Summary ............................................................................................................................ 1Background ....................................................................................................................... 2How the Supreme Iraqi Criminal Tribunal Will Work............................................... 3The SICT and the Right to a Fair Trial......................................................................... 6Inappropriate Standard of Proof and Inadequate Protections against Self-incrimination................................................................................................................. 8B.Inadequate Procedural and Substantive Steps to Ensure Adequate Defense..... 9a. Access to defense counsel during the investigative phase ..................................... 9b. Equality of arms and adequate time and facilities for the preparation of adefense ......................................................................................................................... 12c. Inadequate protection of the right to confront and examine witnesses............ 14C.Concerns that the SICT May Not Appear to be Impartial and Independent .. 15a. Prejudicial comments by senior public officials and political figures ................ 15b. Politicization of control of the SICT and susceptibility of judges to dismissal 15c. The Role of U.S. Advisors........................................................................................ 17V.The Death Penalty.......................................................................................................... 18VI.Conclusion....................................................................................................................... 18I.II.III.IV.A.

I. SummaryThis briefing paper was completed on October 16, 2005. At the time of writing, the new law governingthe Supreme Iraqi Criminal Tribunal (formerly known as the Iraqi Special Tribunal) had been passedby the Transitional National Assembly and ratified by the Presidency Council, and is awaitingpromulgation in the Official Gazette in order to come into force. Human Rights Watch understandsthat the promulgation of the new law is only a matter of time.The analysis in this document reflects the provisions of the soon-to-be effective new law and is releasednow due to the imminence of the trial’s commencement. However, the concerns about fair trial issuesexpressed by Human Rights Watch in this briefing paper apply with equal force to the pre-existing lawgoverning the Iraqi Special Tribunal.1On October 19, 2005, the first trial of members of the former Ba’thist government ofIraq—including former President Saddam Hussein—is expected to commence. Thetrial, and those that follow after it, will present Iraqi authorities with an unprecedentedopportunity to provide some measure of truth and justice for the hundreds of thousandsof victims of grave human rights violations that occurred in Iraq between 1979 and2003. At the same time, the trials need to be fair and be seen to be fair. While this istrue of all trials, it is particularly true in Iraq given the high profile of the trials and theintensely politicized environment in which they will take place—like those at Nuremburgafter the Second World War, the trials will be subject to intense scrutiny for years tocome.Success will not be easy. The extent of the crimes committed under Saddam Hussein—genocide, crimes against humanity and war crimes2—means that any legitimate processis complex and requires substantial time and money. There will be novel issues.The Supreme Iraqi Criminal Tribunal (SICT) (formerly known as the Iraqi SpecialTribunal or IST) will be applying a mixture of international law and domestic criminallaw within a very recently reconstituted national legal system. This has importantpositive aspects: locating international criminal trials within the affected country is oneway of making international justice mechanisms more responsive to the needs andinterests of victims and the affected society. However, it also carries dangers:localization cannot come at the expense of fundamental fair trial rights or the consistentapplication of international criminal law.

Human Rights Watch’s previously expressed concerns about the Iraqi Special Tribunal are detailed inMemorandum to the Iraqi Governing Council on ‘The Statute of the Iraqi Special Tribunal’(December 2003)available athttp://hrw.org/backgrounder/mena/iraq121703.htm;Briefing Paper: The Iraqi Special TribunalRules of Procedure and Evidence Missing Key Protections(April 2005) available athttp://hrw.org/english/docs/2005/04/22/iraq10533_txt.htm.2See, e.g., Human Rights Watch/Middle East,Genocide in Iraq: The Anfal Campaign Against the Kurds(NewYork: Human Rights Watch, 1993);Iraq’s Crime of Genocide: The Anfal Campaign Against the Kurds(NewHaven: Yale University Press, 1995); Human Rights Watch/Middle East,Endless Torment: the 1991 Uprising inIraq and its Aftermath(New York: Human Rights Watch, 1992); Physicians for Human Rights,Winds of Death:Iraq’s use of Poison Gas against its Kurdish Population(Boston: Physicians for Human Rights,1989).

Human Rights Watch has long called for the prosecution of senior figures in the formergovernment, including Saddam Hussein, and has been instrumental in documentingsome of the worst atrocities committed under his regime. It therefore welcomes effortsto investigate and prosecute former Iraqi leaders. However, the evolution of the SICTover the last two-and-a-half years has given rise to serious concerns about its capacity toconduct trials that are fair, and perceived among the Iraqi population to be fair.This briefing describes how the SICT will work. It also identifies deficiencies in theSICT which, if not addressed, could jeopardize fair trial rights and undercut thelegitimacy of the proceedings. Areas of particular concern identified here include:•An inappropriate standard of proof and inadequate protections against self-incrimination;•Inadequate procedural and substantive steps to ensure an adequate defense;•Concerns that the SICT may not appear to be impartial and independent.A further aspect in which Human Rights Watch finds the SICT deficient and is of graveconcern is the widespread application of the death penalty without any possibility ofclemency, and the requirement to execute a convicted person within 30 days of a finaldecision.

II. BackgroundIn the aftermath of the fall of the Ba’thist government, the world witnessed thedistressing sight of Iraqis, in numerous locations around Iraq, desperately uncoveringand excavating mass graves and seizing thousands of pages of government documents,in an attempt to determine the fate of missing and “disappeared” relatives. The UnitedStates (U.S.)-led coalition forces had no coherent strategy to protect sites of potentialimportance to future prosecutions, and the general failure to maintain law and order andpreserve civilian infrastructure in the wake of the government’s collapse extended to aninability to secure sites containing much forensic and documentary evidence.In the town of al-Hillah, south of Baghdad, Human Rights Watch documented villagers’attempt to excavate a mass grave with a backhoe, resulting in the disinterment andcommingling of some 2,000 sets of remains and the disturbing of materials found withthe bodies.3Many of these remains were ultimately reburied without identification, andcrucial forensic evidence was lost in the process. Under pressure from human rightsorganizations, the Coalition Provisional Authority (CPA - the administration created bythe occupying powers) hastily prepared a “Mass Graves Action Plan” in the summer of2003, but lacked both the personnel and the financial resources to implement it as thenumber of identified mass graves rose to over 200.4Around the same time, millions of pages of government records were seized from theunguarded offices of former security services, by an array of Iraqi groups and34

individuals. These included Iraqi political parties, bereaved relatives and newly-formedhuman rights associations. Each of these entities held the documents for their ownpurposes, and generally with little concern for preserving the integrity of thedocumentation in order to assist future prosecutions. In a November 2004 report,Human Rights Watch concluded that the failure to protect these documents, and theabsence of any coherent plan for managing their storage and archiving, meant that therewere serious concerns about the integrity of the documents and their potentialevidentiary value in any trial.5The general state of disarray in planning for Iraq’s post-conflict justice needs wassymptomatic of an ad hoc approach to the process of determining how to prosecuteleaders of the former government accused of human rights violations. From an earlystage, the U.S. consistently opposed an international tribunal or mixed Iraqi-internationalcourt under United Nations (U.N.) auspices.6Although human rights organizations and international experts advocated a mixed Iraqi-International Commission of Experts to review the situation and propose acomprehensive strategy for addressing Iraq’s legacy of human rights violations, the U.S.-led CPA insisted on an “Iraqi-led” process – without establishing a transparent processto consult Iraqis or assess Iraqi attitudes towards issues of justice and accountability.Instead, the proposal for an “Iraqi Special Tribunal” emanated from individuals close tothe CPA and the CPA-appointed Interim Governing Council (IGC). The process ofdrafting and revising the founding document of the Iraqi Special Tribunal lackedtransparency. Numerous requests by Human Rights Watch and other human rightsorganizations and international experts to see and comment upon the draft law wererejected.Difficulties in obtaining information about the SICT have persisted, contributing to ageneral lack of knowledge about the court among the Iraqi population, andinternationally. Due in large part to poor security conditions in Iraq, the establishmentand operationalization of the court has been a slow process. At the same time, the courthas come under consistent pressure from successive Iraqi interim governments to speedup its investigations and prosecutions.

III. How the Supreme Iraqi Criminal Tribunal Will WorkThe Statute of the Iraqi Special Tribunal (IST Statute) was promulgated as an Order ofthe CPA on December 10, 2003.7In early August 2005, the IST Statute was revoked byIraq’s Transitional National Assembly, and replaced by a statute establishing the SICT.8See Human Rights Watch,Iraq: State of the Evidence,November 2004.See comments of U.S. Ambassador-at-Large for War Crimes, Pierre Prosper, in April 2003, quoted in PeterLandesman, “Who vs. Saddam?”New York Times,July 11, 2004.7Coalition Provisional Authority Order Number 48: Delegation of Authority Regarding an Iraqi Tribunal,CPA/ORD/9 Dec 2003/48 (2003) (IST Statute)8At the time of writing, the legal status of the law passed by the Transitional National Assembly is uncertain.Human Rights Watch has been informed that, on the first occasion the law was passed in August 2005, it was anullity because of a failure to follow parliamentary procedure – namely, it had not been reviewed by the State65

The SICT Statute preserves most of the provisions of the IST Statute, but emphasizesgreater use of Iraqi criminal procedure law. For reasons detailed below, Human RightsWatch is concerned that Iraqi criminal procedure law and the SICT’s new rules ofevidence and procedure do not provide sufficient safeguards to ensure a fair trial.The SICT has jurisdiction over Iraqis and non-Iraqis residing in Iraq accused ofcommitting genocide, crimes against humanity and war crimes, between July 1968 andMay 2003.9The SICT Statute adopts the definitions of these crimes from the RomeStatute of the International Criminal Court. However, the SICT Statute also includescrimes from a 1958 Iraqi law that are political offenses,10and of a breadth and vaguenessthat makes them susceptible to politicized interpretation and application. For example,the Statute allows individuals to be charged with “the wastage of natural resources andthe squandering of public assets,” and “the abuse of position and the pursuit of policiesthat may lead to the threat of war or the use of armed forces of Iraq against an Arabcountry.” These offenses are not defined, either in the SICT Statute or in the 1958 Lawfrom which they are drawn.Investigations and trials before the SICT are regulated primarily by the Iraqi Code ofCriminal Procedure.11The applicable Iraqi criminal procedure is based on the civil lawsystem of criminal procedure as used in countries such as France in the 1950s.12Itconcentrates powers of fact-finding and investigation in the hands of an investigativejudge. The investigative judge plays the role of an inquisitor whose objective is toascertain the truth,13and has broad powers to compel testimony, seek out experts andcollect and preserve evidence.14He or she must seek out both exculpatory andinculpatory evidence in order to assess whether there is sufficient evidence for trial. Allevidence collected and testimony taken are recorded in a written dossier. During theinvestigative phase, the accused and the accused’s lawyer have a limited right to bepresent while the investigative judge collects evidence and questions witnesses,15andmay only question a witness through the investigative judge and with the latter’spermission.16The accused can submit comments on witnesses’ testimony, to beincluded in the dossier.17Consultative Council (MajlisShura al-Dawla).In September 2005, the Transitional National Assembly voted onfurther amendments to the law after the draft had been re-examined by the Shura Council, and adopted it. Atthis writing, the law (Law 10 of 2005) had been ratified by the Presidency Council but was still awaitingpublication in the Official Gazette to enable it to come into force.9SICT Statute, Arts 1.2.10SICT Statute, Art 16. Two of the crimes listed in Article 16 appear to have their origins in the military tribunalthat was constituted to try leaders of the monarchical government after the 1958 revolution led by ‘Abdel KarimQassim. This tribunal, known as the Mahdawi Court, conducted overtly political trials more concerned withdiscrediting the monarchy than with establishing the guilt or innocence of the accused. It is troubling that theseoffenses have been included in the substantive jurisdiction of the SICT.11SICT Statute, Art 19. The principal law is the Code of Criminal Procedure, No. 23 of 1971.12In 1993 and 2000, French criminal procedure law was amended in order to expand the rights of defendants,which were considered insufficiently protected under the earlier laws: Stewart Field and Andrew West,“Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the Pre-Trial Criminal Process,”CriminalLaw Forum,Volume 14, Issue 3 (2004), pp. 261-316.13Christoph Safferling,Towards an International Criminal Procedure(2001), p. 217.14Iraqi Code of Criminal Procedure, paras 51-129.15Iraqi Code of Criminal Procedure, para. 57.16Iraqi Code of Criminal Procedure, para. 64.17Iraqi Code of Criminal Procedure, para. 63.

If the case is referred to trial, everything contained in the dossier constitutes evidence,and the trial court is entitled to treat all witness testimony in the investigative dossier ashaving been given at trial.The Rules of Procedure and Evidence provide that the SICT will establish a DefenseOffice, headed by a Principal Defender and supported by the Administration of theSICT, to ensure adequate facilities for counsel in the preparation of defense cases.18(Forproblems with the implementation of this provision, see below.)The trial chamber of the SICT consists of five judges.19The conduct of the trial iscontrolled by the judges, who decide which witnesses shall be called and what questionsare put to the witnesses and the defendant. Lawyers for the prosecution and the defensemay address questions to witnesses only through the judges.20Proceedings at the trialstage can be expected generally to entail a review of the evidence contained in thedossier, followed by statements by the lawyers for the prosecution and defense. Wherethe judges are satisfied of the guilt of the defendant, they will issue a verdict andsentence in a written opinion. Convictions may be appealed to the Appeals Chamber ofthe SICT, which is constituted by nine appeals judges including the President of theTribunal.21A conviction and sentence may be reversed, revised, or set aside and thecase sent back for re-trial.The SICT applies the penalties that are available in Iraqi law.22Where the defendant isconvicted of a crime that would also amount to murder or rape under domestic Iraqilaw, the penalties for those offenses will apply.23The death penalty is widely prescribedunder Iraqi law, including for the murder of more than one person.24Consequently,most offenses over which the SICT has jurisdiction may incur the death penalty.The SICT Statute requires that the judges, prosecutors and staff of the SICT, and theprincipal defense lawyer for the accused, be Iraqi nationals.25Non-Iraqi lawyers withexperience in international criminal lawmaybe appointed (at the discretion of the court’spresident) as “advisors” to judges and prosecutors, in order to provide “assistance in thefield of international law.”26But the exact role of advisors, who they are accountable to1819

SICT Rules, Rule 30(3)(3).SICT Statute, Art 4.1.20Code of Criminal Procedure, para. 168(B). In June 2003, the CPA issued Memorandum 3, section 4 of whichsuspended the requirement in para. 168(B) that parties address questions to witnesses via the court. Thisamendment does not, however, give parties a right to examine and cross-examine witnesses as it preserves thejudge’s complete discretion to permit questioning. It is also uncertain whether CPA Memorandum 3 will beapplied by the SICT, as there is no explicit reference to CPA Memorandum 3 in the SICT Statute. Article 16 ofthe SICT Statute makes the Code of Criminal Procedure the governing procedure for the trials, supplementedby the Rules of Procedure and Evidence.21SICT Statute, Art 4.2.22SICT Statute, Art. 24.23SICT Statute, Art. 24.4.24Penal Code 1969, para. 406 (1).25SICT Statute, Art 28 (judges, prosecutors and staff), Art 22.4(B) (principal defense lawyer). Non-Iraqi defenselawyers are permitted to assist the principal lawyer, but non-Iraqis cannot register as representing the accusedunless they are first approved by the Ministry of Justice.26SICT Statute, Arts 9.2, 10.9, 11.7.

and how they exercise an “assistance” function, are unspecified. The original version ofthe IST Statute permitted the appointment of non-Iraqi judges with expertise ininternational criminal proceedings to the trial chamber. The adopted version of theSICT Statute provides that non-Iraqi judges may be appointed only if a foreign state is aparty to proceedings before the SICT.27To date, no non-Iraqi judges have beenappointed to any chamber of the SICT. Almost the only source of non-Iraqi advisorsand assistance has thus far been the U.S. Embassy’s Regime Crimes Liaison Office(RCLO), established in March 2004 by the U.S. Department of Justice and funded by theU.S. Congress (see below).The first trials before the SICT will concern the aftermath of an assassination attempt onSaddam Hussein in the town of al-Dujail in 1982. It is alleged that reprisals for theassassination attempt led to the extrajudicial execution and “disappearance” of over 140individuals by government security forces, and the widespread destruction of property.Most of the victims were reportedly Shi‘a Muslims and were targeted because of theirsuspected allegiance to the Shi‘a Muslim political partyal-Da‘wa al-Islamiyya.28Amongthe defendants in the case are Saddam Hussein and several former senior governmentfigures, including former Vice-President Taha Yassin Ramadan, ‘Awwad Hamad al-Bandar al-Sa‘dun (former president of the Revolutionary Court) and Barzan al-Tikriti(Saddam Hussein’s half-brother and former head of Iraqi Intelligence). It is unclear withwhich crimes within the jurisdiction of the SICT the accused have been charged, as theindictments and particulars of the alleged offenses have not been made publiclyavailable.

IV. The SICT and the Right to a Fair TrialThe first trial before the SICT will be commencing in a political context of considerableinstability and uncertainty. In such a context, it is essential that the trials be fair andbeseen to be fairso that accusations that the trials amount to “victors’ justice” do not gaincredence. There is also evidence that victims of the former government demand atransparent, open legal process that publicly exposes the nature of human rightsviolations committed in Iraq.29A trial that meets international human rights standardsof fairness will also be more likely to ventilate and verify the historical facts at issue andcontribute to the public recognition of the experiences of victims of different religiousgroups and ethnicities.Essential Elements of a Fair TrialThe Republic of Iraq ratified the International Covenant on Civil and Political Rights(ICCPR) in 1971, and all successor governments remain bound by it. Article 14 of theICCPR provides that any person charged with a criminal offense is entitled to “a fair and2728

public hearing by a competent, independent and impartial tribunal established by law.”30A “fair trial” under the ICCPR means that a person being tried for a criminal offensemust be guaranteed, at a minimum, the following rights:31-To be informed of the charges against her/him in detail and promptly,in a language she/he understands;-To have adequate time and facilities for the preparation of a defenseand communication with counsel of her/his own choosing;-To be tried without undue delay; to be tried in her/his own presence,and to defend her/himself in person or through legal counsel ofher/his own choosing;-To examine witnesses against her/him and be able to obtain theattendance and examination of witnesses on her/his behalf, under thesame conditions as the prosecution;-Not to be compelled to confess guilt or incriminate her/himself;-To be able to appeal to a higher tribunal against conviction andsentence.32These basic fair trial guarantees apply irrespective of whether the legal system of thecountry conforms to an adversarial model (such as in the United States or the UnitedKingdom) or an inquisitorial model (such as in Iraq). They are the minimumrequirements for a trial to be considered “fair” in international law. The realization offair trial standards is particularly challenging where persons are accused of crimes such asgenocide, crimes against humanity and war crimes. Trials for these kinds of crimes oftencarry high political stakes, and require large amounts of time and resources in order toadequately prosecuteanddefend.At the same time, these crimes achieved recognition as such principally throughinternational law; the legitimacy of prosecuting them is inextricably linked to whether theprosecution meets international fair trial standards. Over the last fifteen years, since thecreation of the International Criminal Tribunals for the former Yugoslavia and forRwanda, a body of law and practice concerning trials for gross human rights violationshas emerged, and some benchmarks for prosecution, adjudication, the rights of theaccused and the protection of victims and witnesses, have been established.The SICT Statute specifies rights for the accused to a much greater extent than pre-existing Iraqi criminal law. Article 22 of the SICT Statute enumerates rights for theaccused that closely match the guarantees required by the ICCPR. Human Rights Watchcommends these provisions as necessary preconditions for fair trials before the SICT.However, the rights provided for under Article 22 of the SICT Statute are not adequatelyprotected by the Iraqi Code of Criminal Procedure – which is the principal procedure ofthe SICT33– or the SICT’s Rules of Evidence and Procedure (SICT Rules). The3031

A. Inappropriate Standard of Proof and Inadequate Protectionsagainst Self-incriminationThe right to a fair trial requires that the accused be found guilty only if the charge isproved beyond reasonable doubt.34The reasonable doubt standard is applied by allinternational criminal tribunals trying crimes such as crimes against humanity, war crimesand genocide.35Iraqi criminal law permits an accused to be convicted on the“satisfaction” of the judge.36This standard of proof is insufficient to assure a fair trial,particularly given the large evidentiary base and the multi-faceted elements of the crimethat must be proved in trials for genocide, war crimes and crimes against humanity. Aconviction must be based on a reasoned judgment that demonstrates the establishmentof each of the elements of the crime beyond reasonable doubt.International law protects a defendant’s right not to incriminate him- or herself, whichincludes a right to silence. A defendant cannot be compelled to testify against him- orherself, and a refusal to answer questions cannot be used as evidence of guilt.37TheSICT Statute duly provides that an accused has a right to silence and cannot becompelled to testify, and that silence cannot be a consideration in the determination ofguilt or innocence.38However, the Iraqi Code of Criminal Procedure permits the judgesto ask questions directly to a defendant, regardless of whether the defendant is willing totestify or has chosen to give an unsworn statement to the court. Where the defendantrefuses to answer a question posed by the court, “itwillbe considered as evidence

to the procedures followed by the court.” Unlike Article 20, this Article is

not

prefaced as “Subject to the Statuteand the Rules...” This suggests that the Code of Criminal Procedure will have priority over the Rules.34Human Rights Committee, General Comment 13,Equality before the Courts and the Right to a Fair andPublic Hearing by an Independent Court Established by Law (Article 14),13 April 1984, para.7;Flick,Vol. 6,Nuremberg Military Trials, 1189. The words “beyond reasonable doubt” are associated with the common lawsystem, while in civil law systems such as France, a finding of guilt requires the “intimeconviction du juge”(theinnermost conviction). The European Court of Human Rights has held that the two expressions have the samebasic substance: that doubts should benefit the accused and the evidence against should be sufficient that allreasonable doubts about her or his guilt are silenced. SeeBarberá, Messegué and Jabardo v Spain,EuropeanCourt of Human Rights, Judgment of 6 December 1988, para.77; Safferling,Towards an International CriminalProcedure,p. 259.35Rome Statute of the International Criminal Court, Art.66(3); Rule of Procedure and Evidence, InternationalCriminal Tribunal for the former Yugoslavia, Rule 87(A); Rules of Procedure and Evidence, InternationalCriminal Tribunal for Rwanda, Rule 87(A).36Code of Criminal Procedure, para. 213(A).37John Murray v. United Kingdom,European Court of Human Rights, Judgment of 8 February 1996, para. 45.The European Court of Human Rights recognizes that under very limited circumstances, the failure of adefendant to answer a question under interrogation could be “takeninto account in assessing thepersuasiveness of the evidence adduced by the prosecution.”(para. 47, emphasis added). In other words, adefendant’s silence cannot be treated as direct evidence of guilt and a conviction cannot be solely or mainlybased on the defendant’s silence.38SICT Statute, Art. 22(4)(f).

B. Inadequate Procedural and Substantive Steps to EnsureAdequate DefenseA trial that is fair and is seen to be fair requires a vigorous and competent defense.International human rights law protects a defendant’s right to an effective defense inrespect of the charges brought against that person, by guaranteeing the accused:unrestricted and regular access to legal counsel of his or her own choice at all stages ofcriminal proceedings,41or to counsel appointed by the court in any case where theinterests of justice so require, and without payment if the accused does not havesufficient means to pay for it42; adequate time and facilities to prepare a case in responseto the particular charges against the defendant, including facilities to ensure theconfidentiality of lawyer-client communications and the ability of the defendant toproperly instruct his or her lawyer43; and the right to confront and examine witnessesagainst the defendant, and call witnesses on behalf of the defense under conditions equalto those of the prosecution.44a. Access to defense counsel during the investigative phaseHuman Rights Watch is concerned that current arrangements by the SICT have notsufficiently safeguarded defendants’ right of access to counsel, or to adequate time andfacilities to prepare a defense.The U.S. military holds in custody on behalf of the SICT more than 90 so-called “HighValue Detainees”, comprising most of the senior leadership of the former government.The SICT, although established by law in December 2003 (as the IST, see above), didnot become functional until December 2004, and consequently the detainees did nothave access to counsel until that time. Yet in July 2004, twelve of the detainees werebrought before a judge of the Central Criminal Court of Iraq and notified of possible3940

charges punishable under the Penal Code.45Reports submitted to the U.S. Congress bythe U.S. Department of State record that, between June and December 2004, U.S.investigators from the RCLO reviewed seized government documents held in Qatar inorder to question detainees, and questioned thirty of the detainees.46Prima facie, itwould appear that this questioning occurred before any of these detainees had access tolegal counsel, and it is impossible to determine whether they were properly informed oftheir right to counsel and freely waived that right.The SICT has stated to Human Rights Watch that the court will not use as evidenceagainst the detainees statements that were given by detainees without defense counselpresent, but may use the statements as a basis for further investigation. Human RightsWatch urges the SICT to ensure that evidence obtained before detainees couldeffectively and freely exercise their right to be represented by counsel is not admittedagainst them.Iraqi lawyers acting for several of the accused alleged that they faced difficulties ingaining regular access to their clients, and other obstacles. Among their allegations arethat:•The SICT has delayed or failed to accept their applications to register ascounsel for defendants, and therefore the lawyers could not gain access tothe accused. Some defense lawyers have claimed that families of the accusedgranted them power of attorney, but that this power of attorney was notcertified by the SICT. Without certification, the defense lawyers could notrequest access to the accused and therefore were unable to defend them.•Foreign lawyers’ registration as defense counsel was not facilitated inpractice. Several foreign lawyers submitted documentation to register ascounsel for the defendants through the Iraqi Bar Association. These weresubsequently not approved.•Requests for appointments to meet with defendants were not responded topromptly, or when access was given, it was given with little or no priorwarning, or only when their client was due to be questioned by aninvestigative judge.•A U.S. official with knowledge of Arabic was present in the room when oneof the lawyers conferred with his client.•It was a matter of general complaint that when a defendant was questionedby an investigative judge, his lawyer was not given advance notice about thehearing or its subject matter. In some cases, counsel requested and weregranted permission to visit their clients, but upon arrival counsel found thata questioning session by the investigative judge had been scheduled withouttheir knowledge. As a result, the lawyers claimed that they felt unpreparedto adequately advise their clients during questioning. The visits with theRobert Worth, “Saddam Hussein Sees Lawyer for First Time Since Capture,”New York Times,December 17,2004.46Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction(October 2004), I-28; Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Reliefand Reconstruction(December 2004), I-41.45

clients themselves were delayed until after the questioning by theinvestigative judge. A defense counsel claimed that on one occasion thequestioning by the judge lasted five hours, leaving only thirty minutes forcounsel to meet with the defendant afterwards.No access to documents or evidence was given during the course ofinvestigations.Transcripts of judicial questioning were not made available during the courseof the investigation, despite repeated requests from defense counsel. Insome cases, defense counsel were advised by the court that transcripts wouldbe made available at a later date, but were not. In another case, a defensecounsel was told by the court that the transcripts would be included in thedossier, but they were not.When the dossier was transferred to the trial court, defense counsel were notprovided with adequate facilities at the court to review the dossier. Defensecounsel claimed that they had no option but to sit in the public receptionarea of the court building while reviewing the dossier, and the amount oftime granted to view the dossier during these visits was limited.

Human Rights Watch raised some of these allegations with the SICT. The SICTrejected claims that it had not adequately facilitated accused persons’ right to meet withand instruct counsel. The SICT attributed defense counsels’ claims of difficulties inmeeting with or representing the accused to a lack of due diligence on the part ofdefense counsel. The SICT offered to make available to Human Rights Watchdocuments that would verify the SICT’s contention that it had not impeded the defensecounsels’ ability to meet with or represent the accused, an offer the organizationaccepted. At the time of writing, however, the SICT had yet to make thisdocumentation available.The allegations made by defense counsel are sufficiently serious to warrant investigationas possible violations of basic fair trial guarantees. Human Rights Watch urges the SICTto conduct a credible and impartial assessment of these claims, if they are raised bydefendants at trial. If any of the allegations are found to be warranted, the SICT shouldtake such measures as may be necessary to remedy any unfairness or prejudice accruingto the defendant.Apart from being present during the questioning of their client by an investigative judge,defense lawyers appear not to have been present during the taking of other witnessstatements or the collection of evidence by the investigative judge. As noted above, inIraqi criminal procedure (as in other civil law jurisdictions) the dossier compiled by theinvestigative judge may be treated as evidence by the trial court.47The opportunity tocast doubt on the credibility of witnesses, submit comments on evidence and requestfurther investigations on behalf of the accused, is generally exercised at the investigative47

b. Equality of arms and adequate time and facilities for the preparationof a defense“Equality of arms” refers to the principle that every party to a case must be afforded areasonable opportunity to present his or her case under conditions that do not place theparty at a substantial disadvantage vis-à-vis the opponent.49This includes not onlyequality in presenting arguments, but also equality in being able to present evidence.Human Rights Watch is concerned that the degree of inequality of arms in the casesbefore the SICT court between the prosecution and the defense – in terms ofinstitutional support, expertise and training, and infrastructure – may be so great as todiminish the fairness of the trials.Trying an individual for crimes such as genocide, crimes against humanity and warcrimes presents a special challenge to equality of arms. The resources required toinvestigate and prosecute these crimes are very substantial, and often require thecooperation and assistance of foreign governments and intergovernmental organizations.The prosecution of such cases – particularly command responsibility cases – may involvehundreds of witnesses and thousands of exhibits for the prosecution,50as well as expertevidence in forensics, history, and military affairs. Because of this, the internationalcriminal tribunals have recognized that “equality of arms” in the trial of an internationalcrime implies not only procedural equality but also a measure of substantive equality inwhich the court may need toactively facilitatethe defense’s efforts to present witnessesand obtain evidence:Under the Statute of the International Tribunal the principle of equality of armsmust be given a more liberal interpretation than that normally upheld with regard toproceedings before domestic courts. This principle means that the Prosecution andDefense must be equal before the Trial Chamber. It follows that the Chamber shallprovideevery practicable facilityit is capable of granting under the Rules and the Statutewhen faced with a request by a party for assistance in presenting its case.51

Caroline Buisman, Ben Gumpert and Martine Hallers, “Trial and Error – How Effective is LegalRepresentation in International Criminal Proceedings?”International Criminal Law Review,Volume 5, Number 1(2005), pp. 1-82. In 2000, French criminal procedure was amended to strengthen the right of defense counsel torequest the investigative judge to interview or re-interview certain witnesses and seek other evidence. If theinvestigative judge refuses without good reasons, the defendant may appeal and have certain investigative actsdeclared “null”: Field and West, above.49Kaufman v Belgium(1986) 50 DR 98, 115;Foucher v France(1998) 25 EHRR 234 at [34].50For example, in theKrsticCase before the ICTY (alleging command responsibility for genocide), 128witnesses were heard and 1098 Exhibits were entered. In theKupreskiccase, involving 6 co-accused, 157witnesses were heard and 700 Exhibits were entered: Richard May and Marieke Wierda,International CriminalEvidence(2002), p.143.51Tadic,Appeals Chamber Judgment, July 15, 1999 at para.52 (emphasis added).

Under the SICT Statute, lead defense counsel must be Iraqi and the language of theSICT is Arabic. Non-Arabic speaking, non-Iraqi lawyers with direct experience indefending international criminal cases are effectively precluded from directlyrepresenting the accused in court. Iraqi defense lawyers, who have been isolated fromdevelopments in international criminal law and practice for three decades, have not beenprovided with training in international criminal law and procedure or forensic analysis.Meanwhile, the prosecution and the investigative judges have had the benefit ofextensive support and assistance from the RCLO, including training (see below).At the time of writing, a Principal Defender had been appointed but the Defense Office(see above) was not fully functional and provided very limited support. Defense lawyersworking on behalf of the accused claim to have had no contact with, or knowledge of,the SICT’s Defense Office. Further, the independence of the position of PrincipalDefender is not sufficiently protected, as the SICT’s Rules allow this person to bedismissed by the director of administration “with good cause”; the meaning of goodcause is not specified and no review is provided for.Some defendants may have access to substantial financial resources, but this will not bethe case for all and should not be presumed by the court. Moreover, in a very unstableand insecure environment such as Iraq, financial resources will not resolve seriousobstacles that the defense may encounter in locating and protecting witnesses on behalfof defendants, obtaining access to documents and securing the attendance ofinternational experts it may wish to call in support. Of particular concern is the deletionfrom the most recent version of the SICT Rules of Procedure of any requirement toconsult the Defense Office concerning protection measures for defense witnesses.52The SICT Statute as adopted has also deleted the requirement that the defense be able toobtain the attendance of witnesses on its behalf “under the same conditions as witnessesagainst him.”53Human Rights Watch urges the SICT to take positive steps to ensure equality of armsbetween prosecution and defense through the creation of an independent and adequatelyresourced Defense Office, and by taking the steps reasonably necessary to facilitate theproper presentation of a defense case on conditions equivalent to the prosecution. Inparticular, the court should be open to reasonable requests for the extension of time forpreparation of a defense. The SICT Rules require the prosecution to disclose allevidence against the defendant forty-five days before trial.54A period of forty-five daysis likely to be insufficient for the preparation of a defense to charges of crimes againsthumanity or genocide, where a case is likely to involve dozens of witnesses and hundredsor thousands of exhibits and much expert evidence. A defendant has a right to adequatetime to prepare his or her case,55and the meaning of “adequate” will depend on the sizeand complexity of the case against the defendant.56By way of example, when theprosecutor sought to introduce fourteen new charges of complicity in genocide against a5253

c. Inadequate protection of the right to confront and examinewitnessesThe defendant’s right to confront and examine witnesses against him or her is afundamental fair trial guarantee applicable to both common law and civil law systems. Itis essential to test the credibility of witnesses and their evidence. The right requires thatan accused should be given “adequate and proper opportunity to challenge and questiona witness against him, either at the time the witness makes his statement or at some laterstage in the proceedings.”58This does not mean that every witness must be heard andcross-examined, but a conviction cannot be based substantially on the statements ofwitnesses whom the defense is unable to cross-examine.59The SICT Statute is confused – and confusing – as to whether defendants can confrontand cross-examine witnesses against them. On the one hand, Article 22(4)(e) of theSICT Statute states that the accused has the right to examine witnesses against them.On the other hand, the Code of Criminal Procedure does not confer a right on thedefendant to cross-examine a witness at trial.60Paragraph 168 of the Iraqi Code ofCriminal Procedure gives judges discretion topermitparties to question a witness, via thecourt.61Rule 57 of the Rules of Procedure and Evidence states that examination, cross-examination and re-examination “must be granted”, but also states that the court must“take into account the provisions of Article 168 of the Iraqi Criminal Proceeding Law.”The result is ambiguity about the right to confront witnesses.Human Rights Watch urges the SICT to clarify its rules to provide defendants with anunambiguous right to question witnesses against them, and to ensure that defendantshave a genuine opportunity to exercise these rights at trial.

Kovacevic,Appeal Chamber Decision Stating Reasons for Appeal Chamber’s Order of May 29, 1998, July 2,1998 at paras. 28-31.58Delta v France,(1990) 16 EHRR 574 at para. 36.59Kosotovski v. Netherlands(1990) 12 EHRR 434; D.J. Harris, M. O. Boyle and C.Warbrick,Law of theEuropean Convention on Human Rights(1995) 212. The fair trial rights provided for in Article 6 of theEuropean Convention on Human Rights are essentially identical to those found in the ICCPR. Theinterpretations of these rights by the European Court of Human Rights are therefore applicable.60Code of Criminal Procedure para. 168(B).61As noted above, CPA Memorandum 3 section 4 abridged the requirement to direct questions via the court butdid not create a right of cross examination. CPA Memorandum 3 is nowhere mentioned in the Statute or Rulesof the SICT.

C. Concerns that the SICT May Not Appear to be Impartial andIndependentThe independence of a tribunal is essential to a fair trial. Decision-makers must be freeto decide cases before them impartially, on the basis of the facts and in accordance withthe law, without interference or pressure from any branch of government or otheractors. The appearance of impartiality is as important as actual impartiality where a trialconcerns highly politicized issues. Human Rights Watch is concerned that the SICT’sperceived and actual independence are not adequately safeguarded.a. Prejudicial comments by senior public officials and political figuresState officials and political figures must not prejudice the accused’s fair trial rights byencouraging the public to believe that the accused is guilty, or undermine the perceivedimpartiality of the tribunal by prejudging the assessment of the facts by the competentjudicial authority.62In an interview with Iraq’s state-funded broadcaster Al-Iraqiya on September 6, 2005,Iraqi President Jalal Talabani stated “I received the investigating magistrate who is incharge of questioning Saddam [Hussein]. I encouraged him to continue his interrogation.He told me good news, saying that he was able to extract important confessions fromSaddam Hussein.”63President Talabani added that “Saddam signed these confessions,”and that “Saddam Hussein is a war criminal and he deserves to be executed 20 times aday for his crimes against humanity.”64On June 24, 2005 Abdul Aziz Hakim, head ofthe Shi’a Muslim political party the Supreme Council of the Islamic Revolution in Iraq(SCIRI), stated in an interview with Reuters that “there is no doubt that Saddamdeserves more than just execution ... I am among those who are going to file a complaintfor killing 64 members of my family. For these crimes alone he deserves 64executions.”65Human Rights Watch urges Iraqi officials to refrain from comments such as these,which may undermine the fairness of the trials, and to instead encourage a climate ofrespect for the fair trials rights of the accused.

b. Politicization of control of the SICT and susceptibility of judges todismissalThe SICT has not been adequately protected from political struggles over its control,undermining its perceived independence from political groups that form part of thecurrent government of Iraq. Since the formation of the Interim Governing Council,Human Rights Committee, General Comment 13, para. 7;Gridin v. Russian Federation,20 July 2000,A/55/40, para. 8.3;Allenet de Ribemont v. France,European Court of Human Rights, Judgment of 10 February1995, para.35; ACHPR,International Pen and Others (on behalf of Ken Saro-Wiwa Jr. and Civil LibertiesOrganizations) v. Nigeria,Communication Nos. 137/94, 139/94, 154/96, and 161/97, decision adopted on 31October 1998, paras. 94-6.63BBC Worldwide Monitoring, “Iraq's Talabani says Saddam ‘confessed’ and deserves to die,” Al-Iraqiyah TV,Baghdad, in Arabic 17:35 GMT, September 6, 2005.64Ibid.65Reuters, “Iraqi Shiite Leader Wants Insurgents Wiped Out,” June 24, 2005.62

control over the SICT has been the subject of political disputation and interference byIraqi political factions. Interference has taken the form of attempts by Iraqi politicalleaders to dismiss or appoint SICT officials and judges thought to be loyal to one factionor another. The SICT’s first administrative director, Salem Chalabi, was dismissed inSeptember 2004,66and there were reportedly attempts to have “Chalabi loyalists”removed from the SICT and replaced by personnel selected by officials in thegovernment headed by interim Prime Minister Ayad Allawi. Subsequently, under thegovernment of Prime Minister Ibrahim Ja’fari, further attempts were made to effectwidespread dismissals within the personnel of the SICT through the “de-Ba’thification”process, which was led by Deputy Prime Minister Ahmad Chalabi. This process resultedin the dismissal of nine administrative staff, including the then Administrative Director‘Ammar al-Bakri (an Allawi appointee), but stopped short of dismissal of judicialpersonnel after intervention by both President Talabani and Prime Minister Ja’fari.67These developments seriously damage the SICT’s appearance of independence andimpartiality.Article 36 of the SICT Statute makes any person who was a member of the Ba’th Partyineligible to hold a position with the SICT. However, a de facto “pause” in theapplicability of Article 36 means that former Ba’th members have in fact been appointedto the SICT, although they remain vulnerable to dismissal should the article beenforced.68The susceptibility of judicial personnel to dismissal at any time is a threat tothe independence of the SICT. It creates the possibility that judges who belonged to theBa’th Party may be selectively dismissed or threatened with dismissal as a means ofinfluencing their judgments. Any procedure for the dismissal of judges must preserve theindependence of judicial personnel, for example by considering their performance on anindividual basis, and with avenues for review against a dismissal decision.Article 36 is at variance with the general rules for de-Ba’thification applied by theNational De-Ba’thification Commission, which render persons holding any of the topfour levels of Party membership potentially ineligible for government employment.69Membership of the Ba’th Party was a prerequisite for admission to judicial training underthe former government, and does not necessarily imply that the member was a supporterof the Ba’th Party or the government of Saddam Hussein, so former membership of theBa’th Party, without regard to rank or extent of participation, is unlikely of itself to besufficient to render a person unfit for office with the SICT. The eligibility of formerBa’th Party members for appointment with the SICT should be assessed on a case-by-case basis with regard to past performance and seniority of membership in the Ba'thParty.Nancy Youssef, “Salem Chalabi Reportedly Removed from Post Overseeing Saddam Trial”,Knight RidderNew Service,September 7, 2004.67John Burns, “Hussein Tribunal Shaken by Chalabi’s Bid to Replace Staff,”New York Times,July 20, 2005, A9;John Burns, “Ignoring U.S., Chalabi Pursues Attempt to Fire Hussein Judge,”New York Times,July 27, 2005,A12; Edward Wong, “Iraqi Leader Vows to Block Purges on Hussein Tribunal,”New York Times,July 29, 2005;Kathleen Ridolfo, “Iraq: Debaathification Commission Backs Away from Tribunal Purge,” AFP, July 29,200568Article 5(3)(b) of the SICT Statute provides that all appointments of judicial and other personnel to the SICTprior to its coming into forces shall remain binding, albeit “taking into consideration the provisions of Article 36”.69Coalition Provisional Authority, Order Number 1, De-Ba`thification of Iraqi Society, CPA/ORD/16 May2003/01, paras.2-366

c. The Role of U.S. AdvisorsThe CPA’s judicial sector assessment undertaken in June 2003,70and a later UNassessment mission,71both concluded that the forensic capacity for large-scale criminalinvestigations was non-existent, knowledge of international legal developments outsideIraq very limited, and that judges and lawyers had no experience with investigating andtrying crimes on the scale of crimes against humanity and genocide. In the absence ofthese technical capacities, and a source of funding, any Iraqi-led tribunal was likely to beheavily dependent on foreign assistance.72The U.S. Congress appropriated U.S.$75 million in 2003 to pay for investigations andprosecutions of former government officials in Iraq.73This has been expanded toU.S.$128 million.74The appropriation funds the RCLO, which comes under theauthority of the U.S. Ambassador to Iraq. Although claimed to play only a “supportrole” under the SICT Statute,75Quarterly Reports to Congress make clear that theRCLO’s staff of over fifty have played the lead role in many aspects of the operations ofthe SICT, including: the building of the courtroom,76the conduct of exhumations,77interviews with “High Value Detainees”,78review of seized documents and preparationof an evidence database,79and training of SICT staff. Over the last twelve months, theU.S. has actively sought out assistance for the SICT from other states and the U.N., inorder to bolster the legitimacy of the SICT and ward off claims that the court is U.S.dominated. The UK Foreign and Commonwealth Office has provided₤1.3million incapacity building and training assistance to the SICT,80but the SICT has facedconsiderable difficulty in obtaining international assistance from other sources. Thisdifficulty can be attributed in part to the SICT’s application of the death penalty (allEuropean donor countries are abolitionist), in part to the poor security situation in Iraq,and in part to donor government concerns about working within a U.S.-dominatedprocess.Report of the Iraq Judicial Assessment Team, June 2003.World Bank – UNDG Legal Needs Assessment Mission to Iraq,August 2003.72This reality was also acknowledged in an update to Congress which declared that “Currently, Iraq lacks theprofessional and technical investigative and judicial expertise to [prosecute crimes against humanity and warcrimes] on its own, and therefore needs Coalition assistance”: Department of State,Quarterly Update toCongress: Section 2207 Report on Iraq Relief and Reconstruction(January 2004), p. 43.73Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction(January 2004), p. 43.74Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction(April 2005), p. 30.75See comments of then-RCLO head Greg Kehoe, in Vanessa Blum, “A Slow Search for Justice in Iraq,”LegalTimes,January 24, 2005.76Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction(October 2004), I-28.77Ibid; Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief andReconstruction(January 2005), I-41.78Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction(July 2004), I-24; Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief andReconstruction(October 2004), I-28: “The RCLO has continued investigations of high value detainees (HVDs)... IST investigators havebeen involvedin the investigative process” (emphasis added).79Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Relief and Reconstruction(October 2004), I-28; Department of State,Quarterly Update to Congress: Section 2207 Report on Iraq Reliefand Reconstruction(January 2005), I-41.80UK FCO, Frequently Asked Questions on Iraq, available at:http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=10243139671497170

V. The Death PenaltyHuman Rights Watch opposes the death penalty as an inherently cruel and inhumanepunishment. As noted above, the death penalty will be widely applicable for crimes triedbefore the SICT. Human Rights Watch expresses its grave concern that Article 30(a) ofthe SICT Statute makes the carrying out of death sentences handed down by the tribunalmandatory, by prohibiting the commutation of death sentences by any governmentofficial. The mandatory application of the death penalty, without any opportunity forclemency, directly violates Iraq’s human rights obligations under the ICCPR. Article 6(4)of the ICCPR states that “anyone sentenced to death shall have the right to seek pardonor commutation of the sentence. Amnesty, pardon or commutation of the sentence ofdeath may be granted in all cases.”Article 30(b) requires that a sentence be executed no later than thirty days after a finaldecision is handed down. This creates the possibility that a person charged in severalcases can be tried, convicted and executed for one of those cases, before any other casesare subject to public trial, and as such is likely to deprive victims, witnesses and the Iraqipeople as a whole of the opportunity to conclusively establish which individuals werelegally responsible for some of the worst human rights violations in Iraq’s history. Theexecution of convicted individuals while other charges are pending against them meansthat there may never be a public accounting of the evidence for and against them inrelation to these events.

Jawad Khadim `Ali’s son Mustafa was “disappeared” at the age of 19 by the former Government’ssecurity forces, as part of a crackdown against the Al-Sadr uprising of 1999. In 2003, he receivedinformation that his son had been executed in May 1999.81In an interview with Human RightsWatch, Jawad Khadim `Ali reflected on his strong desire for revenge, but concluded that “That is not theway ... I have lived my life and I have buried my son ... I want justice.”82The first trials before the SICT will be a litmus test for whether it is up to the task ofdelivering justice. The charges against the accused are the most serious recognized bythe international community, and the SICT must be able to demonstrate that it iscapable of trying them fairly and independent of political pressure or apprehensions ofbias.8182