The Iraqi High Tribunal (IHT), formerly the Iraqi Special Tribunal and sometimes referred to as the Supreme Iraqi Criminal Tribunal, is a body established under Iraqi national law to try Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes or other serious crimes committed between 1968 and 2003. It organized the trial of Saddam Hussein and other members of his Ba'ath Party regime.
The Court was set up by a specific Statute issued under the Coalition Provisional Authority and now reaffirmed under the jurisdiction of the Iraqi Interim Government. In 2005 it was renamed after the constitution established that "Special or exceptional courts may not be established." The Transitional Administrative Law (TAL) promulgated by the Iraq Governing Council before the restoration of Iraqi sovereignty preserves and continues the Iraq Special Tribunal Statute in force and effect.
The Court was responsible for the trial of Saddam Hussein, Ali Hassan al-Majid (also known as "Chemical Ali"), former Vice President Taha Yassin Ramadan, former deputy Prime Minister Tariq Aziz and other former senior officials in the deposed Ba'athist regime.
The Tribunal follows the inquisitorial system which is standard in Iraq and uses investigative judges. Trials are heard before a panel of the five Trial Judges, who conduct hearings, pronounce judgements and impose the sentences, without using a jury. There is also a separate Appeals Chamber, with nine judges, a prosecutions department and an administrative department. The statute of the court allows for international judges to be appointed on the request of the court and approval of the Council of Ministers, but none have yet been appointed. Judges were initially appointed to a five-year term by the Iraqi Governing Council, in consultation with the Iraqi Judicial Council.
For security reasons, the names of the judges were not initially released, but five judges' identities have since been disclosed:
The tribunal has jurisdiction over any Iraqi national or resident accused of the following crimes:
These crimes must have been committed:
The rights of the accused are set out in the Tribunal's statute and include the presumption of innocence, equality before the tribunal, a public trial without undue delay, appointing counsel of your own choosing, calling witnesses and the right to remain silent.
The tribunal must impose sentences in line with existing Iraqi law, which includes the death penalty. For crimes such as crimes against humanity which have no counterpart in Iraqi law, the statute says the trial chamber should take into consideration the gravity of the offense and sentences issued by international criminal tribunals.
From October 2005 till November 5, 2006, the tribunal had been trying eight people who were accused of crimes against humanity in a massacre of 148 Shiites in Dujail. The defendants included:
At Saddam Hussein's initial arraignment he was also accused of:
On November 5, 2006, Saddam Hussein was found guilty of all charges relating to the Dujail massacre and was sentenced to death by hanging. He received an automatic appeal. However, the appeal was rejected and the guilty sentence was upheld. It was ordered that he be executed within 30 days and he was executed by hanging on December 30, 2006.
The Special Tribunal investigated the crimes of the Al-Anfal Campaign in 1988 and during the 1991 uprising. The judges issued arrest warrants against these persons for crimes against Kurds in 1988:
The judges also issued arrest warrants against these persons for crimes in 1991:
In late June the judges had investigated Tariq Aziz concerning the events of 1991.
The judges questioned these persons on various events:
On June 24, 2007, Ali Hassan al-Majid, Sultan Hashim Ahmed al-Tay, and Hussein Rashid Mohammed were sentenced to hang for their role in the Al-Anfal Campaign against the Kurds. Two other former regime officials, Saber Abd Al-Aziz Aldori and Farhan Mutlaq Saleh were sentenced to life in prison. All charges against former governor of Mosul Taher Tawfiq Al-ani were dropped because of insufficient evidence.
Al-Majid would receive three more death sentences for other crimes: one for the 1991 suppression of a Shi'a uprising along with Abdul-Ghani Abdul Ghafur on December 2, 2008; one for the 1999 crackdown in the assassination of Grand Ayatollah Mohammad al-Sadr on March 2, 2009; and lastly on January 17, 2010 for the gassing of the Kurds in 1988. Afterwards, he was hanged over a week later on January 25.
The tribunal was initially led by Salem Chalabi a former exile and relative of Ahmed Chalabi. Critics pointed to Salem's lack of experience and close ties to Iraqi dissidents, questioning US motives in his appointment. However, as his uncle Ahmed Chalabi fell from US favour in August 2004, warrants were issued for their arrest while they were both out of Iraq. Some saw this as an attempt to remove them from Iraqi politics. On September 19, 2004, The New York Times quoted Iraqi interim Prime Minister Iyad Allawi as saying that he had received Salem's resignation. Speculation immediately started on who would replace Salem; names mentioned include Taleb al-Zubaidi and Naim al-Oukaili. On October 4, 2004, the Iraqi National Council approved the nomination of Judge Ammar al-Bakri, who became the new Administrator of the Special Tribunal - but was ousted in turn. The nine Appellate Judges have selected an eminent Iraqi jurist as President, who is the Tribunal's leader. Tribunal procedures are governed by the Rules of Procedure and Evidence and the Iraqi Criminal Procedural Code of 1971.
Many international human-rights law groups have opposed the Tribunal; they had wished to see international (non-Iraqi) lawyers empaneled on the Tribunal, and they also object to the availability of the death penalty under Iraqi law.
Other legal groups and the UN have protested that Saddam Hussein should have been arraigned before a UN court, similar to the International Criminal Tribunal for Rwanda in Arusha, Tanzania. Many have said that Saddam should have appeared before the International Criminal Court in The Hague, Netherlands. Some have criticized the United States for playing too great a role in the foundation, financing, and operation of the Tribunal.
The normal principle of international law, however, has been to rely first on the domestic national court capability of a country before turning to the extraordinary creation of international tribunals. Some Iraqis as well view the Tribunal as a matter of pride and sovereignty with the view that they can govern and judge themselves. International legal experts argued for Saddam to be tried outside the country as it was believed that he would not receive a fair trial under inexperienced judges who had been long standing enemies of him and his regime. Following the re-introduction of capital punishment in August 2004, the Iraqi interim PM Iyad Allawi gave assurances that he would not interfere with the trial and would accept any court decisions, although some of his comments are open to mis-interpretation: "As for the execution, that is for the court to decide -- so long as a decision is reached impartially and fairly."
According to British journalist Robert Fisk, the judge, Ra'id Juhi, had indicted Moqtada al-Sadr of murder in April 2004, an important event in the growing Iraqi insurgency. After working as a translator, Juhi was appointed by Paul Bremer. Juhi, 33, is a Shia Muslim and had served for a decade as a judge under Saddam Hussein.
Although officials had asked for the judge's name to be kept secret, allegedly to protect him from retribution, it was widely reported in the Arabic press, including newspapers in Baghdad. The only Western newspaper to refuse this kind of self-censorship was the British The Independent and was criticised by Tony Blair's government as a result. Ra'id Juhi had also given interviews and posed for pictures in the context of the Moqtada al-Sadr indictment. Juhi was appointed Tribunal spokesperson in late 2005, even though he continues his duties as Chief Investigative Judge.
The Iraqi Special Tribunal also contains an official English translation of the Iraqi Criminal and Civil Code, which Paul Bremer decreed would be the operating legal code of Iraq until it is changed or modified by the Iraqi government.
One emerging, critical issue to the mission of the Iraqi High Tribunal is that of women's human rights. Women occupy a uniquely vulnerable position in conflict, and the Iraqi High Tribunal is charged with prosecuting gender-based crimes within the Hussein regime. Historically, rape has proven a prolific problem in conflict, and in many Mid-East countries, including Iraq, such phenomena as honor crimes (the killing of rape victims by male family members in order to restore honor to the family name) inhibited gender justice. The Judges of the Iraqi High Tribunal have taken a pioneering interest in gender justice, requesting a training in fall of 2006 on international law tenets that protect women's human rights. Attorney Janet Benshoof of the Global Justice Center was among the legal authorities stressing the importance of upholding women's rights in future Iraqi High Tribunal decisions. The Judges proved very interested in protecting women's human rights in their future decisions, and have requested an amicus (friend of the court) brief from concerned attorneys and women's civil society organizations regarding future gender jurisprudence.
Article 37, The Statute of the Iraqi Special Tribunal for Crimes Against Humanity, Law No. 1 of 2003, and the Rules of Procedure issued under Article 16 thereof shall be abolished with effect from the date of the coming into force of this Law