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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
However, there is one important omission in these which concerns international armed conflicts. This
intentional omission is the employment of weapons, projectiles and material and methods of warfare
which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently
indiscriminate in violation of the international law of armed conflict. This can be construed as a clear
desire to leave out the very delicate issue of the employment of some weapons, such as bomblets, napalm,
gas bombs and nuclear bombs, which many officials of the Coalition would certainly not want to have to
speak about in a trial.
And the question of sexual sterilisation is again left out, as it is also when reference to sexual crimes is
made in relation to serious violations of the laws and customs of war.
As for the rest, the whole of Article 3 common to the Geneva Conventions, as written in the Rome Statute,
is brought forward in the Iraqi Statute, while the serious violations of the laws and customs of war are
verbatim, save for the sexual crimes definition shown above.
CONCLUSION
As a result of the evolution of the LOAC, it is evident that the experiences of the tribunals for Yugoslavia
and for Rwanda affected the kind of conflict of the end of the 1990s and the more recent ones of the third
millennium. The development of the Rome Statute of the International Criminal Court has also clearly
influenced the development of national instruments, such as the Statute of the Special Court for Sierra
Leone and that of the Statute of the Iraqi Special Tribunal. Therefore, a definitive progress has been made
towards legitimizing the rule of international humanitarian law in both non-international and international
armed conflicts, as well as the particular rules of that pertains to the jus in bello.
Nonetheless, and despite clear efforts of providing for transparency of procedures and meeting of the
minimal humanitarian standards, there remains a very entrenched political influence that is pervasive
throughout the redaction of such statutes. Not until the United States recognizes the International
Criminal Court will we see a fully harmonized and applicable system of indictment and prosecution of
crimes against humanity, war crimes, crimes of genocide and, as important, the crime of aggression. Until
such time, there will be a selectivity applied to the prosecution of particular crimes while avoiding some
of the more delicate issues, such as disappearance, sexual crimes and the crime of aggression.
A silver lining does exist in the fact that all crimes committed after July 1, 2002 can be submitted to the
jurisdiction of the court. Furthermore, the joint use of this tribunal with the Convention of the Safety of
United Nations and Associated Personnel renders the U.N. peacekeepers less prone to attacks – or least
able to obtain justice for sustaining injuries during their missions. As such, the Iraqi Statute demonstrates
that the work done to draft the Rome Statute made good juridical sense, since it has taken most of its
provisions for its own work. It now remains to be seen how far this will permit justice being truly served.
LOUIS-PHILIPPE F. ROUILLARD - THE STATUTE OF THE IRAQI SPECIAL TRIBUNAL
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