A comprehensive view
Of the IHT
Contents click here to download file
1. Preface .
2. IHT Statute & Amendment.
3. Reasons behind establishing the IHT.
4. IHT Nature.
5. IHT area of Jurisdiction.
6. IHT Legitimacy.
7. IHT in the provision 95th of constitution of republic of Iraq.
8. Conclusion .
Preface
Tribunals of this type, which are established after the collapse of a certain regime and to trial the figures and the important leaders of such regime, is a part of the transitional justice and organizations. Usually they are temporary and they are over when their assigned mission in the trials is over. Beside those tribunals, there are committees of fact finding and compensations. In addition, in Iraq there is the commission of debaathification. In this comprehensive view, our main interest would be the IHT as a part of the process of transitional justice in Iraq after April 2003.
After WW1 and the defeat of the Ottoman Empire, the state of Iraq in its modern borders came to existence. Prince Faisel son of Hussein, known as Faisel the First became king of Iraq. After his rein, the fist Iraqi constitution was established in 1925. This constitution is widely known as the Iraqi basic statute of 1925.
The royalty continued up to 1958. For many years the royalty rule was challenged by several coup d’etat and military revolts. of these revolts are : the revolt of Baker Sedky in 1936, the revolt of Rasheed Aaly Algailany and group in 1941 , and the revolt of 1958 which led to the end of the rule of royalty in Iraq .this revolt was in july 14th ,1958 and led by General Abdulkarim Qasim . The king Faisel son of Ghazy (known as Faisel the Second) was killed with many members of his family and relatives at the time.
Since then Iraq became a republic according to the interim constitution of 1958. Many acts of violence took place and assassinations of rivals of the new authority. The processes of changes were accompanied with campaigns of quick executions. Those matters are historical facts and undeniable.
Life developed and the international community was obliged to fulfill its duties towards its members. It started to eliminates the acts of revenge and to enforce law and the made its efforts punish the perpetrators leaders on legal bases after proving there crimes to achieve
justice and to send a legal message to hold back and inhibit all those who might use their position in the government to abuse their own people. In other words and according to the international community principle any one who commits crimes will not be free and will be punished. The punishment is in this life and according to law. So now let’s talk about the IHT statute no. 10 /2005.
Historical view of the IHT statute:
The IHT was established according to statute no.1/2003 and was published in the Iraqi official newspaper (al-Waqaa'e) issue no.3980 by the Iraqi governing council. This council was authorized to establish the Iraqi special tribunal for crimes against humanity (at that time) according to the order 48 of the CPA administrator.
This statute was valid till it was replaced by statute no.10/2005. The new statute was ratified by the Iraqi national assembly according to article 33 of the statute of the state administration for the transitional period approved by the presidency council.
This statute was also published in the Iraqi official newspaper (al-Waqaa'e) issue no.4006 in October 18th, 2005. According to article 37 of this new statute, statute no.1 /2003 of the IST was abolished and so are procedures rules of according to article 16 of the abolished statute and were replaced by the new rules. In other words the previous statute was completely void and was replaced by the new statute.
The observer of the IHT statute, the old and the new one can easily notice that there are general common rules which are sometimes identical. For example the criminal law is the same in both statutes with one addition in one paragraph in article 14 of the IHT statute, which is paragraph no.4? This paragraph gave more authority to the IHT .This paragraph states: if the tribunal finds lack of the certain element of any crime of the crimes stated in articles no.11- 12 – 13 of this statute, and if it was proved that this act consist a crime punishable according to penal law or any other penal law at the time of perpetration, the tribunal then is authorized to look in the case.
The setup of the tribunal is the same and so are its authorities except that the director general became a manager , and the spokesman according to article 7 paragraph no.1 should be one of the judges or the prosecutors.( a matter needs stop at) . There are changes in the authorities of the presidency council concerning nomination and changing position according to paragraph no.4 of the law. Beside few amendments which can be noticed by any legal specialist.
In my opinion, the most important points in the new statute are the following:
1. The new article no.16 of the new statute considered the rules of procedures are part of law, completing it. In article 16 of the former statute, the rules of procedures and evidence were prepared by IHT president and are adopted by a decision from a majority of the judges.
2. Article no.22 of the new statute gave the right to the relatives of the Iraqi victims and the wronged to raise a civil َّ lawsuit in the IHT to sue the defendants. This text is new and wasn't in the former statute. It includes a lot of details which is not proper to discuss in this comprehensive view.
3. Article no.27 of the new statute concerning commutation or executing the punishment, which allows no authority to ask for pardon or commutation.
The Establishment of the IHT and its Nature
Although we already discussed the former and the new IHT statutes. Still there are many questions in the mind of any person about the IHT. For example:
1. Why IHT was established? Why it has its own statute? If those acts are international crimes, then we have the international court. If they are considered local crimes, then we have well known honorable Iraqi courts. Then again, why IHT was established?
2. What is its nature?
3. Is it a regular or special tribunal?
To answer these questions we need to raise others like:
1. Has Iraq ratified the basic statute of Rome?
2. Is there a court according to Iraqi laws can cover the provincial specialization of all over Iraq, and able to investigate in all the committed crimes?
3. Is it possible to assemble huge numbers of complainants without any legal barrier or technical difficulties?
Well, Iraq so far has not ratified the basic statute of Rome. Moreover, the Iraqi penal code no.111 of 1969 and the penal court principles law no.23 of 1971 make a clear reference to the spatial specialization of the crimes. Beside the limits mentioned in articles 53&132 of the penal court principles law .these matters might resemble many legal and technical problems that couldn’t be avoided regarding the size and number of lawsuits . Furthermore, the committed crimes show certain method and policy carried out by the accused against the offended or the victims as they are described in the new statute. So, to avoid the question of the spatial specialization, the need for a legal & judicial body arisen. This body takes the task of applying the rules and texts addressing
the international crimes by a national form. I believe that this is a unique experience of its kind deserves all praise especially it shows the Iraqi and Arab legal capabilities in this regard. It is lawfully works on conducting investigations and lawful trials aiming at achieving justice through revising a period in the history of Iraq in a right way not blindly. In other words, all those lawfully proved with evidences to be involved in crimes against the people of Iraq will be trialed and punished according to law.
It also will create peace to the minds of the Iraqis as they will feel that one who commits a crime will be hold responsible in front of law. No one would be above law or beyond its reach. This will pave the way for a law philosophy to elevate society above the level of personal vengeance.
Concerning IHT nature:
We earlier stated that it is not an international tribunal, as it was not established by UN Security Council or according to international criminal code and the humanitarian law. It’s a local regular tribunal established on a national statute. The judges and prosecutors in this tribunal are Iraqis.
The Iraqi High Judicial Council nominated the judges. They were assigned according to the planned mechanism whether in the abolished statute or the new one. After the nomination they are assigned by the presidency council following the approval of the ministers council. When the tribunal concludes its cases, the judges will be transferred to work in the federal courts according to article 6 /paragraph 3 of the IHT statute. This indicates it is a pure Iraqi tribunal.
The question whether it is a regular or special tribunal, the Iraqi constitution which is valid now refers in article 95 to the prohibition of establishing special or exceptional courts. Here we need to discuss the tribunal from many prospects. They are:
1. The title.
2. The procedures.
3. The members.
4. The legal source.
The title:
The Iraqi High Tribunal. If some are arguing that this is a matter of formalities and if it is not special then it is exceptional. The answer is that the procedures in this tribunal of other tribunals. Concerning its investigations, trials, and cassations, it is unlike the special courts in which the decisions are final.
Members of the IHT:
All the members of the IHT, the judges and the prosecutors, were working in the High Judicial Council or honorable lawyers known for their honesty, legal knowledge and experience. The nomination of these personnel was by the High Judicial Council.
The legal source:
The statute of the state administration of the transitional period and the valid Iraqi constitution, both state clearly in their articles the establishment of the IHT.
Jurisdiction of the IHT:
When we discuss the jurisdiction of the IHT , we must look into all its branches, which are :
-Time
-Place
-Personnel
- Jurisdiction
Time:
Basically the criminal legislations do not cover the past. This principle is well-known in the criminal law .it is called "the principle of retroactivity of laws". This is included in the Iraqi penal codeno.111 of 1969, article no.2 paragraph 1. According to article no.1of IHT statute the IHT is concerned with the crimes committed since July 17th, 1968 to May 1st, 2003. Statute no.1 of 2003 was issued in 2003 and statute no.10 was issued in 2005. Still those statutes did not violate the principle of retroactivity, as the crimes described in articles no.11-12-13-14 of the statute were valid in Iraq since the fifties of the last century and fully legal. For example, article no.11 of the statute concerning the crime of genocide, which is recognized internationally in international convention of 1948. Iraq ratified this convention in January 20th, 1959. Doing this meant that this convention is a part of the Iraqi laws, and Iraq is committed to its provisions specially 1 & 2.
In regard to article 13 concerning the crimes of war which are grand violations to Geneva Convention of 1949, we find that Iraq has ratified this convention too. That was in February 12th ,1956 .this means Iraq as a member in this convention is committed to follow the provisions in it as they became part of the Iraqi law , and the perpetrators must be punished .
Article no.12 concerned crimes against humanity
, the legal source of these crimes is the international customs as there is not any international convention organizes its rules definitely. Still its internationally agreed that the crimes described in article 12 of the IHT. It is agreed that the international customs are so-called "international customs code".
Article 14 consist of four paragraphs, the first three defines the crimes listed in the article. Those crimes are found in the Iraqi code. The 1st paragraph concerned with interference with the judiciary and affecting it, which is a crime described in the forth section of the penal code. The last tow paragraphs are concerned with the statute no.7 of 1958, which was published in issue no.8 in August 9th, 1958 which is valid to date.
Therefore, it is obvious that the IHT statute is never contradicting the principle of retroactivity as it contains originally criminal acts, described as being criminal in the international conventions ratified by Iraq since the fifties of the last century. Or they are described as being criminal in the statute no.7 1958. In other words, the IHT assembled those laws and rules in one statute.
Place:
If we looked at the rules in article 1/paragraph 2, we find that law provided that the accused should be in Iraq to be under the jurisdiction of the tribunal. It further states (in Iraq or any other region.).
Basically the statute of a state is dedicated for the crimes committed within the region of the state, and all that within the power of the state (e.g. sky, territorial waters, liners, airplanes…etc.)
This is found in the Iraqi Penal Code, articles 6-7. In IHT statute, the legislator expanded the jurisdiction of the tribunal. Still this limited to those who were living in Iraq. So, more specifically the crime if was committed in Iraq or somewhere else, and this crime is within the jurisdiction of the tribunal, then the IHT can try the case.
Personnel:
The jurisdiction of the IHT is limited to try the natural person only and not the artificial person like companies. This is unlike the penal code/article 80, which states the responsibility of the artificial person. The IHT statute provides that the person be an Iraqi, or a person who is living in Iraq. Otherwise, the IHT statute is not to apply to other cases. The IHT statute provides clearly in article 1/paragraph 2 " the IHT jurisdiction is to apply to any natural person wither he is an Iraqi or non-Iraqi person residing in Iraq ".
Jurisdiction:
The Jurisdiction of the IHT is limited to a group of crimes described in article 1/paragraph 2. Some of the crimes are international crimes, like genocide, crimes against humanity and war crimes. Others consist of violation of the Iraqi laws, and these are detailed in article 14 of the statute. The article is of four paragraphs. The first is dedicated to the interference in judiciary and affecting it. The second is concerned with waste of national wealth (Article 2/Paragraph G Of The Penal Law Of Conspirators Of The Homeland And The Corruptors Of The Rule Of State no.7 of 1958 .This paragraph states the "spending expenses not necessary for the projects or doesn’t match its real value, spending on unreal or unnecessary projects, or wasting official funds).
Paragraph 3 for the taking advantage of official position and following policies that might lead to arm conflict with Arab states (article no.7 of 1958). Article1 of code no.7 consist of 2 paragraphs. Paragraph A states, "Imposing policies against the welfare of the state, drawing the homeland close to war or making it a field of war.
Paragraph B concerned with the use of armed force against Arab states , the threat to use such force , provoking foreign states to threaten the safety of Arab states ,conspire against them to overthrow its regime and providing funds for such purpose ,providing shelter for conspirators, interference in its internal affairs , insinuation its leader , defaming and calling them names in public.
Article 14/paragraph 4, is a proceeding which did not deal with a specific crime. It rather was concerned with the case in which a certain crime is not listed in articles 11, 12, 13, and the committed act is a crime punishable in the Iraqi penal code or any other penal code, then it within the IHT jurisdiction to try the case. The legislator expanded the jurisdiction of the IHT. In other words, the legislator defined the jurisdiction of the IHT in articles 11-12-13, and then expanded it in article 14 of the statute, specifically in paragraph 4.
Legitimacy of the IHT
The IHT is purely a national tribunal and this is beyond discussion. It was established by an Iraqi statute, not by a resolution from the UN Security Council. Many questions arisen doubting the legitimacy of the IHT. If we examine carefully the chronology of the IHT, we should find these facts:
1. The IHT statute of the crimes against humanity no.1 /2003 was issued by a resolution from the Iraqi governing council and by the authority of the CPA administrator, his order no.48 published in the Iraqi official newspaper (al-Waqaa'e) issue no.3980.
2. The state administration statute of the transitional period stated the establishment of the IHT in a private section which is section 7, article 48.
3. After the democratic elections of the Iraqi National Assembly, in which the people of Iraq chosen their representative in a democratic process by the attestation of the international community, and in accordance to articles 30-33 of the state administration statute, the new statute of the IHT ,no.10of 2005, was issued and ratified by the Iraqi National Assembly.
4. After the publication of the Iraqi constitution, which was appealed to the people of Iraq, in the Iraqi official newspaper (al-Waqaa'e) issue no.4012 in December 28th, 2005. We find that in this constitution, specifically article 134 is for the establishment of IHT.
After all these examples we need only to refer that the IHT in accordance with its statute and the constitution of the republic of Iraq if legitimate and legal. Its existence is not contradicting any provisions of the constitution, as the IHT is a regular Iraqi tribunal, established in accordance with an independent statute and its own procedures.
The IHT reflects with the other courts of Iraqi High Judiciary Council the good reputation of the Iraqi judiciary, which is the successor of Hamuraby Code and the Orthodox Caliphs.
Conclusion
The IHT is one of the positive reflections of the evolution of judiciary process in Iraq , specially that it’s the first time in the Arab world a tribunal established in according to the international standards in the field of investigation or trial . It deals with international crime in a national level, especially if we took in consideration that those crimes are described in the international law and ratified by Iraq .those crimes were not invented by the IHT.
The community is developing but at the same time crime is developing too. I believe and wish at the same time that those crimes to be studied in the colleges of law and to be part of the educational system in the Iraqi Judiciary Institute.
I pray Allah to grant success to all
