The Iraqi High Tribunal and Rule of Law: Challenges

The panel was convened at 10:45 a.m., Thursday, March 30, by its chair, Rosa Ehrenreich Brooks of the University of Virginia School of Law, who introduced the panelists: Mark Drumbl of the Washington & Lee University School of Law: Greg Kehoe, Advisor to the Iraqi Special Tribunal; and Outi Korhonen of the Universite Libre de Bruxelles. * The panel was convened at 10:45 a.m., Thursday, March 30, by its chair, Rosa Ehrenreich Brooks of the University of Virginia School of Law, who introduced the panelists: Mark Drumbl of the Washington & Lee University School of Law; Greg Kehoe, Advisor to theIraqi Special Tribunal; and Outi Korhonen of the Universite Libre de Bruxelles. * THE IRAQI HIGH TRIBUNAL AND RULE OF LAW: CHALLENGES My remarks address challenges faced by the Iraqi High Tribunal (or Iraqi High Criminal Court, depending on the translation--I will stick with tribunal). I locate these challenges in the tribunal's prosecution of Saddam Hussein. However, they spill over to other defendants and to transitional justice/rule of law initiatives in Iraq at large. Some of these challenges are general to all prosecutions of leaders and senior officials for atrocity; some are specific to the situation in Iraq. All challenges remain fluid, insofar as the tribunal has just begun its work. The tribunal was established on December 10, 2003, and approved by the Iraqi Transitional National Assembly on August 11, 2005. Its purpose is to prosecute high-level members of the former Iraqi regime. The tribunal's statute, drafted in 2003, was amended in 2005 and approved in October 2005. (1) The tribunal is empowered to prosecute genocide, crimes against humanity, war crimes, and certain violations of Iraqi law committed between July 17, 1968, and May 1, 2003. It adheres to a civil law model with investigative judges. The tribunal is to have primacy over all other Iraqi courts with respect to the extraordinary international crimes within its jurisdiction. Its personnel are Iraqi. In its interpretation of the crimes within its jurisdiction, the tribunal may resort to relevant decisions of international criminal courts. (2) The tribunal shall also turn for guidance to the sentences of international criminal courts when it comes to affixing punishment for the extraordinary international crimes within its jurisdiction. (3) In addition to sentences previously issued by other international courts, the tribunal is to take into account factors such as the gravity of the crime and the individual circumstances of the convicted person. However, punishment is that prescribed by domestic Iraqi law, which includes the death penalty. The tribunal's Rules of Procedure and Evidence permit guilty pleas. The rules mandate the trial chamber when sentencing offenders to take into consideration aggravating and mitigating circumstances. Only one specific example is given, this being a mitigating factor: substantial cooperation. (4) Why prosecute and punish perpetrators of mass atrocity? A review of the criminology and penology of international criminal law suggests that prosecution and punishment satisfies a number of aspirations, including: retribution, general deterrence, reconciliation, the expression of the importance of law, and the authentication of a historical narrative. The October 2005 version of the Statute of the Iraqi High Tribunal identifies its "justifying reasons" in a postscript as follows: * to expose the crimes committed in Iraq; * to lay down rules and punishments to condemn the perpetrators after a fair trial; * to form a high criminal court: * to reveal the truth, agonies, and injustice: * to protect the rights of Iraqis; and * "alleviating injustice and for demonstrating heaven's justice as envisaged by the Almighty God." The "justifying reasons" therefore encompass all the goals generally placed upon the shoulders of atrocity trials, although lean more toward truth-telling, capacity-building, and expressivism than is the case with other institutions. …