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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
First of all, the temporality of the statute addresses from the start the notion that the crimes aimed at are
all those that are alleged to have taken place since the illegal putsch of the Ba’ath party against the ruling
government of July 17, 1968 up to and including the official end of the latest Iraq War on May 1, 2003.
As a result, there is a wide variety of conflicts and crimes that need to be addressed in particular
geographic locations and at precise time. In order to avoid limiting the powers of the Tribunal, the Statute
states clearly that its jurisdiction applies to any Iraqi national or resident accused of the crimes listed,
whether it occurred in the territory of Iraq or elsewhere. As such, it does not limit the persons or the
geographic area of its jurisdiction.
The drafters of this Statute have also decided to change its structure compared to the prior tribunals.
Instead of plunging itself immediately into the crimes to be under its jurisdiction, it instead presents the
composition and organisation of the tribunal. This seems obviously to be done in order to alleviate critics
of a ‘kangaroo court’ by showing from the start and in plain view who and what shall the tribunal shall be
composed of. This is of paramount importance as many of the persons representing the current Governing
Council of Iraq are expatriates who returned to Iraq after the Coalition’s invasion. As such, they are
deemed to have a strong bias against the former regime and therefore need to avoid any sort of accusation
that would attack its legitimacy.
It is in this aim that Article 5(e) of the Statute of the Iraqi Special Tribunal incorporates not only the
notion of national law for the selection of judges, but also the possibility for disqualifying a judge at
Article 5(f)(1). This is also applicable to investigative judges under Article 7(m)(1).
There is also a Presidency of the Tribunal, established at Article 6, which further tries to increase the
legitimacy by the appointment of non-Iraqi advisors to the Tribunals whose function will be to advise the
Tribunal on international law and to monitor the due process of law standards.
It is only after the credentials of the Tribunal are established that the Statute moves to the crimes
submitted to its jurisdiction. And again, this is an exercise in simplicity and clarity. As such, Article 10
states them clearly: the crime of genocide, crimes against humanity, war crimes or violations of certain
Iraqi laws listed in Article 14.
It is interesting that this article does not keep in full with the Statute of Rome. Its Article 5(1) refers to four
serious crimes, the first three being the same as in the Iraqi Statute, but the fourth is the crime of
aggression.
Where Article 1 of the Iraqi Statute refers to the conflicts with the Islamic Republic of Iran and the State
of Kuwait, one would expect in Article 10 that this is indeed a serious crime and that it should hold the
Iraqi leadership accountable for this. Quite to the contrary, there is no mention of this being a crime at all.
This is certainly the major failing of this statute, and one cannot discard the very real possibility that the
avoidance of this inclusion is not unrelated to political consideration and historical facts. No mention of
this crime means that no testimonies on the matter are to be accepted by the tribunal and therefore the
avoidance of the subject of some countries’ support for Iraq’s wars.
Despite this failing, the adaptation of the statute to circumstances in interesting. One must take into
consideration that the crimes mentioned have different time and space applicable to them. For example,
crimes committed during the Iran-Iraq war of 1980-1988 fall under the international armed conflict
regime of International Humanitarian Law. But crimes committed against Kurds during the interwar
LOUIS-PHILIPPE F. ROUILLARD - THE STATUTE OF THE IRAQI SPECIAL TRIBUNAL
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