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Iraqi Special Tribunal for Crimes Against Humanity
http://www.cpa-iraq.org/audio/20031210_Dec10_Special_Tribunal.htm
THE STATUTE OF THE IRAQI SPECIAL TRIBUNAL
Issued December 10th, 2003
SECTION ONE
The Establishment, Organization and Competence of the Tribunal
PART ONE
Establishment and Competence of the Tribunal
Article 1.
a) A Tribunal is hereby established and shall be known as the "Iraqi Special
Tribunal for Crimes Against Humanity" (the "Tribunal"). The jurisdiction
and functioning of the Tribunal and its associated bodies as defined in
Article 3(b) below shall be governed by the provisions of this Statute. The
Tribunal shall be an independent entity and not associated with any Iraqi
government departments.
b) The Tribunal shall have jurisdiction over any Iraqi national or resident
of Iraq accused of the crimes listed in Articles 11 to 14 below, committed
since July 17, 1968 and up until and including May 1, 2003, in the territory
of the Republic of Iraq or elsewhere, including crimes committed in
connection with Iraq's wars against the Islamic Republic of Iran and the
State of Kuwait. This includes jurisdiction over crimes listed in Articles
12 and 13 committed against the people of Iraq (including its Arabs, Kurds,
Turcomans, Assyrians and other ethnic groups, and its Shi'ites and Sunnis)
whether or not committed in armed conflict.
c) The Tribunal shall only have jurisdiction over natural persons.
Article 2.
The Tribunal shall have its seat in the City of Baghdad, or, following a
written proposal made by the President of the Tribunal, in any other
Governorate in Iraq as determined by the Governing Council or the Successor
Government.
PART TWO
Organization of the Tribunal
Article 3.
a) The Tribunal's judiciary shall consist of the following:
1. one or more Trial Chambers;
2. an Appeals Chamber, which shall have the power to review the
decisions of the Trial Chambers referred to above; and
3. the Tribunal Investigative Judges.
b) The Tribunal will also have a Prosecutions Department.
c). The Tribunal will also have an Administration Department, which shall
provide administrative services to the Tribunal's judiciary and the
Prosecutions Department.
PART THREE
The Trial Chambers and the Appeals Chamber
Article 4.
a) The Trial Chambers shall be composed of permanent independent judges, and
independent reserve judges.
b) Each Trial Chamber shall consist of five permanent judges.
c) (i) The Appeals Chamber shall be composed of nine members. Once
appointed the Appeals Chamber shall select one of its members to fill the
position of President of the Appeals Chamber. No member of any Trial
Chamber can simultaneously be a member of the Appeals Chamber or a Tribunal
Investigative Judge.
(ii) The President of the Appeals Chamber shall also be the President of the
Tribunal and will overview the administrative and financial aspects of the
Tribunal.
d) The Governing Council, if it deems necessary, can appoint non-Iraqi
judges who have experience in the crimes encompassed in this statute, and
who shall be persons of high moral character, impartiality and integrity.
PART FOUR
Qualification and Selection of the Judges
Article 5.
a) The permanent and reserve judges shall be persons of high moral
character, impartiality and integrity who possess the qualifications
required for appointment to the highest judicial offices. In the overall
composition of the Chambers and Articles of the Trial Chambers, due account
shall be taken of the experience of the judges in criminal law and trial
procedures.
b) Iraqi candidates for permanent and reserve judges in the Trial Chambers
need not be serving judges, and could be lawyers and jurists (who should
also have the necessary experience and qualifications). Judges in the
Appeals Chamber must be serving or former judges.
c) Judges are to be nominated and appointed by the Governing Council, after
consultation with the Judicial Council.
d) The permanent judges of each Trial Chamber shall elect a Presiding Judge
from amongst their number, who shall oversee the work of the Trial Chamber
as a whole.
e) The permanent and reserve judges shall be appointed for a term of five
years. The terms and conditions of service shall be those of the judges of
the Iraqi judicial system as set out in the Law Number 160 of 1979 (Judicial
Organization Law), save that matters of compensation shall be set by the
Governing Council in light of the increased risks associated with the
position.
f) (1) A judge shall be disqualified for any of the following reasons:
i. He or she has a criminal record including a felony unless the
felony is a political or false charge made by the Ba'ath Party regime;
ii. He or she has made a material misrepresentation; or
iii. He or she fails to carry out his or her duties without good
reason.
(2) The decision to disqualify a judge shall be taken by the majority of
permanent judges of the Tribunal after conducting appropriate
investigations.
(3) The decision to disqualify the President shall be taken by the
Governing Council.
PART FIVE
The Presidency of the Tribunal
Article 6.
a) The President shall:
(1) chair the proceedings of the Appeals Chamber.
(2) assign the judges to particular Trial Chambers;
(3) assign, from time to time, any reserve judges to a Trial Chamber;
and
(4) have overall responsibility for the administration of the
Tribunal.
b) The President of the Tribunal shall be required to appoint non-Iraqi
nationals to act in advisory capacities or as observers to the Trial
Chambers and to the Appeals Chamber. The role of the non-Iraqi nationals
shall be to provide assistance to the judges with respect to international
law and the experience of similar tribunals (whether international or
otherwise), and to monitor the protection by the Tribunal of general due
process of law standards. In appointing such non-Iraqi experts, the
President of the Tribunal shall be entitled to request assistance from the
international community, including the United Nations.
c) The non-Iraqi advisors and observers referred to in the above paragraph
shall also be persons of high moral character, impartiality and integrity.
In this regard, it would be preferable that such non-Iraqi advisor or
observer shall have the following experience: (i) such person shall have
acted in either a judicial or prosecutorial capacity in his or her
respective country, or (ii) such person shall have experience in
international war crimes trials or tribunals.
PART SIX
Tribunal Investigative Judges
Article 7.
a) The Tribunal Investigative Judges shall be appointed in order to
investigate individuals for the commission of crimes stipulated in Articles
11 to 14.
b) Tribunal Investigative Judges are to be nominated and appointed by the
Governing Council, after consultation with the Judicial Council.
c) There shall be up to twenty permanent Tribunal Investigative Judges, and
up to ten reserve investigative judges.
d) The permanent and reserve investigative judges shall be persons of high
moral character, impartiality and integrity who possess the qualifications
required for appointment to the highest judicial offices. In the selection
of investigative judges, due account shall be taken of the experience of the
judges in criminal law and trial procedures.
e) The Tribunal Investigative Judges shall be headed by a Chief Tribunal
Investigative Judge, who shall be chosen by the Tribunal Investigative
Judges from among them.
f) The Chief Tribunal Investigative Judge shall assign cases to individual
tribunal investigative judges.
g) Each Office of the Tribunal Investigative Judge shall be composed of the
Tribunal Investigative Judge and such other qualified staff as may be
required.
h) In accordance with Iraqi criminal procedure, each Tribunal Investigative
Judge shall have the power to issue subpoenas, arrest warrants and
indictments with respect to individuals that they are investigating.
i) Each Tribunal Investigative Judge may gather evidence from whatever
source he considers suitable.
j) Each Tribunal Investigative Judge shall act independently as a separate
organ of the Tribunal. He or she shall not seek or receive instructions
from any Governmental Department, or from any other source, including the
Governing Council.
k) The decisions or orders of the Tribunal Investigative Judge can be
appealed to the Appeals Chamber within fifteen days of the notification or
deemed notification of the decision.
l) Each Tribunal Investigative Judge shall be appointed for a term of three
years. The terms and conditions of service shall be those of the
investigative judges of the Iraqi judicial system as set out in Law Number
160 of 1979 (Judicial Organization Law), save that matters of compensation
shall be set by the Governing Council in light of the increased risks
associated with the position.
m) (1) Any Tribunal Investigative Judge shall be disqualified for any of the
following reasons:
i) He or she has a criminal record including a felony unless the
felony is a political or false charge made by the Ba'ath Party regime;
ii) He or she has made a material misrepresentation; or
iii) He or she fails to carry out his or her duties without good
reason.
(2) The decision to disqualify a Tribunal Investigative Judge shall be
taken by the majority of permanent judges of the Tribunal, after conducting
appropriate investigations.
n) The Chief Tribunal Investigative Judge shall be required to appoint
non-Iraqi nationals to act in advisory capacities or as observers to the
Tribunal Investigative Judges. The role of the non-Iraqi nationals and
observers shall be to provide assistance to the Tribunal Investigative
Judges with respect to the investigations and prosecution of cases covered
by the this Statute (whether in an international context or otherwise), and
to monitor the protection by the Tribunal Investigative Judges of general
due process of law standards. In appointing such advisors, the Chief
Tribunal Investigative Judge shall be entitled to request assistance from
the international community, including the United Nations.
o) The non-Iraqi advisors and observers referred to in this Article shall
also be persons of high moral character, impartiality and integrity. In
this regard, it would be preferable that such non-Iraqi advisor or observer
shall have the following experience: (i) such person shall have acted in
either a judicial or prosecutorial capacity in his or her respective
country, or (ii) such person shall have experience in international war
crimes trials or tribunals.
SECTION TWO
Other Departments of the Tribunal
PART ONE
The Prosecutions Department
Article 8.
a) The Prosecutions Department shall be responsible for the prosecution of
persons responsible for crimes within the jurisdiction of the Tribunal.
b) Each Prosecutor shall act independently. He or she shall not seek or
receive instructions from any Governmental Department or from any other
source, including the Governing Council.
c) The Prosecutions Department shall consist of up to twenty Prosecutors.
d) Prosecutors are to be nominated and appointed by the Governing Council
after consultation with the Judicial Council.
e) The Prosecution Department shall be headed by a Chief Prosecutor, who
shall be selected from among the Prosecutors.
f) (1) A prosecutor shall be automatically disqualified for any of the
following reasons:
i) He or she has a criminal record including a felony unless the
felony is a political or false charge made by the Ba'ath Party regime;
ii) He or she has made a material misrepresentation; or
iii) He or she fails to carry out his or her duties without good
reason.
(2) The decision to disqualify a Prosecutor shall be taken by the Chief
Prosecutor, after conducting appropriate investigations.
g) Each Office of the Prosecutor shall be composed of a Prosecutor and such
other qualified staff as may be required.
h) The Chief Prosecutor shall assign individual cases to a Prosecutor. Such
Prosecutor shall have the right to be involved in the investigative stages
of a case and shall be the individual who prosecutes such case, consistent
with the powers granted to prosecutors pursuant to Law Number 23 of 1971
(Iraqi Criminal Procedure Law).
i) Each Prosecutor shall be appointed for a term of three years. The terms
and conditions of service shall be those of prosecutors of the Iraqi
judicial system as set out in Law Number 159 of 1979 (The Law of
Prosecutors), save that matters of compensation shall be set by the
Governing Council.
j) The Chief Prosecutor shall be required to appoint non-Iraqi nationals to
act in advisory capacities or as observers to the prosecutors. The role of
the non-Iraqi nationals and observers shall be to provide assistance to the
prosecutors of the Tribunal with respect to the investigations and
prosecution of cases covered by this Statute (whether in an international
context or otherwise), and to monitor the performance of the Prosecutor. In
appointing such advisors, the Chief Prosecutor shall be entitled to request
assistance from the international community, including the United Nations.
k) The non-Iraqi advisors and observers referred to in this Article shall
also be persons of high moral character, impartiality and integrity. In
this regard, it would be preferable that such non-Iraqi advisor or observer
shall have the following experience: (i) such person shall have acted in a
prosecutorial capacity in his or her respective country, or (ii) such person
shall have experience in international war crimes trials or tribunals.
PART TWO
The Administration Department
Article 9.
a) The Administration Department shall consist of a Director of the
Administration Department and such other staff as may be required.
b) The Administration Department shall be responsible for the administration
and servicing of the Tribunal and the Prosecutions Department.
c) The Director of the Administration Department shall initially be
appointed by the Governing Council. He or she shall serve for a three year
term and be eligible for reappointment. The terms and conditions of service
of the Director of the Administration Department shall be those of a General
Director in an Iraqi government department .
d) The staff of the Administration Department shall be appointed by the
Director of the Administration Department.
e) The Director of the Administration Department shall appoint a public
relations expert to the position of spokesman of the Tribunal. Such
spokesman shall give regular briefings to the press and the public at large
with respect to the developments relating to the Tribunal.
SECTION THREE
Jurisdiction and Crimes
PART ONE
Jurisdiction of the Tribunal
Article 10.
The Tribunal shall have jurisdiction over any Iraqi national or resident of
Iraq accused of the crimes listed in Articles 11 - 14, committed since July
17, 1968 and up and until May 1, 2003, in the territory of Iraq or
elsewhere, namely:
a) The crime of genocide;
b) Crimes against humanity;
c) War crimes; or
d) Violations of certain Iraqi laws listed in Article 14 below.
PART TWO
The Crime of Genocide
Article 11.
a) For the purposes of this Statute and in accordance with the Convention on
the Prevention and Punishment of the Crime of Genocide, dated December 9,
1948, as ratified by Iraq on January 20, 1959, "genocide" means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
1. killing members of the group;
2. causing serious bodily or mental harm to members of the group;
3. deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
4. imposing measures intended to prevent births within the group; and
5. forcibly transferring children of the group to another group.
b) The following acts shall be punishable:
1. genocide;
2. conspiracy to commit genocide;
3. direct and public incitement to commit genocide;
4. attempt to commit genocide; and
5. complicity in genocide.
PART THREE
Crimes Against Humanity
Article 12.
a) For the purposes of this Statute, "crimes against humanity" means any of
the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the
attack:
1. Murder;
2. Extermination;
3. Enslavement;
4. Deportation or forcible transfer of population;
5. Imprisonment or other severe deprivation of physical liberty in
violation of fundamental norms of international law;
6. Torture;
7. Rape, sexual slavery, enforced prostitution, forced pregnancy, or
any other form of sexual violence of comparable gravity;
8. Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any crime
within the jurisdiction of the Tribunal;
9. Enforced disappearance of persons; and
10. Other inhumane acts of a similar character intentionally causing
great suffering, or serious injury to body or to mental or physical health.
b) For the purposes of paragraph a):
1. "Attack directed against any civilian population" means a course
of conduct involving the multiple commission of acts referred to in the
above paragraph against any civilian population, pursuant to or in
furtherance of a state or organizational policy to commit such attack;
2. "Extermination" includes the intentional infliction of conditions
of life, such as the deprivation of access to food and medicine, calculated
to bring about the destruction of part of a population;
3. "Enslavement" means the exercise of any or all of the powers
attaching to the right of ownership over a person and includes the exercise
of such power in the course of trafficking in persons, in particular women
and children;
4. "Deportation or forcible transfer of population" means forced
displacement of the persons concerned by expulsion or other coercive acts
from the area in which they are lawfully present, without grounds permitted
under international law;
5. "Torture" means the intentional infliction of severe pain or
suffering, whether physical or mental, upon a person in the custody or under
the control of the accused; except that torture shall not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions;
6. "Persecution" means the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity
of the group or collectivity; and
7. "Enforced disappearance of persons" means the arrest, detention
or abduction of persons by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give information on
the fate or whereabouts of those persons, with the intention of removing
them from the protection of the law for a prolonged period of time.
PART FOUR
War Crimes
Article 13.
For the purposes of this Statute, "war crimes" means:
a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any
of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
1. Willful killing;
2. Torture or inhuman treatment, including biological experiments;
3. Willfully causing great suffering, or serious injury to body or health;
4. Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
5. Willfully denying the right of a fair trial to a prisoner of war or other
protected person;
6. Compelling a prisoner of war or other protected person to serve in the
forces of a hostile power;
7. Unlawful confinement;
8. Unlawful deportation or transfer; and
9. Taking of hostages.
b) Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following acts:
1. Intentionally directing attacks against the civilian population
as such or against individual civilians not taking direct part in
hostilities;
2. Intentionally directing attacks against civilians objects, that
is, objects which are not military objectives;
3. Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a peacekeeping mission in accordance
with the Charter of the United Nations or in a humanitarian assistance
mission, as long as they are entitled to the protection given to civilians
or civilian objects under the international law of armed conflict;
4. Intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or damage
to civilian objects which would be clearly excessive in relation to the
concrete and direct overall military advantage anticipated;
5. Intentionally launching an attack in the knowledge that such
attack will cause widespread, long-term and severe damage to the natural
environment which would be clearly excessive in relation to the concrete and
direct overall military advantage anticipated;
6. Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not military
objectives;
7. Killing or wounding a combatant who, having laid down his arms or
having no longer means of defense, has surrendered at discretion;
8. Making improper use of a flag of truce, of the flag or of the
military insignia and uniform of the enemy or of the United Nations, as well
as of the distinctive emblems of the Geneva Conventions, resulting in death
or serious personal injury;
9. The transfer, directly or indirectly, by the Government of Iraq
or any of its instrumentalities (including by an instrumentality of the Arab
Socialist Ba'ath Party), of parts of its own civilian population into any
territory it occupies, or the deportation or transfer of all or parts of the
population of the occupied territory within or outside this territory;
10. Intentionally directing attacks against buildings that are
dedicated to religion, education, art, science or charitable purposes,
historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
11. Subjecting persons of another nation to physical mutilation or to
medical or scientific experiments of any kind that are neither justified by
the medical, dental or hospital treatment of the person concerned nor
carried out in his or her interest, and which cause death to or seriously
endanger the health of such person or persons;
12. Killing or wounding treacherously individuals belonging to the
hostile nation or army;
13. Declaring that no quarter will be given;
14. Destroying or seizing the property of an adverse party unless such
destruction or seizure be imperatively demanded by the necessities of war;
15. Declaring abolished, suspended or inadmissible in a court of law,
or otherwise depriving, the rights and actions of the nationals of the
adverse party;
16. Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they were in
the belligerent's service before the commencement of the war;
17. Pillaging a town or place, even when taken by assault;
18. Employing poison or poisoned weapons;
19. Employing asphyxiating, poisonous or other gases, and all
analogous liquids, materials or devices;
20. Employing bullets which expand or flatten easily in the human body, such
as bullets with a hard envelope which does not entirely cover the core or is
pierced with incisions;
21. Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
22. Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, or any other form of sexual violence of comparable gravity;
23. Utilizing the presence of a civilian or other protected person to render
certain points, areas or military forces immune from military operations;
24. Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of the
Geneva Conventions in conformity with international law;
25. Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including
willfully impeding relief supplies as provided for under international law;
and
26. Conscripting or enlisting children under the age of fifteen years into
the national armed forces or using them to participate actively in
hostilities.
c) In the case of an armed conflict, any of the following acts committed
against persons taking no active part in the hostilities, including members
of armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause:
1. Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
2. Committing outrages upon personal dignity, in particular
humiliating and degrading treatment;
3. Taking of hostages; and
4. The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court,
affording all judicial guarantees which are generally recognized as
indispensable.
d) Serious violations of the laws and customs of war applicable in armed
conflict not of an international character, within the established framework
of international law, namely, any of the following acts:
1. Intentionally directing attacks against the civilian population
as such or against individual civilians not taking direct part in
hostilities;
2. Intentionally directing attacks against buildings, material,
medical units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
3. Intentionally directing attacks against personnel, installations,
material, units, or vehicles involved in a peacekeeping mission in
accordance with the Charter of the United Nations or in a humanitarian
assistance mission, as long as they are entitled to the protection given to
civilians or civilian objects under the international law of armed conflict;
4. Intentionally directing attacks against buildings that are
dedicated to religion, education, art, science, or charitable purposes,
historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
5. Pillaging a town or place, even when taken by assault;
6. Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, or any other form of sexual violence of comparable gravity;
7. Conscripting or enlisting children under the age of fifteen years
into armed forces or groups or using them to participate actively in
hostilities;
8. Ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;
9. Killing or wounding treacherously a combatant adversary;
10. Declaring that no quarter will be given;
11. Subjecting persons who are in the power of another party to the
conflict to physical mutilation or to medical or scientific experiments of
any kind that are neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out in his or her interest,
and which cause death to or seriously endanger the health of such person or
persons; and
12. Destroying or seizing the property of an adversary, unless such
destruction or seizure be imperatively demanded by the necessities of the
conflict.
PART FIVE
Violations of Stipulated Iraqi Laws
Article 14.
The Tribunal shall have the power to prosecute persons who have committed
the following crimes under Iraqi law:
a) For those outside the judiciary, the attempt to manipulate the
judiciary or involvement in the functions of the judiciary, in violation,
inter alia, of the Iraqi interim constitution of 1970, as amended;
b) The wastage of national resources and the squandering of public
assets and funds, pursuant to, inter alia, Article 2(g) of Law Number 7 of
1958, as amended; and
c) The abuse of position and the pursuit of policies that may lead
to the threat of war or the use of the armed forces of Iraq against an Arab
country, in accordance with Article 1 of Law Number 7 of 1958, as amended.
SECTION FOUR
Individual Criminal Responsibility
Article 15.
a) A person who commits a crime within the jurisdiction of this
Tribunal shall be individually responsible and liable for punishment in
accordance with this Statute.
b) In accordance with this Statute, and the provisions of Iraqi
criminal law, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Tribunal if that
person:
1. Commits such a crime, whether as an individual, jointly with
another or through another person, regardless of whether that other person
is criminally responsible;
2. Orders, solicits or induces the commission of such a crime which
in fact occurs or is attempted;
3. For the purpose of facilitating the commission of such a crime,
aids, abets or otherwise assists in its commission or its attempted
commission, including providing the means for its commission;
4. In any other way contributes to the commission or attempted
commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either:
i. Be made with the aim of furthering the criminal activity or
criminal purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Tribunal; or
ii. Be made in the knowledge of the intention of the group to
commit the crime;
5. In respect of the crime of genocide, directly and publicly
incites others to commit genocide;
6. Attempts to commit such a crime by taking action that commences
its execution by means of a substantial step, but the crime does not occur
because of circumstances independent of the person's intentions. However, a
person who abandons the effort to commit the crime or otherwise prevents the
completion of the crime shall not be liable for punishment under this
Statute for the attempt to commit that crime if that person completely and
voluntarily gave up the criminal purpose.
c) The official position of any accused person, whether as
president, prime minister, member of the cabinet, chairman or a member of
the Revolutionary Command Council, a member of the Arab Socialist Ba'ath
Party Regional Command or Government (or an instrumentality of either) or as
a responsible Iraqi Government official or member of the Ba'ath Party or in
any other capacity, shall not relieve such person of criminal responsibility
nor mitigate punishment. No person is entitled to any immunity with respect
to any of the crimes stipulated in Articles 11 to 14.
d) The fact that any of the acts referred to in Articles 11 to 14 of
the present Statute was committed by a subordinate does not relieve his
superior of criminal responsibility if he knew or had reason to know that
the subordinate was about to commit such acts or had done so and the
superior failed to take the necessary and reasonable measures to prevent
such acts or to submit the matter to the competent authorities for
investigation and prosecution.
e) The fact that an accused person acted pursuant to an order of a
Government or of a superior shall not relieve him of criminal
responsibility, but may be considered in mitigation of punishment if the
Tribunal determines that justice so requires.
SECTION FIVE
Rules of Procedure and Evidence
Article 16.
The President of the Tribunal shall draft rules of procedure and evidence
for the conduct of the pre-trial phase of the proceedings, trials and
appeals, the admission of evidence, the protection of victims and witnesses
and other appropriate matters (including regulations with respect to the
disqualification of judges or prosecutors), where the applicable law,
including this Statute does not, or does not adequately provide for a
specific situation. He shall be guided by the Iraqi Criminal Procedure Law.
Such rules shall be adopted by a majority of the permanent judges of the
Tribunal.
SECTION SIX
General Principles of Criminal Law
Article 17.
a) Subject to the provisions of this Statute and the rules made thereunder,
the general principles of criminal law applicable in connection with the
prosecution and trial of any accused person shall be those contained: (i) in
Iraqi criminal law as at July 17, 1968 (as embodied in The Baghdadi Criminal
Code of 1919) for those offenses committed between July 17, 1968 and
December 14, 1969; (ii) in Law Number 111 of 1969 (the Iraqi Criminal Code),
as it was as of December 15, 1969, without regard to any amendments made
thereafter, for those offenses committed between December 15, 1969 and May
1, 2003; and (iii) and in Law Number 23 of 1971 (the Iraqi Criminal
Procedure Law).
b) In interpreting Articles 11 to 13, the Trial Chambers and the Appellate
Chamber may resort to the relevant decisions of international courts or
tribunals as persuasive authority for their decisions.
c) Grounds for exclusion of criminal responsibility under the said Iraqi
Criminal Code shall be interpreted in a manner consistent with the Statute
and with international legal obligations concerning the crimes within the
jurisdiction of the Tribunal.
d) The crimes stipulated in Articles 11 to 14 shall not be subject to any
statute of limitations.
SECTION SEVEN
Investigation and Indictments
Article 18.
a) The Tribunal Investigative Judge shall initiate investigations ex-officio
or on the basis of information obtained from any source, particularly from
the police, and governmental and non-governmental organizations. The
Tribunal Investigative Judge shall assess the information received or
obtained and decide whether there is sufficient basis to proceed.
b) The Tribunal Investigative Judge shall have the power to question
suspects, victims and witnesses, to collect evidence and to conduct on-site
investigations. In carrying out these tasks, the Tribunal Investigative
Judge may, as appropriate, request the assistance of the relevant
governmental authorities concerned, who shall be required to provide full
co-operation with the request.
c) If questioned by a Tribunal Investigative Judge, the suspect shall be
entitled to be assisted by counsel of his or her own choice, including the
right to have legal assistance assigned to him or her without payment by him
or her in any such case if he or she does not have sufficient means to pay
for it. The suspect is entitled to have non-Iraqi legal representation, so
long as the principal lawyer of such suspect is Iraqi.
d) Upon a determination that a prima facie case exists, the Tribunal
Investigative Judge shall prepare an indictment containing a concise
statement of the facts and the crime or crimes with which the accused is
charged under the Statute.
PART ONE
Review of the Indictment
Article 19.
a) If the Chief Tribunal Investigative Judge is satisfied that a prima facie
case has been established by the Tribunal Investigative Judge, then he/she
shall confirm the indictment. If not so satisfied, the indictment shall be
dismissed without prejudice.
b) Upon confirmation of an indictment, the Tribunal Investigative Judge may,
at the request of the Chief Tribunal Investigative Judge, issue such orders
and warrants for the arrest, detention, surrender or transfer of persons,
and any other orders as may be required for the conduct of the trial.
PART TWO
Rights of the Accused
Article 20.
a) All persons shall be equal before the Tribunal.
b) Everyone shall be presumed innocent until proven guilty before the
Tribunal in accordance with the law.
c) In the determination of any charge, the accused shall be entitled to a
public hearing, having regard to the provisions of the Statute and the rules
of procedure made hereunder.
d) In the determination of any charge against the accused pursuant to the
present Statute, the accused shall be entitled to a fair hearing conducted
impartially and to the following minimum guarantees:
1. to be informed promptly and in detail of the nature, cause and content of
the charge against him;
2. to have adequate time and facilities for the preparation of his defense
and to communicate freely with counsel of his own choosing in confidence.
The accused is entitled to have non-Iraqi legal representation, so long as
the principal lawyer of such accused is Iraqi;
3. to be tried without undue delay;
4. to be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to
him, in any case where the interests of justice so require, and without
payment by him in any such case if he does not have sufficient means to pay
for it;
5. to examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him. The accused shall also be entitled to
raise defences and to present other evidence admissible under this Statute
and Iraqi law; and
6. not to be compelled to testify against himself or to confess guilt, and
to remain silent, without such silence being a consideration in the
determination of guilt or innocence.
SECTION EIGHT
Trial Proceedings
Article 21.
a) A person against whom an indictment has been issued shall, pursuant to an
order or an arrest warrant of the Tribunal Investigative Judge, be taken
into custody, immediately informed of the charges against him and
transferred to the Tribunal.
b) The Trial Chambers shall ensure that a trial is fair and expeditious and
that proceedings are conducted in accordance with this Statute and the rules
of procedure and evidence, with full respect for the rights of the accused
and due regard for the protection of victims and witnesses.
c) The Trial Chamber shall read the indictment, satisfy itself that the
rights of the accused are respected, confirm that the accused understands
the indictment, and instruct the accused to enter a plea.
d) The hearings shall be public unless the Trial Chamber decides to close
the proceedings in accordance with its rules of procedure and evidence. The
decision to close the proceedings shall be exercised on a very limited
basis.
Article 22.
The Tribunal shall, in its rules of procedure and evidence, provide for the
protection of victims and witnesses. Such protection measures shall take
into account the rights of the accused and shall include, but shall not be
limited to, the conduct of in camera proceedings and the protection of the
identity of the victim or witness.
Article 23.
a) The Trial Chambers shall pronounce judgments and impose sentences and
penalties on persons convicted of crimes within the jurisdiction of the
Tribunal.
b) The judgment shall be rendered by a simple majority of the judges of the
Trial Chamber, and shall be delivered by the Trial Chamber in public. It
shall be accompanied by a reasoned opinion in writing, to which separate or
dissenting opinions may be appended.
Article 24.
a) The penalties that shall be imposed by the Tribunal shall be those
prescribed by Iraqi law (especially Law Number 111 of 1969 (the Iraqi
Criminal Code), save that for the purposes of this Tribunal, sentences of
life imprisonment shall mean the remaining natural life of the person.
b) Subject to paragraph a) above, the penalties for crimes under Article 14
shall be those prescribed under the relevant provisions of Iraqi law
c) The penalty for crimes under Articles 11 to 13 shall be determined by the
Trial Chambers, taking into account the factors contained in paragraph d)
below.
d) A person convicted of:
1. An offence involving murder or rape as defined under Iraqi law;
or
2. An offence ancillary to such offence of murder or rape,
shall be dealt with as for an offence of, as the case may be, murder or rape
or the corresponding ancillary offences in relation to murder or rape.
e) The penalty for any crimes under Articles 11 to 13 which do not have a
counterpart under Iraqi law shall be determined by the Trial Chambers taking
into account such factors as the gravity of the crime, the individual
circumstances of the convicted person and relevant international precedents.
f) The Trial Chambers may order the forfeiture of proceeds, property or
assets derived directly or indirectly from that crime, without prejudice to
the rights of the bona fide third parties.
g) In accordance with Article 307 of the Iraqi Criminal Procedure Code, the
Tribunal has authority to confiscate any goods prohibited by law regardless
of whether the case has been discharged for any lawful reason.
SECTION NINE
Appeals and Review Proceedings
PART ONE
Appellate Proceedings
Article 25.
a) The Appeals Chamber shall hear appeals from persons convicted by the
Trial Chambers or from the Prosecutor on the following grounds:
1. an error on a question of law invalidating any decision;
2. an error of procedure; or
3. an error of material fact which has occasioned a miscarriage of
justice.
b) The Appeals Chamber may affirm, reverse or revise the decisions taken by
the Trial Chambers.
c) Where a verdict of acquittal is reversed by the Appeals Chamber, the case
shall be referred back to a Trial Chamber for retrial.
PART TWO
Review Proceedings
Article 26.
a) Where a new fact has been discovered which was not known at the time of
the proceedings before the Trial Chambers or the Appeals Chamber and which
could have been a decisive factor in reaching the decision, the convicted
person or the Prosecutor may submit to the Tribunal an application for
review of the judgment.
b) The Appeals Chamber shall reject the application if it considers it to be
unfounded. If it determines that the application has merit, it may, as
appropriate:
1. Reconvene the original Trial Chamber;
2. Constitute a new Trial Chamber; or
3. Retain jurisdiction over the matter,
with a view to, after hearing the parties, arriving at a determination on
whether the judgment should be revised.
SECTION TEN
Enforcement of Sentences
Article 27.
Sentences shall be carried out by the legal system of Iraq in accordance
with its laws.
SECTION ELEVEN
General Principles and Other Matters
Article 28.
The judges, investigative judges, prosecutors and the Director of the
Administration Department shall be Iraqi nationals.
Article 29.
a) The Tribunal and the national courts of Iraq shall have concurrent
jurisdiction to prosecute persons for those offences prescribed in Article
14 that fall within the jurisdiction of the Tribunal.
b) The Tribunal shall have primacy over all other Iraqi courts with respect
to the crimes stipulated in Articles 11 to 13.
c) At any stage of the procedure, the Tribunal may demand of any other Iraqi
court to transfer any case being tried by it involving any crimes stipulated
in Articles 11 to 14 to the Tribunal, and such court shall be required to
transfer such case.
Article 30.
a) No person shall be tried before any other Iraqi court for acts for which
he or she has already been tried by the Tribunal, in accordance with
Articles 300 and 301 of the Iraqi Criminal Procedure Code.
b) A person who has been tried by any Iraqi court for acts constituting
crimes within the jurisdiction of the Tribunal may be subsequently tried by
the Tribunal only if the Tribunal determines that the previous court
proceedings were not impartial or independent, were designed to shield the
accused from international or Iraqi criminal responsibility, or the case was
not diligently prosecuted, provided that the requirements of Article 303 of
the Iraqi Criminal Procedure Code are met or one of the conditions contained
in Article 196 of the Iraqi Civil Procedure Code apply.
c) In considering the penalty to be imposed on a person convicted of a crime
under the present Statute, the Tribunal shall take into account the extent
to which any penalty imposed by an Iraqi court on the same person for the
same act has already been served.
Article 31.
a) The Tribunal, the judges, the Tribunal Investigative Judges, the
Prosecutors, the Director of the Administration Department and their staffs
shall have immunity from civil suits for their official acts.
b) Other persons, including the accused, required at the seat of the
Tribunal shall be accorded such treatment as is necessary for the proper
functioning of the Tribunal.
Article 32.
For purposes of this statute, the "Governing Council" shall mean the
Governing Council of Iraq established on July 13, 2003. The powers
conferred on the Governing Council in this Statute shall be transferred to
the executive authority in any future government (the "Successor
Government") established following the disbanding of the Governing Council.
Article 33.
No officer, prosecutor, investigative judge, judge or other personnel of the
Tribunal shall have been a member of the Ba'ath Party.
Article 34.
Arabic shall be the official language of the Tribunal.
Article 35.
The expenses of the Tribunal shall be borne by the regular budget of the
Government of Iraq.
Article 36.
The President of the Tribunal shall submit an annual report of the Tribunal
and its associated bodies to the Governing Council (and subsequently to the
executive authority of the Successor Government).
Article 37.
The Governing Council has the powers to establish other rules and procedures
in order to implement this Statute.
Article 38.
This law shall become effective on the 10th day of December, 2003 and shall
be published in the Official Gazette.
_______________________________________________
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