Justice for Iraqi victims

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The International Federation of Human Rights (IFHR) is extremely pleased that the Iraqi dictator Saddam Hussein1 has been arrested. The Federation would also like to point out that Saddam Hussein, now in the hands of the U.S.-U.K. coalition, should be treated as a prisoner of war in accordance with the provisions of the Geneva Convention of 1949.

"His treatment and judgement must be exemplary", declared Sidiki Kaba, president of the IFHR. "No matter what type of court judges Saddam Hussein and his accomplices, it must be independent, impartial and guarantee victims’ rights to true recourse."
The IFHR feels that the presumed authors of genocide, crimes against humanity and war crimes committed in Iraq—and also international crimes committed in Iran and Kuwait for over 30 years—must be judged, and that responsibility for this task lies primarily in the hands of national courts.
However, in conformity with resolutions adopted by the United Nations Security Council since 1990, the IFHR feels that only an ad hoc international court or national court of an international nature is capable of guaranteeing the application of international standards for independence and impartiality of courts and of guaranteeing victims’ rights to recourse before independent courts. Such a guarantee is particularly important given the extreme gravity of the crimes committed, which concern the international community as a whole, and given the primordial importance of such a trial in terms of its nature as a founding act in the construction of a new democratic and peaceful nation.
With this in mind, the IFHR has studied carefully the "Statute of the Iraqi Special Tribunal for Crimes Against Humanity" adopted on 10 December 2003 by the provisional Iraqi Governing Council1.
The proposed statute includes a number of interesting points:
1. The Special Tribunal Statute is partly based on the Statute of the International Criminal Court, particularly with regards to the definition of war crimes, crimes against humanity and genocide. It also repeats, in substance, the general principles of criminal law adopted by 120 countries in Rome on 17 July 1998. Likewise, it restates the absence of immunity regardless of the position of the person on trial, the principle of the responsibility of superiors and the absence of a statute of limitations.

2. The Statute of the Tribunal also fulfills the principle of the double degree of jurisdiction because it provides for a chamber of judges responsible for examining cases, trial chambers, and appeals chambers responsible for examining the decisions of the five trial chamber judges.

3. As regards the Tribunal’s jurisdiction, Iraqi nationals and residents of Iraq shall fall within the jurisdiction of the special Tribunal. Only natural persons (article 1, paragraph c) may be judged by the Tribunal, and not any political groups or factions or companies, to the great regret of the IFHR.

4. The Tribunal has far-reaching geographical jurisdiction: all war crimes, crimes against humanity and genocide committed between 17 July 1968 and 1 May 2003 on Iraqi territory and "elsewhere" (article 1 b.) including crimes committed in connection with the wars against the Islamic Republic of Iran and the State of Kuwait fall under the jurisdiction of the special tribunal based in Baghdad.

5. The IFHR notes that according to article 18 paragraph a of the Statute of the Special Tribunal, investigative judges can initiate investigations of their own accord on the basis of information received from any sources, including non-governmental organizations.

The IFHR is very concerned about certain provisions of the Statute:

1. The IFHR has noted that, unlike other chambers of the special tribunal, the statute does not provide for the automatic participation of non-Iraqi judges in the special tribunal’s judiciary. While the provisional Iraqi governing council does not exclude the possibility of participation of non-Iraqi judges, neither does it take into account the necessity of including an international component in the Tribunal. This fact is worrisome given the current state of the Iraqi justice system and the particularly serious and complex nature of the affairs the Tribunal will be called upon to judge. In addition, the IFHR notes a very real risk of political manipulation in the nomination of judges, given that the provisional Iraqi Governing Council is responsible for making nominations, under the control of American authorities.

2. More importantly, the IFHR can only be opposed to any proposal that may result in the application of capital punishment to persons found guilty. The IFHR feels that capital punishment is fundamentally contrary to human dignity as proclaimed by the Universal Declaration of Human Rights. A number of international instruments have called for the abolition of capital punishment, in particular the Second Optional Protocol to the International Covenant on Civil and Political Rights of 15 December 1989. In addition, the terms of article 6 of the International Covenant on Civil and Political Rights, ratified by Iraq since 1971, "unambiguously suggest (par. 2 and 6) that its abolition is desirable" 2.
In addition, and above all, neither the statutes of the ad hoc tribunals created for the former Yugoslavia, Rwanda and Sierra Leone, nor the Statute of the permanent International Criminal Court authorizes capital punishment.

3. As regards the competence of the Tribunal, Iraqi nationals and residents of Iraq shall fall under the jurisdiction of the special Tribunal. According to the Statute, only natural persons (article1 paragraph c) shall be tried by the Tribunal, and not political groups or factions or companies, which the IFHR regrets.

4. Finally, the IFHR is very concerned by the fact that the Statute of the Special Tribunal makes no reference to victims’ rights. The procedure laid out in the Statute does not guarantee victims’ rights to participation, protection and reparation. Thus the IFHR feels that the Tribunal contravenes human rights conventions, in particular:
the 1966 International Covenant on Civil and Political Rights
the Fundamental principles and directives concerning the right to recourse and reparation of victims of violations of international human rights and the international humanitarian law of 1999

The assurances made by the President of the United States regarding the conditions under which Saddam Hussein and his accomplices will be tried are entirely insufficient given the terms of the Statute adopted on 10 December 2003.

To guarantee that the victims of Saddam Hussein obtain effective, independent and impartial justice, the Statute must be modified. The international community is also responsible for guaranteeing justice. The IFHR calls on the United Nations and the European Union to address this priority immediately.



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