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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
All this speaks not only of the legitimacy of the Iraqi Special Tribunal as an ad hoc court of justice, but
also of the reason why it has been enacted as it currently stands. While modifications may be foreseen, the
personae, temporis and loci rationae are certain to remain. The determination that remains to be done is
therefore the content of the Statute of the Iraqi Special Tribunal.
Jurisdiction and Crimes
Since 1991, the Iraqi Special Tribunal is the fifth of the kind to be created. And there seem indeed to be
lessons that have been drawn from the experiences of the preceding ones. Indeed, the progression in
clarity and reach of the Statute seems to improve, although not everything has progressed toward securing
the full measure of justice due to the victims in accordance with International Humanitarian Law and the
International Bill of Human Rights 25 .
The first attempt at creating such a court with the 1993 Statute of the International Criminal Tribunal for
the Former Yugoslavia had fallen somewhat short of all the crimes that had been put to the feet of the
accused. Indeed, this Tribunal was solely concerned with Serious Violations of International
Humanitarian Law 26 .
As such, it divided its competence over the notions of grave breaches of the Geneva Conventions of
1949 27 , violations of the laws or customs of war, genocide and crimes against humanity. But even the
formulation of these divisions seemed somewhat out of place. Instead of addressing the violations of
humanitarian international law as a holistic legal regime, this Statute divided and compartmentalised what
is inter-related. For example, its Article 2 joined as a cross-section the grave violations referred to in
Articles 50 of the First Geneva Convention, 51 of the Second Geneva Convention, 130 of the Third
Geneva Convention and 147 of the Fourth Geneva Convention. However, instead of speaking to the terms
of the Geneva Conventions, it merged these documents to read “a prisoner of war or a civilian” when
referring to grave breaches. As a result, it excluded some of the protected persons referred to in Article 4
of the Fourth Geneva Convention 28 . This oversight may seem benign, but it clearly excludes medical and
25 Recognized as being the Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948) ,
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at
49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, International Covenant on Civil and Political
Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered
into force Mar. 23, 1976, Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976. ,
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death
penalty, G.A. res. 44/128, annex, 44 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/44/49 (1989), entered into force July 11,
1991, United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and
Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984).
26 Statute of the International Criminal Tribunal for the Former Yugoslavia, supra, note 13, at Article 1.
27 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field , 75
U.N.T.S. 31, entered into force Oct. 21, 1950 [hereafter the First Geneva Convention], Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered
into force Oct. 21, 1950 [hereafter the Second Geneva Convention], Geneva Convention relative to the Treatment of Prisoners
of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950 [hereafter the Third Geneva Convention], and the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950
[hereafter the Fourth Geneva Convention].
28 Fourth Geneva Convention, ibid., Article 2: “Persons protected by the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the
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LOUIS-PHILIPPE F. ROUILLARD - THE STATUTE OF THE IRAQI SPECIAL TRIBUNAL