The Iraqi special tribunal is a hybrid tribunal created on the 10th December 2003 in Bagdad by the coalition provisional authorities which were government established after the invasion of Iraq in 2003. The mission of this tribunal is to judge acts of genocide and crimes against humanity as well as war crimes committed between 17 July 1968 and the 1st May 2003, the period covering the political regime of the Baas party. It is therefore aimed specifically at crimes committed by Iraqis in the aforementioned period notably those committed during the war against Iran (1980 – 1988) and the invasion of Kuwait (1990-1991).
The Iraqi special tribunal was created in the context of the Iraq war (also known as the Gulf war) that began on the 20th March 2003 by operation “Iraqi Freedom.” The operation involved the invasion of Iraq by the coalition. It was conducted by the United States, the United Kingdom and the international coalition in order to overthrow the Baas party of Saddam Hussain. The Baas party originating in Damascus in 1947 came to power in Iraq in 1963 but it was only due to a coup of 17th July 1968 that it definitively seized power until 2003. When Saddam Hussein came to power on the 16th July 1979 the party changed significantly and militarised itself. By organising itself into various cells throughout the country the party became strongly resistant in the face of hardship. The United States have been the leaders of the war in Iraq and many reasons for the war have been officially cited by the government of G.W Bush; the fight against terrorism, the elimination of weapons of mass destruction that Iraq was supposed to hold; the arrest of Saddam Hussein, to mention only the main ones. After a rapid defeat of the Iraqi army at the end of April 2003 and the capture of Saddam Hussein, the coalition and Iraq tried to establish a transitional democratic government representing all the Iraqi communities. The coalition also aimed to try members of the Baas party that had been captured.
In close collaboration with the American department of justice to which he reports directly, Paul Bremer, (Iraqi second civil administrator) established by decree the statute of the Special Iraqi tribunal on the 10th December 2003. The United States have awarded more than $100 million to ensure the “construction of the courtroom, conduct exhumations, study the documents seized, the preparation of evidence and the training of the tribunal’s members”.
The statute of the tribunal is a mix of two existing forms of procedure, inspired strongly by American adversarial law as well as Egyptian law which is essentially inquisitorial. If the statute is deemed to be insufficient it explicitly states that the Iraqi penal code of 1971 is to be used. The statute of the tribunal introduced alongside the Iraqi penal legislation a number of crimes taken from statutes of other international criminal courts in order to incriminate the former dictator Saddam Hussein and other members of the regime, namely genocide, crimes against humanity and war crimes. Furthermore, each time that one of these crimes does not have a corresponding match in the Iraqi penal order, the statute authorises the tribunal judges themselves to determine the sentence taking into account the gravity of the crime, the individual characteristics of the accused and international jurisprudence. With regards to its composition, the Iraqi special tribunal consists of 20 attorneys contracted for 3 years, 3 chambers composed of 9 permanent judges appointed for 5 years, a court of appeal composing of 9 judges and 20 judges appointed for 3 years. It is formed solely of Iraqi judges of which a certain number have denounced from the beginning the pressure exerted by the provisional government. Some judges have been the victims of threats, of removal and even of assassination.
Whilst being discredited from the beginning as rendering winners justice, the Iraqi special tribunal had the means to quickly realise its central objective, that of judging the ex head of state Saddam Hussein as well as the main representatives of the Baas regime. In addition to genocide, crimes against humanity and war crimes, the tribunal also had jurisdiction to try cases relating to the manipulation of judges, squandering national resources and the use of the Iraqi army against another Arab state. All of these charges were on the indictment for the first trial.
The first trial which took place in front of the tribunal was the trial of Saddam Hussein judged alongside seven of his lieutenants on the 19th October 2003. There were doubts concerning the fairness of the trial in regard to the conditions under which the trial began. Several Human Rights organisations one being Human Rights Watch have condemned technical and financial limits placed on the defence which risked hindering their work in comparison with the support received by the prosecution. Another issue which was the subject of controversy was the re-establishment of the death penalty on the 30th June 2004, which was abolished in 2003 by Paul Bremer. Despite the position today in international law being clearly abolitionist, several death sentences were passed early on culminating with the hanging of Saddam Hussein in December 2006 which was voluntarily made public. After said hanging the tribunal has continued and continues today to prosecute the former members of the Baas government.
At present, the Iraqi special tribunal is still evolving in the context of a political crises and repeated attacks. The execution on 25 January 2010 of “Chemical Ali”, Saddam Hussein’s cousin seems to have revived the movements against religious minorities present in Iraq.