The Iraqi Special Tribunal under International Humanitarian Law

Abstract

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy of such a domestic forum within the context of human rights norms and the law of occupation. In particular, there was a major strand of thought from outside Iraq that the most legitimate and appropriate forum would have been an international process under the authority of the United Nations. This article examines the arguments made by the Iraqis who demanded a domestic process based on their inquisitorial model, setting them in the broader context of the emerging trends in international criminal law. Through a detailed and unique analysis of the provisions of human rights law and underlying Iraqi procedural law, it criticizes the arguments made by some that assume the illegitimacy of the tribunal under established international norms. The article provides the most detailed explanation of the law of occupation as it emerged following World War II to conclude that the establishment of the Tribunal as an independent court, and its subsequent validation by sovereign Iraqi domestic authorities, was completely valid and proper. The overarching theme of the article is that the imposition of artificial standards and the complete revocation of the preexisting Iraqi judicial structures would have created a process deemed wholly illegitimate by the Iraqi people and judiciary that would have undermined the establishment of the rule of law in Iraq. The author’s personal interactions with the judges serve to support the conclusion that the Tribunal is capable of serving as the doorway through which the detailed body of international criminal law is introduced to the broader Arabic speaking world.