War led to the development of international criminal law. Further, the international community has strengthened an incredible amount over the last 60 years. Countries have frequently interacted with one another through international organizations like the United Nations. Similarly, an answer might note the phenomenon of . Specifically, countries have increasingly shared ideas with one another. These trends suggest that the development of international criminal law is correlated with the rise of international law more generally. Further, because of technological developments like the Internet, people around the world have gained the power to learn about human rights abuses around the world. A natural reaction to learning about these crimes is to demand some sort of accountability.

Suggested Answer (to question on pg. 7) Sample Answer: I would prioritize the rule of law over all of the other goals. While accountability and victim justice are both important, they are primarily focused on events of the past. The rule of law is most important because it is critical to the success of a society moving forward. Without a strong rule of law in a society, that society is at risk of enduring another conflict. (*There is no correct answer to this question; rather, it is designed to foster critical thinking skills.)

Suggested Answer (to question on pg. 11) Yes, Ivan is guilty of committing a war crime. Ivan was allowed to capture the soldier from Turkey, as that is a common occurrence in war. However, Ivan cannot torture the Turkish soldier. Torture is always a violation of international law. Therefore, Ivan committed a war crime when he tortured the Turkish soldier.

Suggested Answer (to question on pg. 14) Possible Arguments for Including Political Parties in Definition * Failure to include political groups will allow leaders to target those groups without facing serious consequences. These leaders will not be punished for committing serious crimes. * The repression and violent targeting of political groups is a common occurrence. It is a serious problem that needs to be addressed.

35 * Currently, it can be difficult to determine whether the targeting of a group is genocide. A broader definition of genocide will help to reduce this confusion. Possible Arguments for Excluding Political Parties in Definition * It may be difficult to determine whether or not a group of people are members of the same political party. Political party membership changes over time. It is easier to tell if a group of people belong to the same national, ethnic, racial, or religious group. * The international community should not become involved in political disputes within countries. This would set a bad precedent for allowing the international community to interfere with the internal affairs of particular countries. * Many political groups are already divided along national, ethnic, racial, or religious lines. Therefore, there is no need to expand the definition of genocide to include political groups.

Suggested Answer (to question on pg. 21) Likely no. First, the alleged crime was committed by an individual from the United States. Since the United States has not signed the Rome Statute, the ICC would not automatically have power over this person. Second, the crime allegedly took place in Iraq. Since Iraq has not signed the Rome Statute, the ICC would not have power to hear this case.

Suggested Answer (to question on pg. 23) There is no “right” answer to this question. The question is designed to have students think about the possible tradeoff between accountability for international crimes and the power of the ICC. Possible answers will be along the lines of: yes, I agree with this power because it is important for the ICC to be able to prosecute war crimes, regardless of who they are committed by. The prosecution of international crimes should not simply depend on whether or not a country has signed the Rome Statute. OR: No, I disagree with the ICC having this power. Treaties should only bind countries (and people) when they choose to sign them. Otherwise, the ICC and the international community will have too much power.

Suggested Answer (to question on pg. 32) There is truly no right answer to this question, but I imagine it could provoke a very interesting discussion. I am guessing that many students might suggest that an international criminal tribunal would have been better because it would have lessened conflict between various groups. At the

36 same time, I imagine that the Tribunal could also be a source of pride. Some students may view the guilty verdicts as of the Tribunal’s success.

Glossary (to be integrated with other chapters)

Accountability: the principle that people are responsible for the actions they take

37

Ad hoc tribunal: a tribunal that is created for the specific purpose of prosecuting international crimes in response to a particular conflict

Complementarity: the concept that an international court will only hear cases about crimes that domestic courts have not investigated or prosecuted

Crime of aggression: an international crime that punishes military or political leaders who aggressively start wars in violations of international law

Crimes against humanity: an international crime that prohibits the widespread and systematic attacks against civilian populations, including acts such as murder, rape, and torture

Genocide: an international crime that prohibits the deliberately killing or harming of a group of people who share the same nationality, religion, race, or ethnicity.

Human Rights: the freedoms that all humans have by virtue of being human

Hybrid/Mixed Tribunal: a type of tribunal or court that mixes elements of a domestic court system with elements of the international criminal justice system

International Criminal Court: a permanent international court that is designed to hear cases involving the four major international crimes

International criminal law: the set of rules and structures that address crimes which are recognized as particularly heinous, massive in scope, or international in nature

International crimes: violations of international law that are universally recognized to be particularly serious

Reparations: state acts that are designed to remedy past abuse of victims

Rule of law: the principle that laws should be respected in a society, and that they should apply equally to all people

Transitional justice: the options that a country has when it attempts to address and move past major violations from a past conflict

Truth commission: an organization or a group that is tasked with the goal of discovering and exposing government wrongdoing from the past

War crimes: an international crime that punishes grave breaches of international law that take place during times of war

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