Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein

By Bassiouni, M. Cherif; Hanna, Michael Wahid | Case Western Reserve Journal of International Law, Spring 2007 | Go to article overview

Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein


Bassiouni, M. Cherif, Hanna, Michael Wahid, Case Western Reserve Journal of International Law


INTRODUCTION
I.   THE LEGAL AND POLITICAL STRUCTURES IN IRAQ FROM MARCH 19, 20
     TO OCTOBER 15, 2005

II.  THE IRAQI SPECIAL TRIBUNAL
     A. The Establishment of the Iraqi Special Tribunal
     B. Legitimacy of the Iraqi Special Tribunal's Establishment

III. THE IRAQI HIGH CRIMINAL COURT STATUTE
     A. The Adoption of the Iraqi High Criminal Court Statute
     B. The Iraqi High Criminal Court as a Component of the Iraqi
        Legal System
     C. Positive Revisions in the Iraqi High Criminal Court Statute
        1. Language
        2. Title of the tribunal
        3. Appointment of Non-Iraqi "Experts" and "Observers"
        4. Providing Legal Basis for Procedures for Removal of Judges
           a Prosecutors
        5. Qualifications for Appointments of Judges and Public
           Prosecutors
        6. Providing Legal Basis for the Appointment of Non-Lawyer
           to the IHCC
        7. Deletion of Provision for Removal of Tribunal's President
     D. Technical Drafting Errors in the Iraqi High Criminal Court
        Statute
     E. Problematic Revisions in the Iraqi High Criminal Court Statute
        1. Procedures for Appointment of Judges and Prosecutors
        2. Compensation of Judges, Investigative Judges and
           Prosecutors
        3. Transfer of Judges and Prosecutors
        4. Revision of Article 12(First) Defining Crimes
           Against Humanity
     F. Statutory Shortcomings Inherited from the Iraqi Special
        Tribunal
        1. The Jurisdictional Gap and the Lack of a Status of Forces
           Agreement
        2. Ba'ath Party Membership Disqualification
        3. Transfer of Cases to the IHCC
        4. Substantive Issues of Legality
           a. Genocide, War Crimes, and Crimes Against Humanity
           b. Other Crimes Under Iraqi Law
           c. Establishing Penalties
        5. Due Process Guarantees
        6. "Exceptional" Nature of the Tribunal

ARTICLE I. IV. A COMPARATIVE HISTORICAL PERSPECTIVE

CONCLUSION

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 selected to preside over the initial hearing held in a specially designed courtroom in the U.S. military headquarters for Iraq, Camp Victory. (1) 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 carefully 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 legal infrastructure that would later undertake and support the much-anticipated and scrutinized al-Dujail (3) and al-Anfal (4) trials of Hussein and other former high-level Ba'athist leaders was still in the process of being organized, these subtle and conflicting signs during the first public glimpse of court proceedings were indicative of the tensions inherent in the ill-advised attempt to blend two distinct legal systems in a single specialized institution. The shortcomings of this blending process bedeviled the work of the Iraqi High Criminal Court (IHCC), (5) the successor of the Iraqi Special Tribunal (IST). (6)

These shortcomings do not in any way diminish the valid justifications for prosecuting Hussein and other former high-level Ba'athist leaders. …

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