Introduction to the Laws of Kurdistan, Iraq

Working Paper Series

Public International Law:

International Criminal Law
Pub. 2015

Iraq Legal Education Initiative (ILEI) American University of Iraq, Sulaimani

Stanford Law School Kirkuk Main Road
Crown Quadrangle Raparin
559 Nathan Abbott Way Sulaimani, Iraq
Stanford, CA 94305-8610 www.auis.ed.iq
www.law.stanford.edu

1
Preface to the Series: Introduction to the Laws of Iraq and Iraqi Kurdistan
Iraq and Iraq's Kurdistan Region is at a compelling juncture in their histories. In the wake of the transition to a
democratic state, the country and region economy has prospered and its institutions have grown more complex. As
institutional capacity has grown, so too has the need for a robust rule of law. An established rule of law can provide
assurances to investors and businesses, while keeping checks on government and private powers and protecting
citizens’ fundamental rights. Institutions of higher learning, such as universities and professional training centers,
can and should play a key role in stimulating and sustaining this dynamic. Indeed, education is foundational.

This paper is part of the Introduction to the Laws of Iraq and Iraqi Kurdistan, a series of working papers produced
by the Iraqi Legal Education Initiative (ILEI) of Stanford Law School. This series seeks to engage Iraqi students and
practitioners in thinking critically about the laws and legal institutions of Iraq and Iraqi Kurdistan. Founded in 2012,
ILEI is a partnership between the American University of Iraq in Sulaimani (AUIS) and Stanford Law School
(SLS). The project’ seeks to positively contribute to the development of legal education and training in Iraq.

The working paper series devotes significant attention to pedagogy. By writing in clear and concise prose and
consulting with local experts at each step of the writing process, the authors strive to make the texts accessible to
diverse and important constituencies: undergraduate law students, lawyers and judges, government officials,
members of civil society, and the international community. By discussing the Iraqi and Kurdish legal regimes and
applying specific laws to factual situations, the authors model how to “think like a lawyer” for the reader. They also
use hypothetical legal situations, discussion questions, and current events to stimulate critical thinking and
encourage active engagement with the material.

These working papers represent the dedicated efforts of many individuals. Stanford Law School students authored
the texts and subjected each working paper to an extensive editing process. The primary authors for the initial series
including papers on Commercial Law, Constitutional Law, and Oil and Gas Law, were John Butler, Mark Feldman,
David Lazarus, Ryan Harper, and Neil Sawhney under the guidance of the Rule of Law Program Executive Director,
Megan Karsh. Jessica Dragonetti, Emily Zhang, and Jen Binger authored the remaining papers on domestic law.
Kara McBride, Cary McClelland, Neel Lalchandani, Charles Buker, Liz Miller, Brendan Ballou, and Enrique
Molina authored papers primarily concerned with Iraq’s engagement with international law. I also thank the former
and current deans of Stanford Law School, Deans Larry Kramer and Liz Magill, for their financial support, and the
Stanford Law School alum, Eli Sugarman (J.D., 2009), who acts as an advisor to the project.

The faculty and administration of American University of Iraq in Sulaimani provided invaluable guidance and
support throughout the writing process. Asos Askari and Paul Craft in particular played a leadership role in getting
the program off the ground and instituting an introductory law class at AUIS. Ms. Askari taught the first law class in
the 2014 spring semester. Former presidents of AUIS, Dr. Athanasios Moulakis and Dr. Dawn Dekle, provided
unwavering support to the project. And finally, a special thanks to Dr. Barham Salih, founder and Chair of AUIS,
without whose foresight and vision this project would not have been possible.

Finally, the authors of this series of papers owe an extraordinary debt of gratitude to many thoughtful Kurdish
judges, educators, lawyers, and others who work within Iraqi institutions for their critical insights. In particular, the
textbooks received vital input from Rebaz Khursheed Mohammed, Karwan Eskerie, and Amanj Amjad throughout
the drafting and review process, though any mistakes are solely the authors’ responsibility.

ILEI plans to continue publishing working papers. All texts will be published without copyright and available for
free download on the internet.

To the students, educators, legal, and government professionals that use this set of working papers, we sincerely
hope that it sparks study and debate about the future of Iraqi Kurdistan and the vital role magistrates, prosecutors,
public defenders, private lawyers, and government officials will play in shaping the country’s future.

Professor Erik Jensen

Stanford Rule of Law Program
Palo Alto, California

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INTERNATIONAL CRIMINAL LAW & IRAQ
1. INTRODUCTION

“People deserve to know about that. They need to understand, not so that they can pity the
region, but simply because it helps to explain so much of the way Kurdistan has tried to improve
itself afterwards. They need to understand to stop it from ever happening again. They need to
understand, because it is unacceptable that a genocide that was essentially ignored by many
countries around the world at the time should be continued to be ignored by history.”1
- Davan Yahya Khalil
In August of 2006, survivors of an attack that took place almost 20 years before had the chance
to tell their story. They told their stories in a courtroom in Baghdad. They were appearing before
a court known as the Iraqi High Tribunal. It was the opening days of a trial against Saddam
Hussein and 6 other former leaders for their role in the Al-Anfal campaign: a targeted attack on
the Kurdish people that occurred in the late 1980s.2

During the trial, lawyers presented evidence that the defendants had intentionally killed over
100,000 Kurdish people and destroyed over 4,000 Kurdish villages.3 The lawyers provided
evidence that chemical weapons were used against the town of Halabja, that Kurdish people
were forced to leave their homes, and that their villages were burned to the ground.4 Based on
this evidence, the lawyers asked the court to find that the defendants had violated international
criminal law.

As we will see, international criminal law can help societies respond to terrible tragedies like the
Al-Anfal campaign. International criminal law refers to the set of rules developed to address
crimes seen as particularly heinous, massive in scope, or international in nature. This area of law
also governs the creation of special institutions to address such crimes. Further, international
criminal law can help victims and societies move past these terrible events. In this chapter, we
will learn about and explore these various aspects of international criminal law.

1.1 Overview
This chapter provides an introductory discussion of international criminal law, with a particular
focus on how this field has impacted and been shaped by Iraqi experiences.

1
Davan Yahya Khalil, Kurdistan: Genocide and Rebirth, (CreateSpace Independent Publishing Platform, 2013),
excerpt available at: http://www.gulan-media.com/english/articles.php?eid=29&id=152.
2
Clark Gard, The Anfal Trial and the Iraqi High Tribunal, Update Number Three: The Defense Phase and the
Closing Stages of the Anfal Trial, International Center for Transitional Justice, 2-5,
http://ictj.org/sites/default/files/ICTJ-Iraq-Anfal-Tribunal-2006-English2.pdf.
3
Abdel Hamid Zebari. Al-Monitor: The Pulse of the Middle East - Iraq Pulse, "Iraqi Kurds Pressure Baghdad to
Join ICC ." Last modified February 27, 2013. Accessed February 9, 2014. http://www.al-
monitor.com/pulse/originals/2013/02/iraq-kurd-icc.html.
4
Ibid., 2-3.

3
Public international law provides rules that help shape the conduct of countries. Public
international law helps to define the relationships, rights, and responsibilities that states possess.

International criminal law, however, is unique because it is primarily concerned with the conduct
of individuals. In particular, international criminal law prohibits people from committing certain
acts that are defined as crimes by international law. When individuals are accused of committing
certain international crimes, international criminal law provides various structures to punish
those individuals. International crimes are violations of international law that are universally
recognized to be particularly serious.

In this chapter, we will explore these various aspects of international criminal law. We will first
start by examining the fundamentals of international criminal law. In Part 2, we will briefly study
the history and purposes of international criminal law. Then, in part 3, we will study the four
major international crimes: the crime of aggression, war crimes, crimes against humanity, and
genocide. After that, we will look at how various institutions prosecute international crimes in
Part 4. Finally in Part 5, we will focus on how the Iraqi High Criminal Court handled the
prosecutions of Saddam Hussein and other former political leaders of the Ba’ath party for
violations of international criminal law.

2. THE HISTORY, SOURCES, AND PURPOSES OF INTERNATIONAL

CRIMINAL LAW
Before we explore the modern form of international criminal law, it is important to understand
how this field of law developed over time. Once we learn this history, we can better understand
how international criminal law works in practice today. After we explore the history, we will
explore the basis for international criminal law, and the reasons why an international criminal
law system even exists.

2.1 A Brief History of International Criminal Law

Compared to other areas of the law, the origins of international criminal law are relatively recent.
As this section will explore, the vast majority of development in the field has taken place over
the past 70 years, since the end of the Second World War in 1945.

While the roots of international criminal law can be traced back many centuries, the modern
system of international criminal law began in the early 20th century.5 At the end of the First
World War in 1919, representatives from the Allied Powers (which included the United States,
the British Empire, France, Italy, and Japan) signed a peace treaty with Germany known as the
Treaty of Versailles.6 In addition to outlining the conditions of Germany’s surrender, the treaty
stated that the former leader of Germany, Wilhelm II, should be tried before an international

5
Robert Cryer, Prosecuting International Crimes, (United Kingdom: Cambridgue University Press , 2005), 9-31.
6
Anthony Cassese, International Criminal Law, 2nd ed., (New York: Oxford University Press, 2008), 317.

4
tribunal for his “supreme offence against international morality and the sanctity of treaties.”7
Wilhelm II, however, escaped from Germany and was never prosecuted.8

It was the conclusion of the Second World War, then, that is most often recognized as the
starting point of modern international criminal law. During the war, the Nazi regime in Germany
engaged in the horrific and systematic killing of Europe’s Jewish population. By the war’s
conclusion, the German forces had killed more than 6 million Jewish people.9 At the end of the
war, Great Britain, the Soviet Union, France, and the United States captured 24 of the Nazi’s
highest-ranking officials.

Because the Nazis’ crimes were so widespread and horrific, the Allied Countries created the
Charter of the International Military Tribunal (“IMT”).10 The Charter charged the 24 Nazis with
three new international crimes: crimes against peace, crimes against humanity, and war crimes.11
These crimes were designed to prevent countries from starting aggressive wars against other
countries. They were also designed to prevent future individuals from committing terrible crimes
during wars, like the Nazis had done. The IMT also set up a system for the prosecution of Nazis.
In 1945, the trial took place in Nuremberg, Germany. In this trial of incredible importance, many
of the Nazi leaders were found guilty of international crimes.12 In 1946, Japanese leaders were
also prosecuted in Tokyo, Japan for international crimes committed during the war.13

This brief history of international criminal law shows that its origins are largely based on the
First World War and the Second World War. Both of these wars were largely fought by Western
countries, including Great Britain, France, Germany, and the United States. As a result, some
scholars have criticized international criminal law by arguing that it is a reflection of Western
values, instead of being a reflection of truly international values. For example, scholar Frédéric
Mégret believes that “international criminal justice is a manifestation of Western imperialism.”14
Other scholars, however, reject this view. Farhad Malekian argues that “international criminal
law does not ignore Islamic law.”15 His view is that international criminal law incorporates more
than just Western conceptions of law. Keep this debate in mind as we proceed throughout this
chapter.

7
Ibid., 317-318.
8
Ibid., 318.
9
Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (London: The Bodley Head, 2010), 45.
10
Charter of the International Military Tribunal, art. 6(a), annexed to Agreement for the Prosecution and Punishment
of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT
Charter].
11
Robert Cryer, Prosecuting International Crimes, (United Kingdom: Cambridgue University Press , 2005), 39.
12
Ibid., 40.
13
Ibid., 44.
14
Christine Schwobel, Laura Dawson, and Joycelin Okubuiro, "Critical Approaches to International Criminal Law
Conference, 6-8 December 2012." (conference report., University of Liverpool , 2010),
http://www.harvardiglp.org/wp-content/uploads/2013/03/Conference-report_WEB.pdf.
15
Farhad Malekian, Principles of Islamic International Criminal Law: A Comparative Search, (Leidin: Brill, 2011),
xxiv.

5
Even though international criminal law has distinctly Western roots, it has since been applied in
various parts of the world. Since the end of the Second World War, international criminal law
has changed rapidly. Countries have entered into treaties that further define international crimes.
International organizations have created tribunals to prosecute international crimes after conflicts
in the countries of Yugoslavia and Rwanda. Early in the 21st century, a new permanent court
called the International Criminal Court began hearing international criminal law cases. And in
the last 10 years, Iraq formed a special court to prosecute Saddam Hussein and other former
leaders of the Ba’ath party for international crimes. This chapter will introduce and consider all
of these recent developments in the field of international criminal law.

Discussion Question
1. Why do you think international criminal law has developed so rapidly in the last 60 years?
2. What international events and trends may have contributed to this rapid development?

2.2 The Sources of International Criminal Law

As noted in the preceding section, the Allied Forces created new international crimes at the end
of the Second World War. With this in mind, it is important to ask: what is the basis for these
international crimes? In other words, what are the major sources of law in the international
criminal law field?

The answer is that the sources of international criminal law are very similar to the sources of
public international law. Generally, there are five main sources of international criminal law:
treaty law, customary international law, general principles of law, judicial decisions, and
“learned writings.”16

Treaties have an especially important role in the context of international criminal law. Since the
prosecution of the Nazis at the International Military Tribunal, countries have entered into many
treaties related to international criminal law. These treaties generally place a duty on countries to
prevent and prosecute certain international crimes. For example, in 1948, the United Nations
General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of
Genocide” (“CPPCG”).17 The CCCPG states that all countries that sign the treaty are obligated
to prevent and punish acts of genocide (a term that will we will explore later in the chapter).18
This treaty and other agreements between countries provide the majority of the law that make up
international criminal law.

16
International Criminal Law Services, What is International Criminal Law?, War Crimes Justice Project, 5,
http://wcjp.unicri.it/deliverables/docs/Module_2_What_is_international_criminal_law.pdf.
17
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277,
[hereinafter CPPCG].
18
Ibid.

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 2.3 The Purposes of International Criminal Law
Another basic question to ask is why international criminal law exists in the first place. Iraq, like
all other countries, already has its own set of criminal laws. These countries could prosecute
someone who committed terrible crimes within their borders in their domestic courts. Given that
countries have their own domestic criminal law and court systems, one may wonder: what is the
purpose of having a system of international criminal law?

Though there is no “correct” answer to this question, there are several possible answers. First,
international criminal law is designed to address the world’s most serious atrocities. Countries
punish terrible crimes such as murder and rape in their own domestic courts. But in certain cases,
these crimes are committed on such a large scale and in a particularly horrific manner. For
example, the crimes that the Nazis committed during the Second World War were different than
a domestic murder case. The Nazis committed millions of murders, they targeted civilians during
a time of war, and they attempted to destroy an entire racial and religious group. International
criminal law recognizes that this type of crime is different than the crime of one person killing
another person. International criminal law, then, is designed to punish the individuals who
commit these crimes. Because these crimes are of such a high magnitude and because they are
universally condemned, international criminal law seeks to punish them whenever and wherever
they occur, regardless of any domestic laws.

A second and related reason that international criminal law exists is that countries have an
interest in national security. International crimes often have a massive impact on individuals, the
countries where they are committed, and even other countries around the world. Countries use
international criminal law to punish those who commit these crimes with the goal of preventing
future individuals from committing similar crimes.

A final reason that international criminal law exists is that domestic criminal law systems may
not be equipped to handle such large and complex crimes. A single country may not have the
proper criminal provisions in their penal codes to address the alleged crimes. Or a domestic court
system may not have the capacity to handle complex evidence, or to hear thousands of victims’
claims. Also, domestic courts may struggle to adjudicate cases in the aftermath of bitter conflicts.
Consider that in a civil war, for example, the two opposing sides will often be accused of
committing terrible crimes against one another. It may be difficult for a domestic court based in
that country to adjudicate a case without being accused of showing bias to one of the opposing
sides.

In addition to thinking about why an international criminal law system exists, we also want to
critically think about the major goals of international criminal law. International criminal law can
promote many different goals in a society. First, international criminal law can serve the purpose
of restoring the rule of law. Though there is no single definition, the rule of law means that laws
should be respected in a society, and that they should apply equally to all people. International

7
crimes are generally committed during times of conflict. Some times these conflicts are between
different countries. Other times, these conflicts take place within a single country. In either
scenario, these conflicts undermine a society's rule of law. For example, government leaders may
disregard the law during times of conflict. The prosecution of international crimes can help a
society restore the rule of law. A new government may prosecute the crimes of a prior leader to
show that the new government is committed to following the law. This prosecution can also
restore the principle that all people—including the country’s leaders—must follow the law.

Second, a major goal of international criminal law is accountability. Accountability is the

principle that people are responsible for the actions they take. In the context of international
criminal law, the prosecution of international crimes can punish those who were responsible for
committing terrible crimes. Prosecution of these crimes, therefore, can hold former leaders
accountable for their crimes. Punishment also sends a signal that such crimes will not be
tolerated in that society.

Third, international criminal law can help restore relationships between different groups in
society. During conflicts, societies are often fractured into different groups. Many times these
groups are split along ethnic, religious, or racial lines. After these conflicts have passed,
international criminal law can help these different groups reconcile with one another. As we will
see, some aspects of international criminal law can bring different groups together to address
past violence or divisions between the groups.

Fourth, international criminal law can be used to bring justice to victims of the terrible crimes
that occurred. A trial for international crimes shows that a society recognizes that many people
were harmed by the alleged crimes. Just as an international criminal trial can restore stability in a
society, it can help restore dignity in the individuals who survived the mass atrocities.

Therefore, international criminal law can help promote many goals: the restoration of the rule of
law, accountability, reconciliation, and justice for victims. As we will see, it is difficult for
societies to achieve all of these goals at the same time. In fact, these goals often conflict with one
another. Later in this chapter, we will discuss how international institutions have been developed
in order to achieve some of these different goals. For now, remember the purposes underlying
international criminal law as we proceed to learn the basic types of international crimes.

Discussion Question
1. As noted above, international criminal law can help further a number of goals in a society,
including the rule of law, accountability, reconciliation, and victim justice. If you had to
prioritize one of two of these goals over the others, which would you select? Why?

8
3. SUBSTANTIVE INTERNATIONAL CRIMES
So far in this chapter, we have reviewed the general background of international criminal law.
We have studied how modern international criminal law developed in response to the terrible
crimes of the Second World War. We also started to think about why a system of international
criminal law is necessary. Refer back to this material as we progress throughout this chapter.
When we study modern cases, it may be helpful to think about how much international criminal
law has changed over time. It may also be helpful to ask yourself whether the core purposes of
international criminal law are being achieved.

We will next turn to the specific crimes that are punishable under international criminal law.
Think for a moment about the crimes that are punishable under domestic Iraqi criminal law. You
may be thinking about the crime of murder, or the crime of robbery, or the crime of rape. Iraqi
courts apply domestic law in punishing these crimes. International criminal law punishes a
different set of crimes known as international crimes. As mentioned earlier, international crimes
are serious violations of international law. We will study the 4 major international crimes: the
crime of aggression, war crimes, crimes against humanity, and genocide. Our first goal is to fully
understand the definitions of these four international crimes.

3.1 Crime of Aggression

The first substantive international crime that we will explore is the crime of aggression. The
crime of aggression is an international crime that punishes military or political leaders who
aggressively start wars in violations of international law.

The modern crime of aggression has its roots in the aftermath of the Second World War. After
the Second World War, the Allies prosecuted the Nazi leaders for “crimes against peace.”19 The
International Military Tribunal defined crimes against peace as the “planning, preparation,
initiation or waging a war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or conspiracy.”20 In other words,
the crime against peace was designed to punish those who deliberately start wars that violate
international law.

Since the Second World War, the crime against peace began to be known as the crime of
aggression. In 2010, a group of United Nations member countries came together and agreed on
the definition for the crime of aggression.21 Let us take a look at the precise legal definition:

Crime of Aggression22
19
IMT Charter, Art. 6.
20
Ibid.
21
International Criminal Court, "The Review Conference of the Rome Statute." Accessed February 9, 2014.
http://www.kampala.icc-cpi.info/.

9
Article 8
The planning, preparation, initiation or execution, by a person in a position effectively to
exercise control over or to direct the political or military action of a State, of an act of aggression
which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the
United Nations

Look closely at this legal definition. There are a few key elements of this definition. First, the
definition makes clear that an individual can be prosecuted for the “planning” or “preparing” of
an aggressive war. Thus, an individual can be punished, even if a war is not actually started.
Second, the definition focuses on those who “exercise control.” This means that the definition
applies to the leaders that make the decision to start a war. Third, the definition requires that only
the most “manifest”—in other words, serious—violations of international law can be punished as
a crime of aggression.

For Further Consideration

Let us now test our understanding of the crime of aggression by analyzing a real-life scenario
involving Iraq.
Some international leaders and scholars have argued that the 2003 invasion of Iraq led by the
United States fit under the definition of a crime of aggression. Shortly after the invasion by
coalition forces in 2003, Iraq’s Ambassador to the United Nations, Mohammed Aldouri, believed
the military action was “a violation of international law” and further said, “it seems that the war
of aggression against my country has started.”23 In support of this view, some legal experts noted
that the invasion into Iraq was neither made in self-defense nor was it approved by a separate
United Nations resolution.24 Notably, the International Commission of Jurists stated that “a war
waged without a clear mandate from the United Nations Security Council would constitute a
flagrant violation of the prohibition on the use of force.”25
There were others, however, who disagreed with this viewpoint. Specifically, they believe there
was an international legal basis for the war. For example, the British government defended the
war by pointing to United Nations Security Council Resolution 1441, which was passed in
October 2002.26 The Resolution gave the Iraqi government a “final opportunity” to comply with
its nuclear weapons disarmament obligations and warned that there would be “serious

22
Rome Statute of the International Criminal Court, Art. 8 bis, July 17, 1998, 2187 U.N.T.S. 3 [hereinafter
Rome Statute].
23
Associated Press, "Iraq plans to file U.N. complaint." Last modified March 20, 2003. Accessed February 9, 2014.
http://usatoday30.usatoday.com/news/world/iraq/2003-03-20-un-iraq_x.htm.
24
International Commission of Jurists, "ICJ deplores move towards a war of aggression on Iraq." Last modified
March 18, 2003. Accessed February 9, 2014. http://www.icj.org/icj-deplores-moves-toward-a-war-of-aggression-on-
iraq/.
25
Ibid.
26
The Guardian, "A Case for war: Lord Goldsmith's published advice on the legal basis for the use of force against
Iraq ." Last modified March 17, 2003. Accessed February 9, 2014.
http://www.theguardian.com/world/2003/mar/17/iraq2.

10
consequences” as a result of continued violations.27 Based on this language in the Resolution,
some scholars have argued that the war was started legally.
This dispute shows that the crime of aggression can be subject to different interpretations.

3.2 War Crimes

Next, we will consider the international crime known as war crimes. Like the prior section, we
will first define the crime before studying a few examples.

War crimes, like the crime of aggression, were also formally developed at the end of the Second
World War. Most notably, a series of treaties known as the Geneva Conventions provide the
basis for understanding war crimes. In particular, the Fourth Geneva Convention, which was
passed in 1949, states that “grave breaches” during wartime should be punished.28 Article 147
provides a few examples of these “grave breaches,” including “willful killing, torture or inhuman
treatment, including biological experiments.”29 The “grave breaches” provision in the Fourth
Geneva Convention is what we now refer to as war crimes. In defining war crimes, it may be
helpful to focus on two main components. War crimes are individual actions that 1) seriously
violate international law, and 2) that are committed during times of war. International law sets
the rule for what is acceptable behavior during wartime. War crimes are serious violations of
those rules.

An example may be helpful in understanding this definition. Imagine there is a soldier named
Ivan and he is from Bulgaria. Now imagine that Bulgaria is at war with Turkey. If Ivan attempts
to kill a soldier from Turkey, then no war crime has been committed. In the context of war, it is
expected that a soldier from one country may attempt to harm a soldier from an opposing
country. But now consider that Ivan has attempted to kill an innocent civilian in Turkey. Because
the targeting of civilians is prohibited under international law, Ivan has committed a war crime.

Short Exercise
1. Imagine that Ivan, the soldier from Bulgaria, captures a soldier from Turkey. If Ivan tortures
the soldier from Turkey, has he committed a war crime?

27
The Guardian, "Full text, Iraq Legal Advice: The full text of the advice about the legality of war with Iraq given
by the attorney general, Lord Goldsmith, to the prime minister, Tony Blair, on March 7 2003." Last modified April
25, 2005. Accessed February 9, 2014. http://www.theguardian.com/politics/2005/apr/28/election2005.uk.
28
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3526,
75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
29
Ibid., Art. 147.

11
While many different actions may violate international law and be considered war crimes, there
are a few general categories of war crimes. First, “war crimes may arise from the use of
prohibited means or methods of warfare.”30 For example, if soldiers use chemical weapons, then
they have committed war crimes. Second, war crimes occur when soldiers target actions “against
persons not involved in active hostilities.”31 The soldier who targets civilians has committed a
war crime. A third category of war crimes occurs when individuals engage in particularly cruel
or inhumane behavior. Ivan in the Short Exercise above was guilty of committing this type of
war crime.

The International Military Tribunal gave the following definitions of war crimes:

War Crimes Definition 32

Article 6
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other
purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of
war or persons on the seas, killing of hostages, plunder of public or private property, wanton
destruction of cities, towns or villages, or devastation not justified by military necessity.

Note that the definition above uses the language “shall include, but not be limited to.” This
means that the war crimes listed are simply offered as examples. Other actions taken during war
may also violate international law and therefore would be war crimes as well. Can you think of
other examples of war crimes?

Let us now consider a few recent examples of war crimes. In almost every major war of the 20th
century, there have been serious allegations of war crimes. The current conflict in Syria has led
to many allegations. Though the crisis is ongoing at the time of this writing, there is credible
evidence that suggests that Syrian military forces have both used chemical weapons 33 and
conducted “mass executions” of civilians34—both of which would be war crimes. In fact,
according to “U.N. findings, the Syrian government and its intelligence agencies have used
widespread, systematic torture to interrogate, intimidate and punish people seen as opponents.
Torture has been used in detention centers, security branches, prisons and hospitals.”35 It should
also be noted that the U.N. has documented torture and executions by the opposing side: the
30
Sean D. Murphy, Principles of International Law, 2nd ed., (St. Paul: West, 2012), 421.
31
Ibid., 420.
32
IMT Charter, Art. 6.
33
United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic:
Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013, September
13, 2013, 1,
http://www.un.org/disarmament/content/slideshow/Secretary_General_Report_of_CW_Investigation.pdf.
34
Stephanie, Nebehay. Reuters, "U.N. documents new war crimes in Syria for future prosecution." Last modified
January 25, 2014. Accessed February 9, 2014. http://www.reuters.com/article/2014/01/25/us-syria-crisis-warcrimes-
idUSBREA0N1SV20140125.
35
Ibid.

12
Syrian rebel forces. It is common for both sides in a conflict to be accused of committing war
crimes.

A look at Iraq’s history shows it is likely that both the Iraqi government has committed war
crimes, and that foreign powers have committed war crimes against Iraqi citizens. For example,
the war between Iran and Iraq (from 1980-1988) produced many allegations of war crimes.
Notably, there is evidence that the Iraqi government used chemical weapons (including mustard
gas and nerve gas) that resulted in the deaths of many Iranian soldiers.36 More recently, U.S. and
British forces have been accused of war crimes during the war in Iraq. In 2007, 17 Iraqi civilians
were shot and killed in Nisour Square in Baghdad by a group of military contractors hired by the
United States government.37 The U.S. charged some of the involved individuals under U.S.
criminal law.38 In 2009, an American court dismissed the charges against five guards employed
by the U.S. security firm, Blackwater.39 Four of these guards were tried again in an American
court during the summer of 2014 and the case has gone to a jury.40 While the Blackwater guards
have been charged under U.S. criminal law, they have not been charged with war crimes.

3.3 Crimes Against Humanity

We will now take a brief look at another international crime: crimes against humanity. Crimes
against humanity are international crimes involving the widespread and systematic attacks
against civilian populations.

The Rome Statute provides a list of acts that are considered crimes against humanity when they
are committed against civilian populations. This list includes, among other crimes, murder,
enslavement, torture, and rape.41 Crimes against humanity also include the “persecution against
any identifiable group or collectivity” based on their “political, racial, national, ethnic, cultural,
religious, [or] gender” affiliations.”42

The Nazis’ horrific treatment of Europe’s Jewish population during the Second World War fits
this modern definition of crimes against humanity. The Nazis murdered Jewish people because
of their religion, enslaved them by making them work in concentration camps, and deported
them by forcing them to leave their homes.
36
E. van Heughten , and P.A. van Laar , The Iraqi Special Tribunal for Crimes Against Humanity , (Nimejen: Wolf
Legal Publishers , 2011), 29.
37
Al Jazeera, "Blackwater faces new charges in Iraq killings." Last modified October 18, 2003. Accessed February
10, 2014. http://www.aljazeera.com/news/americas/2013/10/blackwater-faces-new-charges-iraq-killings-
2013101805946849805.html.
38
Ibid.
39
Risen, James. The New York Times, “Before Shooting in Iraq, a Warning on Blackwater.” Last modified June 29,
2014. Accessed September 14, 2014. http://www.nytimes.com/2014/06/30/us/before-shooting-in-iraq-warning-on-
blackwater.html.
40
Chuck, Elizabeth. NBC News, “Blackwater Trial Goes to Jury: What’s at Stake.” Last modified September 2,
2014. Accessed September 14, 2014. http://www.nbcnews.com/storyline/iraq-turmoil/blackwater-trial-goes-jury-
whats-stake-n193666.
41
Rome Statute, Art. 7.
42
Ibid.

13
Let us first understand how crimes against humanity are different than war crimes. While both
crimes punish certain actions during times of conflict, there are differences between the two
crimes. The most important difference is that crimes against humanity must be part of a
government policy, or a widespread practice that is accepted by a government. There must be a
clear pattern of the illegal behavior for there to be crimes against humanity. Crimes against
humanity usually involve multiple acts and multiple victims. A war crime, by contrast, can be a
single act against a single person.

An example may help to illuminate this difference. If a single soldier purposefully kills a civilian
on one occasion, then a war crime has occurred. However, if a government directs all of its
soldiers to follow an official policy of executing civilians, then that government has committed a
crime against humanity.

While allegations of crimes against humanity are not as frequent as allegations of war crimes,
there still have been a number of prosecutions for crimes against humanity. We will explore one
of those prosecutions when we study the prosecution of former Iraqi leaders.

3.4 Genocide
“Genocide is a crime under international law, contrary to the spirit and aims of the United
Nations and condemned by the civilized world. Recognizing that at all periods of history
genocide has inflicted great losses on humanity….”43

These words come from the Convention on the Prevention and Punishment of the Crime of
Genocide (“CPPCG”), a treaty that was passed by the United Nations in 1948. In this section, we
study the subject of this treaty: the international crime of genocide. The basic definition of
genocide is deliberately killing or harming a group of people who share the same nationality,
religion, race, or ethnicity with an intent to destroy or seriously diminish the group.

The word genocide was first used in 1943 by Raphael Lemkin, a Polish-Jewish lawyer.44 The
term genocide is based on the Greek word genos (meaning tribe or race) and the Latin word cide
(meaning killing). Mr. Lemkin created the term in 1943 in the midst of the Nazis’ systematic
killing of Europe’s Jewish population. He believed that the term also accurately described the
Ottoman’s extermination of its Armenian population45–an event that the majority of historians
recognize as the Armenian Genocide of 1915.

Let us now study the legal definition of genocide. The CPPCG provides the following definition:

43
CPPCG, Preamble.
44
Alessandra, Stanley. The New York Times, "A PBS Documentary Makes Its Case for the Armenian Genocide,
With or Without a Debate." Last modified April 16, 2006. Accessed February 9, 2014.
http://www.nytimes.com/2006/04/17/arts/television/17stan.html?pagewanted=print.
45
Ibid.

14
 Genocide Definition46
In the present Convention, genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group
c. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group

Genocide, in other words, punishes those who intentionally attempt to kill or seriously harm a
specific group of people. As the 1948 definition makes clear, however, only certain groups
receive protection under the Convention. That is, only national, ethnic, racial, and religious
groups can be victims of genocide.

Short Exercise
1. The above legal definition of genocide has generated controversy. Most notably, some
scholars have criticized the definition because it is restricted to just four groups: national, ethnic,
racial, and religious groups.
Imagine that a political leader in one country targets all the member of an opposing political
party. Imagine this leader kills thousands of members of this one political party (and assume they
have a diversity of racial and religious backgrounds). Under the current legal definition, the
targeting of this political group would not be considered genocide.
Either by yourself or with a partner, develop 1 or 2 arguments why this act should be considered
genocide. Then, develop 1 or 2 arguments for why it is logical to exclude political groups from
the definition of genocide.

It was the Nazis’ actions during the Second World War that led to the formation of the CCPCG
in 1948. The CCPCG is a treaty designed to punish those who are responsible for the crime of
genocide. All countries that sign the treaty commit themselves to prevent and punish actions of
genocide both during times of war as well as during times of peace.47 The Iraqi government
became a party to the treaty in 1959.48

The CCPCG explicitly outlines the crimes for which individuals can be punished. In addition to
punishing individuals who commit genocide, the Convention also punishes the following crimes:
“conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to

46
CPPCG, Art. II.
47
CPPCG, Art. I.
48
United Nations, "Treaty Collection." Accessed February 10, 2014.
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&lang=en.

15
commit genocide; [and] complicity in genocide.”49 This means that individuals who plan to
commit genocide, or encourage others to commit genocide, can still be punished under the
Convention. Saddam Hussein and other former leaders of the Ba’ath party were accused of
committing genocide, which we will explore in Part 5 of this chapter.

4. THE PROSECUTION OF INTERNATIONAL CRIMES: AN

EXPLORATION OF DIFFERENT INSTITUTIONAL MODELS
We have now reviewed the four major international crimes: crime of aggression, war crimes,
crimes against humanity, and genocide. Remember these definitions as we continue throughout
this chapter. The next question we will consider is: once we suspect a person has committed one
of these international crimes, how can we hold that person accountable? In other words, what
options does a society have for responding to international crimes?

To understand this challenge, it may be helpful to consider a trial for a domestic crime. If Sinan,
an Iraqi citizen, is suspected of committing murder in Iraq, Sinan would likely be tried in Iraq
where the Iraqi criminal code will be applied. Compare this to the situation involving Saddam
Hussein. Saddam Hussein was the leader of Iraq and was accused of committing international
crimes, including genocide and crimes against humanity. After his regime was overthrown, Iraq
was faced with the challenge of how to respond to his widespread crimes and how to move
forward as a society.

Countries in this position are facing the challenge of transitional justice. According to the U.N.,
transitional justice is “the full range of processes and mechanisms associated with a society’s
attempt to come to terms with a legacy of large-scale past abuse.”50 Transitional justice, in other
words, is the options that a country has when it attempts to address and move beyond major
violations in a past conflict. After Saddam Hussein was removed from power, the new Iraq
government underwent the process of transitional justice. You may wonder: why is the term
“transitional” used? It is because a society that addresses its history of past abuses hopes to
transition into a stronger future.

Countries facing this challenge have taken different approaches. Some countries rely on their
own court system to prosecute international crimes. Other societies enlist the help of
international organizations to prosecute these complex cases. Still other countries chose to form
an international criminal court that has the sole purpose of prosecuting violations of international
criminal law. And some nations have chosen to avoid punishing individuals and instead have
focused on healing victims and their society.

Each of these options has important benefits and drawbacks. Recall, as we discussed earlier, that
international criminal law can help societies achieve a variety of goals. It can help a society
49
CPPCG, Art. III.
50
United Nations, Guidance Note of the Secretary General: United Nations Approach to Transitional Justice, 2,
http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf.

16
restore order after conflicts. International criminal law can be used to punish individuals
responsible for terrible crimes. It can help reconcile differences between conflicting groups. And
international criminal law can provide a degree of justice for victims of terrible tragedies.
Countries prioritize some of these goals over others when they make decisions about which
approach or approaches to take. We will now explore these different approaches to international
crimes in depth.

4.1 Prosecution in Domestic Courts

Though uncommon, some countries have empowered their domestic courts to prosecute
international crimes. This arrangement can take different forms. In some countries, international
crimes have been expressly outlawed under domestic laws. For example, the Democratic
Republic of Timor-Leste has punished genocide and crimes against humanity under Article 123
and Article 124 of their domestic penal code.51 Since these provisions are part of the domestic
criminal law code, domestic courts have the power to punish the crimes of genocide and crimes
against humanity.

In other countries, special domestic courts have been created for the sole purpose of hearing
cases about international crimes. For example, Bosnia created a Special War Crimes Chambers
in its own court system to hear international crime allegations.52 This is the option that Iraq chose
when it decided to prosecute the international crimes of its past regime.

There are both benefits and drawbacks to giving domestic courts the power to consider
international crimes. The most important benefit is that a country can retain control of its own
proceedings. By choosing to use a domestic court, Iraq did not have to rely on international
authorities to set up a court. However, one main drawback to using domestic courts is that they
may lack the expertise to handle international crimes. Some countries may not have a well-
functioning court system that can handle the prosecution of complex international crimes.
Another potential drawback is that domestic judges may have been partial to one side during the
conflict and, as a result, biased during the domestic court proceeding. This may actually provoke
further conflict between opposing groups in a society. We will closely examine the domestic
court approach when we explore the Iraqi tribunal.

4.2 Prosecution in Ad Hoc Tribunals

Domestic courts are not the only option for prosecuting international crimes such as war crimes
and genocide. In recent years, international courts have been created to hold trials related to
international crimes. One particular type of international court is known as an ad hoc tribunal,
which we will explore in this section.

51
Stanford Timor-Leste Legal Education Project, Introduction to the Laws of Timor-Leste: Criminal Law, 33,
http://www.stanford.edu/group/tllep/cgi-bin/wordpress/wp-content/uploads/2013/09/Timor-Leste-Criminal-Law.pdf.
52
Barry E. Carter, Phillip R. Trimble, and Allen S. Weiner, International Law, 5th ed., (New York: Aspen
Publishers, 2007), 1179.

17
Before we examine specific examples of ad hoc tribunals, let us understand the definition of ad
hoc tribunal. The phrase “ad hoc” means “for a specific purpose.” An ad hoc international
criminal tribunal, then, is a tribunal that is created for the specific purpose of prosecuting
international crimes linked to a particular conflict. These tribunals are formed for the purpose of
punishing those who commit international crimes.53 It is important to recognize the international
character of these tribunals. A single country does not create them. Rather, ad hoc tribunals are
formed by multiple countries coming together or with the help of an international organization.

Recall the International Military Tribunal (“IMT”) created at the end of the Second World War.
The IMT fits within the definition of an ad hoc tribunal. Multiple countries created the tribunal in
response to a particular conflict (the Second World War), and it had the purpose of punishing
individuals suspected of committing international crimes during that conflict.

During the 1990s, there was a resurgence of ad hoc tribunals in the aftermath of two major
conflicts. In 1993, the United Nations created the International Criminal Tribunal for Yugoslavia
(“ICTY”).54 The UN created an international court that had the power to prosecute international
crimes committed during the civil war in the former Yugoslavia. Just one year later in 1994, the
United Nations authorized the creation of the International Criminal Tribunal for Rwanda
(“ICTR”) to prosecute individuals involved in the Rwandan genocide.55 During the conflict, the
ethnic Hutus targeted and killed over 800,000 people, the vast majority of whom where ethnic
Tutsis.

Over the last 20 years, both the ICTY and ICTR have prosecuted military and political leaders
for international crimes. The ICTY had the power to bring charges against Slobodan Milošević ,
the former leader of Yugoslavia.56 Ultimately, the ICTY never had the opportunity to fully
prosecute Milošević before he died in prison. And the ICTR issued the world’s first-ever
conviction for the crime of genocide.57 These tribunals initially had the benefit of possessing the
support of the international community.

However, both tribunals have also been subject to a number of criticisms. First, both
international courts have been criticized for operating at too slow a pace. Second, both
international courts have been extremely costly.58 Each of the tribunals has cost more than $ 1
billion dollars.59

53
Sean D. Murphy, Principles of International Law, 2nd ed., (St. Paul: West, 2012), 424.
54
Carter et. al, 1184.
55
Carter et. al, 1187.
56
Ibid., 1186-1187.
57
Sean D. Murphy, Principles of International Law, 2nd ed., (St. Paul: West, 2012), 423.
58
Ibid.
59
Bardos, Gordon N. World Affairs, "Trials and Tribulations: Politics as Justice at the ICTY." Last modified
September/October 2013. Accessed October 12, 2014.
http://www.nytimes.com/2006/04/17/arts/television/17stan.html?pagewanted=print.

18
Third, and most importantly, critics have argued that the ICTY and ICTR did a poor job of
engaging the survivors of the respective tragedies. 60 The tribunals took place in separate
countries from where the conflicts occurred. The ICTY trial was held in The Hague, which is
located in the Netherlands. And the ICTR trial was held in Arusha, Tanzania. The geographic
distance meant that most survivors were unable to attend proceedings. Because the trials were
not broadcast on television in the home countries, most survivors had little awareness of the
tribunals’ activities. Adding to the issue of the relevance to survivors’ daily lives, the tribunals
employed very different systems of justice than what the survivors used in their communities.
For example, before the genocide in Rwanda, many disputes were resolved through community-
operated courts known as Gacaca courts. Following the genocide, many survivors did not focus
on the ICTR and instead relied on the Gacaca courts, which turned to hearing conflict-related
claims. These courts allowed many victims to directly address those accused of crimes. And,
while it took a long time, this system heard hundreds of thousands of claims against those who
were involved in the genocide.61

4.3 Prosecution in “Hybrid” Tribunals

A third option for prosecuting international crimes is to try cases before a hybrid (or mixed)
tribunal. These tribunals are called mixed tribunals because they mix elements of a domestic
court system with elements of the international criminal justice system.62 For example, a hybrid
tribunal often has foreign judges working alongside domestic judges.63 It may also “apply
domestic law that has been reformed to accord with international standards.”64 Ideally, a hybrid
tribunal attempts to combine the best parts of domestic courts with the best parts of international
courts.

This hybrid model can produce important benefits. Ideally, the benefits of domestic courts and
international courts would be combined. For example, the domestic country would still feel a
sense of control over its proceedings. At the same time, the international lawyers and judges
could provide expertise that the country may lack. Further, the two groups could learn from each
other. “International actors have the opportunity to gain greater sensitivity to local issues, local
culture, and local approaches to justice at the same time that local actors can learn from
international actors.” 65
While there are important benefits to using a hybrid tribunal, it is important to also consider the
potential drawbacks. One major problem is that the elements of the domestic criminal law
system will conflict with the elements of the international criminal law system. For example, if

60
Samantha Power, A Problem from Hell: America and the Age of Genocide, (New York: Basic Books, 2013), 496-
497.
61
BBC, "Rwanda "gacaca" courts genocide courts finish work." Last modified June 18, 2012. Accessed February 9,
2014. http://www.bbc.co.uk/news/world-africa-18490348.
62
Laura A. Dickinson, "The Promise of Hybrid Courts," American Journal of International Law (2003): 306.
63
Ibid.
64
Ibid.
65
Laura A. Dickinson, "The Promise of Hybrid Courts," American Journal of International Law (2003): 307.

19
there is a difference between international criminal law and the country’s domestic criminal law
on a particular topic, it could create confusion. Further, imagine another possible conflict.
Imagine that there is a court with both international judges and domestic judges. It is very
possible that the international judges gain more power than the domestic judges. Or the opposite
situation could occur. Either way, there is potential for conflict between the two sets of judges. It
may be difficult to find the right balance between the domestic elements and the international
elements.

Even though hybrid tribunals are a relatively recent phenomenon, there have already been a few
countries who have used them to prosecute international crimes. For example, the Special
Tribunal for Lebanon (“STL”) was created in 2007 to address the assassination of the country’s
former Prime Minister and the death of 22 other individuals.66 The STL, which is still ongoing,
has both domestic and international elements. It is applying domestic Lebanese criminal law on
terrorism.67 However, it also has an “international character” because it includes international
judges and the trial proceedings are taking place in the Netherlands.68

4.4 Prosecution in the International Criminal Court

As discussed above, international criminal prosecutions began in the second half of the 20th
century. During this time, domestic courts, ad hoc tribunals, and hybrid tribunals were
responsible for prosecuting international crimes. In part because there were so many different
ways to prosecute international crimes, there were some countries that wanted a single court
dedicated to handling international crimes. These countries recently succeeded, as countries
came together to create a court known as the International Criminal Court (“ICC”). The ICC
is a permanent international court designed to hear cases involving the four major international
crimes. In this section, we will explore the development and structures of the ICC. We will close
the section by analyzing Iraq’s relationship to the ICC.

4.4.1 History of the ICC

In 1998, representatives from 160 of the world’s countries gathered in Rome, Italy to discuss the
possibility of a permanent international court. After five weeks of negotiations, the diplomats
settled on the content of a treaty known as the “Rome Statute.” The Rome Statute vote was held
on July 17, 2002, and 120 nations voted in favor of passing the treaty. There were 7 nations
(Iraq, the United States, China, Israel, Qatar, Libya, and Yemen) that voted against the Rome
Statute and 21 nations who decided not to vote at all.69 The Rome Statute stated that the

66
Special Tribunal for Lebanon, "Creation of the STL." Last modified December 24, 2012. Accessed February 9,
2014. http://www.stl-tsl.org/en/about-the-stl/creation-of-the-stl.
67
Anthony Cassese, International Criminal Law, 2nd ed., (New York: Oxford University Press, 2008), 332.
68
Special Tribunal for Lebanon, "Creation of the STL." Last modified December 24, 2012. Accessed February 9,
2014. http://www.stl-tsl.org/en/about-the-stl/creation-of-the-stl.
69
Coalition for the International Criminal Court, "History of the ICC: Rome Conference." Accessed February 9,
2014. http://www.iccnow.org/?mod=rome.

20
International Criminal Court would be allowed to start hearing cases beginning on July 1, 2002.70
The court had the power to hear cases about crimes that occurred after that date.

The Rome Statute represented a major moment in history of international criminal law. Think
back to how the Nazis were prosecuted for international crimes in 1945. Less than 60 years later,
countries from all over the world created an international criminal court. This unique model for
the prosecution of international crimes has a number of interesting features. It has also been
subject to meaningful criticisms. We will explore both in this section.

4.4.2 Major Features of the ICC

The Rome Statute provides important guidelines for the types of cases that can be heard by the
ICC and how a case can be brought before the ICC.

Recall the major international crimes that we discussed earlier in this chapter: crime of
aggression, war crimes, crime against humanity, and genocide. The ICC can hear allegations
about all of these crimes. Specifically, Article 6 (Genocide), Article 7 (Crimes against
Humanity), and Article 8 (War Crimes) of the Rome Statute provide the legal definitions of those
crimes.71 As mentioned earlier, the Rome Statute did not provide a definition for the crime of
aggression. A definition for the crime of aggression was provided in 2010, and the ICC will have
to make the decision whether to hear crime of aggression cases in 2017.72

Imagine that the President of France is suspected of having committed war crimes and crimes
against humanity. Even though France signed the Rome Statute, the president could not
automatically be brought before the ICC. Instead, there are other important requirements that
must be met before a trial can start at the ICC. First, the ICC can only hear cases when it has the
power to do so. Articles 12 and 13 of the Rome Statute outline that one of the following
conditions must be met before the ICC has the power to hear the case:

o The state where the alleged crime was committed is party to the Rome Statute
o The person suspected of committing the crime is a national of a party to the Rome
Statute73
Articles 12 and 13 demonstrate that the ICC must consider where the crime allegedly took place,
and it must consider which country the alleged criminal is from.

Short Exercise

70
Coalition for the International Criminal Court, "About the Court." Accessed February 9, 2014.
http://www.iccnow.org/?mod=rome.
71
Rome Statute of the International Criminal Court, Arts. 6-8, July 17, 1998, 2187 U.N.T.S. 3.
72
International Criminal Court , "The Review Conference of the Rome Statute." Accessed February 9, 2014.
http://www.kampala.icc-cpi.info/.
73
Rome Statute, Arts. 12-13.

21
1. Take a moment to remember that both Iraq and the United States are not parties to the Rome
Statute. Now imagine that a United States soldier is accused of committing a war crime against
an Iraqi national in Iraq. Does the International Criminal Court have the power to consider this
allegation? Before answering the question, review the conditions (directly above) stated in
Articles 12 and 13 of the Rome Statute that must be met for the ICC to hear a case.

Now let us consider a different scenario. Imagine that a soldier from England is accused of
committing war crimes in Iraq. Also consider that England signed the Rome Statute. Could this
charge be brought before the ICC? The answer is yes because the English soldier is from a
country that has signed the Rome Statute. In fact, a complaint filed in 2014 alleges that British
military and political officials committed war crimes in Iraq. The complaint accused British
officials of torturing and sexually assaulting Iraqis, as well as conducting mock executions. It is
now the ICC’s decision whether it wants to investigate the case and bring charges against the
accused individuals.74

In addition meeting the requirements under Article 12 or 13, the International Criminal Court
must meet other requirements. Most importantly, the court must meet the requirement of
complementarity. Complementarity means that the ICC should only hear a case when the “State
is unwilling or unable genuinely to carry out the investigation or prosecution” of the alleged
crimes.75 In other words, the ICC is supposed to be a last option. The court is only supposed to
hear cases that have not been properly addressed by domestic courts.

4.4.3 Criticism of the ICC

While some had hoped that the ICC would be the solution to prosecuting international crimes,
many have been disappointed with the results from the first 12 years. So far, there have been two
main criticisms of the ICC. First, critics have noted the ICC’s slow pace. The ICC has only
successfully convicted one individual.76 Second, critics argue that the ICC has only targeted
leaders from African countries. Since the ICC officially was formed in 2002, the court has heard
21 cases from eight countries: Uganda, Mali, Ivory Coast, the Central African Republic, the
Democratic Republic of Congo, Sudan, Kenya, and Libya.77 In fact, the African Union has called
on its member countries to protest any future investigations against current African leaders.78

74
Jonathan Owen. The Independent, "Exclusive: Devastating dossier on 'abuse' by UK forces in Iraq goes to
International Criminal Court." Last modified January 12, 2014. Accessed February 9, 2014.
http://www.independent.co.uk/news/uk/politics/exclusive-devastating-dossier-on-abuse-by-uk-forces-in-iraq-goes-
to-international-criminal-court-9053735.html.
75
Rome Statute, Art. 17.
76
Ibid.
77
International Criminal Court, “Situations and cases.” Accessed October 12, 2014. http://www.icc-
cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx
78
Al Jazeera, "African Union urges united stand against ICC." Last modified February 01, 2014. Accessed February
9, 2014. http://www.aljazeera.com/news/africa/2014/02/african-union-urges-united-stand-against-icc-
20142111727645567.html.

22
As the ICC continues to develop, it will be interesting to see whether the court begins to hear
cases from all over the world. At the moment, Jordan and Tunisia are the only two countries
from the Middle East and North Africa region to be members of the ICC.79 While many
countries in the Middle East have applied international criminal law in other settings, there has
been a reluctance to join the ICC.

Iraq’s own decision about whether or not to join the International Criminal Court provides an
important case study.

4.4.4 Iraq’s Experience with the Rome Statute

Iraq’s decision whether or not to sign the Rome Statute has an interesting history, and is a
decision that is still relevant today. When the Rome Statute was first passed in 1998, the Iraqi
government voted against joining the International Criminal Court. In February 2005, the Iraqi
interim government signed the Rome Statute and became a party to the International Criminal
Court. However, just two weeks later, the Iraqi Council of Ministers reconsidered and decided to
withdraw Iraq from the Rome Statute.80 These actions have led to a debate within Iraq regarding
whether or not Iraq should be a party to the Rome Statute.

There are many who believe that Iraq should sign the Rome Statute. Support for signing the
Rome Statute is particularly high among Kurds. Reflecting on the international crimes
committed under the Saddam Hussein presidency, many Kurds believe that signing the Rome
Statute would help to prevent future atrocities. For example, the KRG Minister of Martyrs and
Anfal Affairs, Aram Ahmed, said, “This is the right way to build a new Iraq and to employ all
possible means to prevent the recurrence of such crimes in the future.”81

The support for Iraq to join the International Criminal Court has continued in recent years. In
2011, “the Parliament of the Kurdistan region issued a petition requesting Iraq’s Federal
Government to join the ICC.” 82 And in 2013, “the second conference on Kurds and the
International Criminal Court” was held in Erbil.83 There has also been international pressure on
Iraq to join the International Criminal Court. For example, the “Coalition for the International
Criminal Court” sent a letter to Prime Minister Al-Maliki in December 2013 asking for Iraq to
become a party to the ICC. The letter stated that the decision to join the ICC would “ensure

79
Coalition for the International Criminal Court, "Middle East and North Africa." Accessed February 9, 2014.
http://www.iccnow.org/?mod=region&idureg=13.
80
Coalition for the International Criminal Court, "Iraq." Accessed February 9, 2014.
http://www.iccnow.org/?mod=country&iduct=80.
81
Abdel Hamid Zebari. Al-Monitor: The Pulse of the Middle East - Iraq Pulse, "Iraqi Kurds Pressure Baghdad to
Join ICC." Last modified February 27, 2013. Accessed February 9, 2014. http://www.al-
monitor.com/pulse/originals/2013/02/iraq-kurd-icc.html.
82
Leila Hanafi and Brigitte Suhr. Coalition for the International Criminal Court, "Re: Prospects of Ratification of
the Rome Statute of the International Criminal Court." Last modified December 18, 2013. Accessed February 9,
2014. http://www.iccnow.org/documents/URC_Letter_Iraq_(EN).pdf.
83
Kuwait News Agency, "Kurdish int'l conf. on genocide against Kurds opens in Erbil." Last modified March 14,
2013. Accessed February 9, 2014. http://www.unpo.org/article/15647.

23
Iraq’s commitment to the Court and advance the principles of democracy, good governance,
justice, and the rule of law in the region.”84

There are some scholars, however, who oppose the existence of the ICC and believe countries
should resist joining. These opponents argue that the ICC is too slow and inefficient.85 Further,
they worry that decisions to prosecute individuals under the ICC are politically motivated.86 In
other words, they are concerned that the ICC does not actually represent international interests or
evenly apply legal principles, but rather it is simply a reflection of a few governments’
preferences. Some opponents of the ICC also think that the ICC has too much power.87

Discussion Question
1. Recall that under Articles 12 and 13, the ICC may have power over an individual from a
country that has not signed the ICC. For example, if an Iraqi citizen is accused of committing a
war crime in England, it is possible for him to be tried at the ICC because England has signed the
Rome Statute. Do you agree that the ICC should have this power? Or do you disagree? Why?

4.5 Alternative to Prosecution

So far in this section we have studied the different ways that individuals can be prosecuted for
committing international crimes. It is natural that societies want to punish those who have
committed mass atrocities. However, a court proceeding is not the only way to respond to these
crimes. When faced with a legacy of international crimes, some societies have chosen not to
prosecute former leaders. In this section, we will explore two main alternatives to prosecutions:
1) truth commissions and 2) reparations.

4.5.1 Truth Commissions

A truth commission is an organization or a group tasked with the goal of discovering and
exposing government wrongdoing from the past. Truth commissions are most common when a
new political leader assumes power after a period of intense conflict in a society or country.

A comparison to prosecutions and an example will help us better understand truth commissions.
Truth commissions, like prosecutions, focus on exposing government wrongdoing. However,
they accomplish this goal in very different ways. A criminal prosecution is mainly focused on
punishing the individual who is responsible for the crimes in question. A truth commission,
however, is focused on providing support to the victims and helping a society move past these

84
Leila Hanafi and Brigitte Suhr. Coalition for the International Criminal Court, "Re: Prospects of Ratification of
the Rome Statute of the International Criminal Court." Last modified December 18, 2013. Accessed February 9,
2014. http://www.iccnow.org/documents/URC_Letter_Iraq_(EN).pdf.
85
Laura Barnett, The International Criminal Court History and Role, 26,
http://www.parl.gc.ca/content/lop/researchpublications/prb0211-e.pdf.
86
Ibid., 22.
87
Ibid., 25-26.

24
crimes. In fact, one main criticism of truth commissions is that they allow past leaders to go
unpunished for their crimes.

The most famous example of a truth commission occurred in South Africa, starting in 1996.
South Africa had just emerged from a brutal system known as apartheid. Under apartheid, the
South African government promoted a system of racial discrimination and separation in all
aspects of life. People who were black, Indian, or “coloured” had fewer legal and economic
rights, could only live in certain segregated areas, and were provided with state services inferior
to those received by white people. During apartheid, the oppressive state also routinely used
violence against non-white South Africans. In the aftermath of this terrible system, a new South
African leadership had the choice of how to deal with the abuses of the past.88

Instead of focusing on prosecutions, the South African government formed a Truth and
Reconciliation Commission. This commission was designed to recognize the abuses that had
taken place under the old regime, and also to help the country heal and reunite. There were many
interesting features of the commission. The commission organized “public hearings” all over
South Africa. These hearings allowed victims to share their experiences and help regain their
dignity after decades of being treated poorly.89 The commission also extensively investigated the
human rights abuses that had taken place from 1960 to 1994 and created a record of these
abuses. 90 The commission also had the power to grant amnesty to individuals who had
previously committed abuses. If an individual was granted amnesty, he or she could not be
legally prosecuted at a later date. Thus, as its name indicates, the commission was focused on
reconciling the former oppressors and the formerly oppressed, and it was focused on rebuilding a
divided society.91 The South African model has largely been recognized as a success. In fact, at
least forty truth commissions have been held around the world92, though some have been more
successful than others in terms of redressing past wrongs.

4.5.2 Reparations
Reparations are an additional way to recognize the suffering of victims and survivors of mass
atrocities. In the context of international criminal law, reparations are state acts designed to
remedy past abuse of victims. Reparations can take many forms. In some cases, a new
government will financially compensate victims for abuses they suffered during a prior
government’s leadership. In other cases, a government may provide “social services such as
healthcare or education” to victims of human rights abuses.93 Other times, a government may
88
Audrey R. Chapman, and Hugo van der Mere, Truth and Reconciliation in South Africa: Did the TRC deliver? ,
(Philadelphia: University of Pennsylvania Press, 2008), 6.
89
Ibid., 8.
90
Ibid., 95.
91
Ibid., 293.
92
International Center for Transitional Justice, "Truth and Memory." Accessed February 9, 2014. http://ictj.org/our-
work/transitional-justice-issues/truth-and-memory.
93
International Center for Transitional Justice, "Reparations." Accessed February 9, 2014. https://ictj.org/our-
work/transitional-justice-issues/reparations.

25
issue a formal apology to a group of victims or survivors of past crimes. It should be noted that,
in many cases, victims and survivors fight for years to be recognized and to be granted
reparations.

It is also important to realize that reparations may be part of an existing trial proceeding. For
example, the International Criminal Court recognized that victims of a conflict in the Democratic
Republic of the Congo were entitled to reparations.94 The court ruled that the victims had a right
to reparations. However, reparations can also be completely separate from any trial. For
example, reparations may be given to victims as part of a truth commission process.

In reality, reparations remain largely aspirational in the international context. While the ICC,
tribunals, and truth commissions often support the idea of reparations, it has proven difficult to
actually provide them to victims. There are a number of difficulties in providing reparations,
including inadequate funding, difficulty with administering a reparations program, and a lack of
political will to ensure that victims are fully compensated.

5. THE IRAQI HIGH CRIMINAL COURT: A DOMESTIC COURT

DESIGNED TO PROSECUTE INTERNATIONAL CRIMES
We now have explored the basic ways that a country can address allegations of international
crimes. Some countries choose to prosecute these crimes in domestic courts. Other times,
countries may go before an international tribunal or seek the help of the International Criminal
Court. In other cases, a country may avoid criminal prosecutions and focus on providing justice
for the victims of a tragedy. As we have analyzed, there are positives and negatives of each of
these approaches.

In this section, we will discuss how Iraq chose to confront the brutal crimes in its past. In
particular, we will explore the country’s prosecution of Saddam Hussein and members of the
former Ba’ath Party regime before the Iraqi High Criminal Court (also referred to as the “Iraqi
High Tribunal,” “Iraqi Tribunal,” and the “Tribunal”). In doing so, we will reflect on how Iraq’s
recent experience has contributed to the development of international criminal law.

5.1 The Origins of the Tribunal

After the 2003 U.S.-led invasion into Iraq, and the subsequent fall of Saddam Hussein’s regime,
a transitional government was put in place to rule the country. This temporary governing body

94
AFP, "ICC orders reparations for DR Congo warlord victims." Last modified August 07, 2012. Accessed February
9, 2014.
http://www.google.com/hostednews/afp/article/ALeqM5g6kXaT4O_gevs5CAmhhm1FYgW6HQ?docId=CNG.4ae5
b8c34a9eeaaf73df397a93eba09a.e61.

26
was called the Coalitional Provisional Authority (“CPA”). In one of its first acts in July 2003, the
CPA created the “Iraqi Governing Council,” which was to act as the country’s legislature.95

On December 10, 2003, the CPA issued Order Number 48, which was titled “Delegation of
Authority Regarding an Iraqi Special Tribunal.” 96 This order directed the Iraqi Governing
Council to create a special court to prosecute crimes that had occurred during the previous
regime. Specifically, Order Number 48 stated that the “Governing Council is hereby authorized
to establish an Iraqi Special Tribunal (the “Tribunal”) to try Iraqi nationals or residents of Iraq
accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi
laws….”97 The order later outlined that the Tribunal shall be an “independent entity” and that it
could focus on crimes committed between “July 17, 1968 and up until and including May 1,
2003, in the territory of the Republic of Iraq, or elsewhere.”98

Just three days after Order Number 48 was issued, Saddam Hussein was captured on December
13, 2003.99 After the formal transfer of sovereignty from the United States back to the Iraqi
authorities, the Iraqi Transitional National Assembly adopted Iraqi Law No. 10 (“Tribunal
Statute” or “Statute”). This Statute officially established the “Iraqi Higher Criminal Court” and
confirmed the details that were laid out in Order Number 48.100 This Tribunal ultimately tried
Saddam Hussein and other former leaders of the Ba’ath party beginning in October 2005.

5.2 The Features of the Tribunal

In addition to establishing the court, the Tribunal Statute detailed the basic procedures, structure,
and composition of the Tribunal. In this section, we will look at the most important and
interesting features of the Tribunal Statute.

Note how the Tribunal is a domestic court that is designed to prosecute international crimes. In
fact, some have referred to the Tribunal as an “internationalized domestic court.”101 We will
examine why the Iraqi government chose to create a domestic court, and then we will examine
how the Tribunal also incorporates features of the international criminal law system.

95
"Iraqi Governing Council ." Accessed February 10,
2014.http://www.globalsecurity.org/military/world/iraq/igc.htm.
96
Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High
Tribunal, (Durham: Carolina Academic Press, 2009 ), 57.
97
Delegation of Authority Regarding an Iraqi Special Tribunal, Section I, Coalition Provisional Order No. 48 (10
December 2003), http://www.loc.gov/law/help/hussein/docs/CoalitionProvisionalAuthorityOrder48en.pdf.
98
Ibid., Art. 10.
99
E. van Heughten , and P.A. van Laar , The Iraqi Special Tribunal for Crimes Against Humanity , (Nimejen: Wolf
Legal Publishers , 2011), 29.
100
Iraqi High Criminal Court Law, Article 1, Law No. 10 of 2005 (18 October 2005) [hereinafter Tribunal Statute].
101
Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High
Tribunal, (Durham: Carolina Academic Press, 2009 ), 58.

27
 5.2.1 The Tribunal’s Domestic Elements
The first noteworthy feature of the Tribunal is that it is a domestic court created by Iraqi
authorities. As noted earlier, there has been a trend towards prosecuting international crimes
before international bodies such as hybrid tribunals or the ICC. The first question we must ask
then is: why did the Iraqi government choose to create a domestic court to prosecute (mostly)
international crimes?

There are a few reasons for this decision. Most importantly, the claims against Saddam Hussein
and other leaders could not have been brought before the ICC. Recall that Iraq is not a member
of the ICC. Plus, remember that the Rome Statute states that the ICC can only hear claims about
issues taking place after 2002.102 Since the Iraqi government was interested in investigating and
prosecuting crimes that began in 1968, the ICC was not a viable option.

The Iraqi government also decided to forego the international tribunal or hybrid model that was
discussed above. Formal international involvement was not a possibility in this case largely
because of a dispute over the death penalty. Iraqi domestic criminal law allows for the death
penalty as a punishment, yet European countries refused to be part of an international criminal
tribunal where a conviction could result in the death penalty. The Iraqi leadership was unwilling
to proceed without the death penalty as an option.103

As a result, the Iraqi leadership chose the domestic court model. As discussed above, there are
benefits to prosecuting international crimes in domestic courts. First, the authority for a domestic
court comes directly from the Iraqi government. In this case, the Iraqi Governing Council formed
the court. This has the benefit of allowing the Iraqi government to retain control over the
proceedings (and to minimize the influence of international actors). In fact, “polls taken in Iraq
indicated the Iraqi people themselves overwhelmingly expressed the view that Saddam Hussein
and other former leaders of the Regime should be tried in Iraq by Iraqi judges.”104 Instead of
relying on foreigners, all of the Tribunal’s investigators and judges were native Iraqis.105

The Tribunal’s domestic court model also provided other benefits. Most importantly, its
domestic nature allowed the Iraqi government to give the Tribunal power to hear cases about
serious violations of Iraqi domestic law in addition to the violations of international law. Article
14 of the Tribunal Statute lists the 3 domestic crimes that the Tribunal has the power to
prosecute. Specifically, it states that the Tribunal has power to hear allegations related to 1)
manipulating the judiciary, 2) squandering national resources, and 3) the use of armed force

102
Ibid., 58.
103
Zakia Afrin, Transitional Authority in Iraq: Legitimacy, Governance and Potential Contribution to Progressive
Development of International Law, (Lake Mary: Vandeplas, 2009), 80.
104
Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High
Tribunal, (Durham: Carolina Academic Press, 2009 ), 58.
105
Ibid., 59.

28
against an Arab country.106 These are 3 crimes that are specifically outlawed under Iraqi law.
The inclusion of Article 14 in the Tribunal Statute shows that the Iraqi government felt seriously
about the violations of domestic law that occurred under Saddam Hussein’s presidency. The
prosecution of these crimes signaled that that violations of these important domestic laws by
future leaders would not be tolerated.

Finally, the domestic court model allowed the Iraqi government to retain control over how it
chose to issue punishments. Article 24 of the Tribunal Statute states, “The penalties that shall be
imposed by the Tribunal shall be those prescribed by Iraqi Law….”107 This is particularly
important because Iraqi domestic law allows individuals to be punished by death for certain
crimes. Saddam Hussein had been tried before an international or hybrid tribunal, then the death
penalty would not have a possibility. The Iraqi government wanted to preserve the option of
sentencing the Tribunal’s defendants to death.

5.2.2 The Tribunal’s International Elements

The Tribunal Statute created a domestic Iraqi court that was concerned with the crimes of Iraqi
nationals and residents. Yet at the same time, the Tribunal had the power to hear cases about
international crimes. In other words, even though the Tribunal is a domestic court, it was focused
on applying international criminal law.

The Tribunal Statute incorporated elements of international criminal law. First, the Statute makes
clear that the Tribunal has power to hear about allegations of genocide (Article 11), crimes
against humanity (Article 12), and war crimes (Article 13). 108 As you know, these are
international crimes. The Statute then states that when interpreting Articles 11-13, the Tribunal
“may resort to the relevant decisions of international criminal courts.”109 It is clear from this
statement that the Tribunal was to consult international criminal law standards and precedents in
determining whether or not members of the Ba’ath party had committed the alleged crimes.
Thus, the Iraqi government empowered a domestic court to consider international crimes.

5.3 The Tribunal’s Prosecution of Saddam Hussein and Other Former Leaders
With this background knowledge, let us now examine the specific cases that came before the
Tribunal. The Tribunal completed two major investigations: the Dujail trial and the Al-Anfal
campaign. We will analyze the results from these two historically significant trials.

106
Michael A. Newton, The Iraqi High Criminal Court: controversy and contributions, International Review of the
Red Cross, June 2006, 408, http://www.icrc.org/eng/assets/files/other/irrc_862_newton.pdf.
107
Tribunal Statute, Art. 24.
108
Tribunal Statute, Arts. 11-13.
109
Tribunal Statute, Art. 17.

29
 5.3.1 The Al-Dujail Trial
On October 19, 2005, the Al-Dujail trial began at the Tribunal courthouse in Baghdad. The start
of the trial was an important moment, as it was first case to be heard by the Tribunal. In addition
to Saddam Hussein, there were 7 other defendants. The Tribunal charged the defendants with
killing 148 individuals in what is now referred to as the Dujail Massacre. After a failed
assassination attempt on Saddam Hussein in the town of Dujail in 1982, Saddam Hussein and his
co-defendants detained hundreds of individuals from Dujail. After being held for two years, 148
men and boys were referred to trial. They were pressured to confess to the crime of treason, after
which the court sentenced them to the death penalty.110

The Tribunal charged Saddam Hussein and his seven co-defendants with crimes against
humanity for their roles in the execution of those 148 individuals. As you can imagine, the trial
of Iraq’s former leader generated significant controversy. Unfortunately, the trial was
undermined by threats and violence, including the deaths of three of the lawyers who represented
Saddam Hussein. After multiple delays and controversies, Saddam Hussein was ultimately found
guilty of committing crimes against humanity. The verdict was delivered on November 5, 2006,
and he was sentenced to death for the killings of the 148 individuals as well as for forcible
deportation and torture.111

For Further Consideration

After the Dujail trial concluded, there were strong reactions to the guilty verdict for Saddam
Hussein. Prime Minister Nouri al-Maliki stated, “The justice handed out to him is a response to
the call from thousands of sons and sisters of those sentenced and executed by Saddam….”112
Within Iraq, many supported the decision and some Saddam supporters protested the decision.113

5.3.2 The Al-Anfal Trial

In August 2006, a separate trial for Saddam Hussein and 6 other defendants began before the
Tribunal. The seven defendants were charged with three international crimes: genocide, war
crimes, and crimes against humanity. The allegations in this case stemmed from the Anfal
campaign, which lasted roughly from February to September 1988. During this time, the Iraqi
government, led by Saddam Hussein and Ali Hassan al-Majid, conducted targeted attacks against
the Kurdish population.

The attacks, which were conducted through ground offensives, aerial bombings, forced
deportations, and chemical weapons, targeted the civilian population. Tens of thousands of
110
Michael P. Scharf, and Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High
Tribunal, (Durham: Carolina Academic Press, 2009), 57
111
Ibid., 76-82.
112
BBC, "Saddam sentence: Reaction in quotes." Last modified November 05, 2006. Accessed February 10, 2014.
http://news.bbc.co.uk/2/hi/middle_east/6118298.stm.
113
Al Jazeera, "Saddam Hussein senteced to hang ." Last modified November 05, 2006. Accessed February 10,
2014. http://www.aljazeera.com/archive/2006/11/200849155416141647.html.

30
Kurds were killed, and approximately 4,000 villages in Iraqi Kurdistan were destroyed.114 A year
before the Tribunal heard the case, a court in the Netherlands had punished a Dutch trader for
selling chemical weapons to the Hussein regime. In that decision, the Dutch court ruled that it
was “legally and convincingly proven that the Kurdish population meets the requirement under
the Genocide Conventions as an ethnic group. The court has no other conclusion than these
attacks were committed with the intent to destroy the Kurdish population of Iraq.”115

Saddam Hussein was executed as punishment from the Dujail case during the Al-Anfal case on
December 30, 2006. When the Al-Anfal trial resumed in January 2007, the Tribunal dropped
Saddam Hussein as a defendant and proceeded against the remaining 6 defendants. On June 23,
2007, three of the defendants (including Ali Hassan al-Majid) were sentenced to death, and two
other defendants were sentenced to life in prison for committing genocide during the Anfal
campaign.116

The Tribunal’s decision in the Al-Anfal case provided a number of important benefits. At a basic
level, the decision recognized the terrible crimes that occurred and acknowledged the victims,
families, and survivors who had suffered because of the attacks. The decision also served the
value of truth-telling. This means that a full accounting of the crimes took place because of the
Tribunal. The evidence-gathering process of the Tribunal produced a written account of the
Ba’ath Army’s intentional targeting and destruction of the Kurdish people. This record can be
accessed by future generations who seek to know the history of their people and their country.
The two major verdicts by the Tribunal set an important precedent for those who wish to move
towards a more peaceful Iraq. Even beyond Iraq, the Tribunal has value. Its verdict can serve as
an example for those, around the world, who seek to punish other political and military leaders
who have committed international crimes.

5.4 Reflections on and Criticisms of the Tribunal

The Iraqi Tribunal has potential to be an important precedent for international criminal law,
especially because this area of law is developing so quickly. But in addition to the benefits of the
Tribunal, it is also important to reflect on its shortcomings. Only by reviewing the criticisms of
the Tribunal can future prosecutions learn to avoid similar mistakes. This section will consider
the major critiques of the Iraqi Tribunal.

Since it was first established, the Iraqi Tribunal has generated a significant amount of
controversy. Many of the criticisms have centered on the Tribunal’s legitimacy. In other words,

114
Abdel Hamid Zebari. Al-Monitor: The Pulse of the Middle East - Iraq Pulse, "Iraqi Kurds Pressure Baghdad to
Join ICC ." Last modified February 27, 2013. Accessed February 9, 2014. http://www.al-
monitor.com/pulse/originals/2013/02/iraq-kurd-icc.html.
115
Kamaran Kurdi. Kurdish Media, "International community needs to rethink and address Kurdish question." Last
modified December 28 , 2005. Accessed February 9, 2014. http://kurdmedia.com/article.aspx?id=10979.
116
Al Jazeera, "'Chemical Ali' Sentenced to Hang." Accessed February 9, 2014.
http://www.aljazeera.com/news/middleeast/2009/03/200932134915907626.html.

31
critics of the Tribunal have doubted whether the Tribunal could serve as a neutral and fair
judicial body.

One of the main criticisms of the Tribunal is that there was too much involvement by the United
States. At a general level, these critics argue that the United States’ involvement lessened Iraq’s
ability to control its own trials. After all, the trials were based in Iraq and centered on crimes that
were committed by Iraqi leaders against their own people. Specifically, these critics note that the
United States contributed a large financial amount to the operation of the Tribunal. The Tribunal
also relied on the United States for administrative support. More importantly, these critics
believe that the United States interfered with some of the Tribunal’s major decisions.117 For
example, the Tribunal was only granted the power to hear allegations about Iraqi nationals and
residents. These critics would prefer that the Tribunal also had the power to hear cases about
non-Iraqi individuals, such as United States troops, who are accused of war crimes in Iraq.
Additionally, there have also been allegations that the United States Embassy attempted to delay
the execution of Sunni military figures after the decision in the Dujail trial. As reported, the
United States government feared the executions would worsen Sunni-Shiite relations.118

Similarly, some critics questioned the independence of the Tribunal because they doubt that
former opponents of the Ba’ath party would be able to give the former Ba’ath leaders a fair trial.
Others have objected to the involvement by the Iraqi Prime Minister. There were reports that the
Iraqi government interfered with the Tribunal by replacing some of the judges.119 It is likely that
these critics would have preferred an independent international court to conduct the trials.

There were a few other criticisms that centered on the execution of the Tribunal. First, some
observers “criticized the Dujail case on the grounds that the crimes against civilians were not of a
scale comparable with other violations under Ba’athist rule.” 120 Other observers wanted
international legal experts to be given a larger role during the prosecution. And, as noted earlier,
some international lawyers opposed the decision to allow the death sentence to be a punishment.
Many of these criticisms are subject to debate. It is unquestioned, however, that the Tribunal was
negatively affected by all of its surrounding violence.

Discussion Questions

117
Michael A. Newton, The Iraqi High Criminal Court: controversy and contributions, International Review of the
Red Cross, June 2006, 404, http://www.icrc.org/eng/assets/files/other/irrc_862_newton.pdf.
118
CNN, "Top Iraqi Source: U.S. tried to delay execution." Last modified January 01, 2007 . Accessed February 9,
2014. http://www.cnn.com/2007/WORLD/meast/01/01/saddam.execution/.
119
Amit R. Paley. The Washington Post, "Government Ousts Judge in Hussein Trial." Last modified September 20,
2006. Accessed February 9, 2014. http://www.washingtonpost.com/wp-
dyn/content/article/2006/09/19/AR2006091901204.html.
120
Michael A. Newton, The Iraqi High Criminal Court: controversy and contributions, International Review of the
Red Cross, June 2006, 424, http://www.icrc.org/eng/assets/files/other/irrc_862_newton.pdf.

32
1. After reading these criticisms, what changes would you have made to the structure and/or
operation of the Iraqi Tribunal?
2. Do you think that it would have been better to prosecute the crimes before an international
tribunal?

6. CONCLUSION
As Iraq’s experience demonstrates, the field of international criminal law is one of the fastest
changing areas in the law. As you will recall from Part II of this chapter, international criminal
law has developed rapidly in the period since the Second World War. After the Nazis’ systematic
killing of Europe’s Jewish population, the international community confronted the challenge of
developing an appropriate response. The international community’s decision to prosecute Nazi
leaders remains the central moment in the development of modern international criminal law.

Over the last 70 years, the international criminal law system has developed significantly.
International criminal law has evolved through experience, through treaties, and through judicial
decisions. The international criminal law system has changed over time, in part, in an effort to
achieve different goals, including the restoration of the rule of law, accountability, reconciliation,
and justice for victims.

As we explored in Part III of this chapter, the international community has agreed upon a set of
substantive international crimes that are distinct from domestic crimes. These crimes – which
include the crime of aggression, war crimes, crimes against humanity, and genocide – are often
committed in the context of an international conflict and are generally more serious than
domestic crimes. There are various ways to respond to these international crimes, as we explored
in Part IV. Some countries have chosen to prosecute international crimes in their own courts
while others have decided to include international experts or work with international tribunals.
More recently, the relatively new International Criminal Court has heard cases of alleged
international crimes. Prosecutions, however, are not the only way to address international crimes:
states have also established truth commissions and provided reparations in efforts to achieve
some degree of justice for victims.

Of course, there is no single “right” way to address international crimes. There are positives and
negatives of each approach. As we addressed in Part V, the Iraqi High Criminal Court handled
the prosecutions of Saddam Hussein and other former of Ba’ath party leaders for violations of
international criminal law. While these prosecutions were ultimately successful, we also
reviewed the major criticisms of the Iraqi Tribunal. As Iraq’s recent experience demonstrates, the
international criminal law system is complex and constantly changing.

33
Over the last 20 years in particular, the rate of development of international criminal law has
been incredible. Countries from across the world have formed an international community that is
dedicated to punishing those who have caused millions to suffer. Despite the differences between
countries like Rwanda and Iraq, both nations have recognized the power that international
criminal law has to help move their countries beyond the crimes of the past. In this sense,
international criminal law seems to have achieved a great amount of success.

However, as this chapter has discussed, the international criminal law system is far from perfect.
Even though the international community has adopted the idea of international criminal law,
there are major disputes on how it should be implemented. As a result, there are many variations
of international criminal law. And these variations matter. The prosecution of international
crimes before a domestic court, like in Iraq, is far different than the prosecution of these crimes
before the ICC. Given these very different approaches, it is interesting to wonder how
international criminal law will change in the next 20 years. Perhaps all international crimes will
be tried before a well-established ICC. Or maybe countries will continue to experiment with
international criminal law in order to meet the specific needs of their societies.

Before we continue our study of international law, take a moment to reflect on what we learned
in this chapter. In many ways, international criminal law is a unique area of international law.
After all, it mostly focuses on the punishment of individuals rather than the responsibilities of
states. Yet, international criminal law does overlap with many other fields of international law.
As we continue to examine this topic, see what connections you can make between this chapter
and others.

Suggested Answers to Discussion Questions and Short Exercises

34
 Suggested Answer (to question on pg. 5)
There are many possible answers to this question. Notably, the prosecution of the Nazis at the
end of the Second World War led to the development of international criminal law. Further, the
international community has strengthened an incredible amount over the last 60 years. Countries
have frequently interacted with one another through international organizations like the United
Nations. Similarly, an answer might note the phenomenon of globalization. Specifically,
countries have increasingly shared ideas with one another. These trends suggest that the
development of international criminal law is correlated with the rise of international law more
generally. Further, because of technological developments like the Internet, people around the
world have gained the power to learn about human rights abuses around the world. A natural
reaction to learning about these crimes is to demand some sort of accountability.

Suggested Answer (to question on pg. 7)

Sample Answer: I would prioritize the rule of law over all of the other goals. While
accountability and victim justice are both important, they are primarily focused on events of the
past. The rule of law is most important because it is critical to the success of a society moving
forward. Without a strong rule of law in a society, that society is at risk of enduring another
conflict.
(*There is no correct answer to this question; rather, it is designed to foster critical thinking
skills.)

Suggested Answer (to question on pg. 11)

Yes, Ivan is guilty of committing a war crime. Ivan was allowed to capture the soldier from
Turkey, as that is a common occurrence in war. However, Ivan cannot torture the Turkish
soldier. Torture is always a violation of international law. Therefore, Ivan committed a war crime
when he tortured the Turkish soldier.

Suggested Answer (to question on pg. 14)

Possible Arguments for Including Political Parties in Definition
* Failure to include political groups will allow leaders to target those groups without facing
serious consequences. These leaders will not be punished for committing serious crimes.
* The repression and violent targeting of political groups is a common occurrence. It is a serious
problem that needs to be addressed.

35
* Currently, it can be difficult to determine whether the targeting of a group is genocide. A
broader definition of genocide will help to reduce this confusion.
Possible Arguments for Excluding Political Parties in Definition
* It may be difficult to determine whether or not a group of people are members of the same
political party. Political party membership changes over time. It is easier to tell if a group of
people belong to the same national, ethnic, racial, or religious group.
* The international community should not become involved in political disputes within
countries. This would set a bad precedent for allowing the international community to interfere
with the internal affairs of particular countries.
* Many political groups are already divided along national, ethnic, racial, or religious lines.
Therefore, there is no need to expand the definition of genocide to include political groups.

Suggested Answer (to question on pg. 21)

Likely no. First, the alleged crime was committed by an individual from the United States. Since
the United States has not signed the Rome Statute, the ICC would not automatically have power
over this person. Second, the crime allegedly took place in Iraq. Since Iraq has not signed the
Rome Statute, the ICC would not have power to hear this case.

Suggested Answer (to question on pg. 23)

There is no “right” answer to this question. The question is designed to have students think about
the possible tradeoff between accountability for international crimes and the power of the ICC.
Possible answers will be along the lines of: yes, I agree with this power because it is important
for the ICC to be able to prosecute war crimes, regardless of who they are committed by. The
prosecution of international crimes should not simply depend on whether or not a country has
signed the Rome Statute.
OR: No, I disagree with the ICC having this power. Treaties should only bind countries (and
people) when they choose to sign them. Otherwise, the ICC and the international community will
have too much power.

Suggested Answer (to question on pg. 32)

There is truly no right answer to this question, but I imagine it could provoke a very interesting
discussion. I am guessing that many students might suggest that an international criminal tribunal
would have been better because it would have lessened conflict between various groups. At the

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same time, I imagine that the Tribunal could also be a source of pride. Some students may view
the guilty verdicts as proof of the Tribunal’s success.

Glossary (to be integrated with other chapters)

Accountability: the principle that people are responsible for the actions they take

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Ad hoc tribunal: a tribunal that is created for the specific purpose of prosecuting international
crimes in response to a particular conflict

Complementarity: the concept that an international court will only hear cases about crimes that
domestic courts have not investigated or prosecuted

Crime of aggression: an international crime that punishes military or political leaders who
aggressively start wars in violations of international law

Crimes against humanity: an international crime that prohibits the widespread and systematic
attacks against civilian populations, including acts such as murder, rape, and torture

Genocide: an international crime that prohibits the deliberately killing or harming of a group of
people who share the same nationality, religion, race, or ethnicity.

Human Rights: the freedoms that all humans have by virtue of being human

Hybrid/Mixed Tribunal: a type of tribunal or court that mixes elements of a domestic court
system with elements of the international criminal justice system

International Criminal Court: a permanent international court that is designed to hear cases
involving the four major international crimes

International criminal law: the set of rules and structures that address crimes which are
recognized as particularly heinous, massive in scope, or international in nature

International crimes: violations of international law that are universally recognized to be

particularly serious

Reparations: state acts that are designed to remedy past abuse of victims

Rule of law: the principle that laws should be respected in a society, and that they should apply
equally to all people

Transitional justice: the options that a country has when it attempts to address and move past
major violations from a past conflict

Truth commission: an organization or a group that is tasked with the goal of discovering and
exposing government wrongdoing from the past

War crimes: an international crime that punishes grave breaches of international law that take
place during times of war

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