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The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein, 39 Case W Case Western Reserve Journal of International Law Volume 39 Issue 1 2006-2007 2007 Ceding the High Ground: The rI aqi High Criminal Court Statute and the Trial of Saddam Hussein M. Cherif Bassiouni Michael Wahid Hanna Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Recommended Citation M. Cherif Bassiouni and Michael Wahid Hanna, Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein, 39 Case W. Res. J. Int'l L. 21 (2007) Available at: https://scholarlycommons.law.case.edu/jil/vol39/iss1/3 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CEDING THE HIGH GROUND: THE IRAQI HIGH CRIMINAL COURT STATUTE AND THE TRIAL OF SADDAM HUSSEIN t M. CherifBassiouni* & Michael Wahid Hanna INTRODUCTION ........................................................................................ 22 I. THE LEGAL AND POLITICAL STRUCTURES IN IRAQ FROM MARCH 19,2003 TO OCTOBER 15, 2005 .........................................................................27 II. THE IRAQI SPECIAL TRIBUNAL ............................................................ 35 A. The Establishment of the Iraqi Special Tribunal.......................... 35 B. Legitimacy of the Iraqi Special Tribunal'sEstablishment ........... 43 III. THE IRAQI HIGH CRIMINAL COURT STATUTE .................................. 50 A. The Adoption of the Iraqi High Criminal Court Statute ............... 50 B. The IraqiHigh Criminal Court as a Component of the IraqiLegal System .......................................................................................... 54 C. PositiveRevisions in the Iraqi High Criminal Court Statute ..... 55 1. L anguage ............................................................................... 55 2. Title of the tribunal ................................................................. 56 3. Appointment of Non-Iraqi "Experts" and "Observers" ......... 57 4. Providing Legal Basis for Procedures for Removal of Judges and Prosecutors ............................................................................ 59 5. Qualifications for Appointments of Judges and Public Prosecutors ............................................................................ 59 6. Providing Legal Basis for the Appointment of Non-Lawyers to the IH C C ........................................................................... 60 7. Deletion of Provision for Removal of Tribunal's President ....... 61 D. Technical Drafting Errors in the Iraqi High Criminal Court Statute ........................................................................................ 6 1 E. ProblematicRevisions in the Iraqi High Criminal Court Statute .... 62 1. Procedures for Appointment of Judges and Prosecutors ...... 62 2. Compensation of Judges, Investigative Judges and Prosecutors.. 63 3. Transfer of Judges and Prosecutors ........................................ 63 Distinguished Research Professor of Law and President Emeritus, International Human Rights Law Institute, DePaul University College of Law; President, International Institute of Higher Studies in Criminal Sciences (Siracusa, Italy); Honorary President, International Association of Penal Law (Paris, France). t Senior Fellow, International Human Rights Law Institute, DePaul University College of Law. CASE W. RES. J. INT'L L. [Vol. 39:21 4. Revision of Article 12(First) Defining Crimes Against Hum anity ................................................................. 64 F. Statutory Shortcomings Inheritedfrom the Iraqi Special Tribunal.. 65 1. The Jurisdictional Gap and the Lack of a Status of Forces Agreem ent ............................................................................. 65 2. Ba'ath Party Membership Disqualification ............................ 67 3. Transfer of Cases to the IHCC ............................................... 69 4. Substantive Issues of Legality ............................................... 70 a. Genocide, War Crimes, and Crimes Against Humanity ...... 73 b. Other Crimes Under Iraqi Law ........................................ 81 c. Establishing Penalties ...................................................... 82 5. Due Process Guarantees ........................................................ 83 6. "Exceptional" Nature of the Tribunal .................................... 86 ARTICLE I. IV. A COMPARATIVE HISTORICAL PERSPECTIVE .................. 88 C ONCLUSION ........................................................................................... 95 INTRODUCTION On July 1, 2004, Saddam Hussein and eleven of his co-defendants were brought before Ra'id Juhi, an Iraqi investigative judge, who was se- lected to preside over the initial hearing held in a specially designed court- room in the U.S. military headquarters for Iraq, Camp Victory.' Millions of Iraqi, Arab, and international viewers watched the televised proceedings as the defendants were read indictments and instructed to submit a plea to the investigative judge.2 The scene was reminiscent of an American television legal drama. This first appearance of Hussein following his capture by U.S. forces on December 13, 2003 established worldwide the strong and positive impression that a judicial process to reckon with the crimes and atrocities of the former regime had been launched. The Iraqi Criminal Procedure Law was conspicuously displayed on the left side of the table in front of Judge Juhi, symbolically asserting the Iraqi nature of the proceedings and their grounding in Iraqi law, in spite of the fact that the proceedings were care- fully choreographed and carried out in the fashion of an arraignment before a U.S. court, a hearing wholly alien to the Iraqi legal system. While the le- gal infrastructure that would later undertake and support the much- anticipated and scrutinized al-Dujail3 and al-Anfal4 trials of Hussein and 1 For a description of the proceedings, see John F. Bums, Defiant Hussein Rebukes Iraqi Courtfor Trying Him: Tells Judge He is Still Lawfil President,N.Y. TIMES, July 2, 2004, at Al. 2 See id. 3 The al-Dujail trial of former Iraqi leader, Saddam Hussein, and seven former Iraqi offi- cials began on October 19, 2005. See Martin Asser, Opening Salvoes of Saddam Trial, BBC NEWS, http://news.bbc.co.uk/2/hi/middleeast/4356754.stm. The proceedings of the al-Dujail trial were completed on July 27, 2006, and a verdict was announced on November 5, 2006. Timeline: Saddam Hussein Dujail Trial, BBC NEWS, Dec. 4, 2006, http://news.bbc.co.uk/2hi/middleeast/4507568.stm. Saddam Hussein and Barzan al-Tikriti, 2006-2007] CEDING THE HIGH GROUND 23 the former intelligence chief and the half-brother of Hussein, were found guilty of willful killing, forcible deportation and torture and were sentenced to two ten-year prison terms and death by hanging; Awad Hamed al-Bandar, the head of the Revolutionary Court, was found guilty of willful killing and was sentenced to death by hanging; Taha Yassin Ramadan, the former vice president, was found guilty of willful killing, deportation, torture, and other inhumane acts and was sentenced to life imprisonment and to three other prison terms; for- mer Ba'ath party officials from the al-Dujail region, 'Abdallah al-Ruwaid and 'Ali Dayih 'Ali, were found guilty of willful killing and sentenced to fifteen years in prison; former Ba'ath party official from the al-Dujail region, Mizher al-Ruwaid, was found guilty of willful killing and torture and was sentenced to fifteen years' and seven years' imprisonment. These crimes are crimes against humanity under the Iraqi High Criminal Court Statute. See Qanun al-Mahkama al-Jina'iya al-'Iraqiya al-'Uliya [Statute of the Iraqi High Criminal Court], No. 10 art. 19 Oct. 18, 2005, available at www.law.case.edu/saddamtrial/documents/ ISTstatuteofficial-english.pdf (Iraq). The charges against Muhamad 'Azzawi 'Ali,a for- mer Ba'ath party official from the region of al-Dujail, were dismissed due to a lack of evi- dence. For a discussion of the verdicts and the trial, see Marieke Wierda & Miranda Sissons, Dujail: Trial and Error," INT'L CENTER FOR TRANSITIONAL JUST., Nov. 2006, available at http://www.ictj.org/images/content/5/9/597.pdf; HUMAN RIGHTS WATCH, JUDGING DUJAIL: THE FIRST TRIAL BEFORE THE IRAQI HIGH TRIBUNAL (2006), available at http://hrw.org/reports/2006/iraq1106/. The final written judgment of the trial court was re- leased on November 22,2006. al-Mahkama al-Jina'iya al-'Iraqiya al-'Uliya [The Iraqi High Criminal Court], al-Dujail Trial Opinion, available at http://www.iraq- iht.org/ar/doc/finalcour.pdf, translated in Grotian Moment: The Saddam Hussein Trial Blog, English Translation of the Dujail Judgment (Dec. 2006), available at http://www.law.case.edu/saddamtrial/dujail/opinion.asp. An automatic appeal of the verdict was initiated and heard by a nine-judge Cassation Panel, which issued its opinion on Decem- ber 26, 2006. al-Hay'a al-Tamyiziya, al-Mahkama al-Jina'iya al-'Iraqiya al-'Uliya [Cassation Panel, Iraqi High Criminal Court], al-Dujail Final Opinion, available at http://www.iraq- iht.org/ar/doc/ihtco.pdf, translated in Grotian Moment: The Saddam Hussein Trial Blog, Unofficial English Translation of the Dujail Trial IHT Appellate Chamber Opinion (Dec. 2006), available at http://www.law.case.edu/saddamtrial/documents/20070103_dujail
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