The Iraqi Special Tribunal (IST) is a hybrid tribunal created on 10 June 2003, in Bagdad by the Coalition Provisional Authority, namely, the government established after the invasion of Iraq in 2003.
The mission of the Tribunal is to adjudicate on the crimes of genocide, crimes against humanity as well as war crimes, committed between 17 July 1968 and 1 May 2003, period that covered the political regime of the Ba’ath Party. It is specifically targeted to crimes committed by Iraqis during the aforementioned period, especially, 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 started on 20 March 2003 with the operation “Iraq Freedom”. This operation was led by the United States, the United Kingdom, and the International Coalition, to overthrow Saddam Hussein´s Ba’ath Party. Originally founded in Damascus in 1947, the Ba’ath Party reached the power in Iraq in 1963, but, due to the coup on 17 July 1968 it held definitively the power until 2003. When Saddam Hussein took power 16 July 1979, the party completely changed, becoming militarized and organizing it in different cells around the country, showing strong resistance to the challenges they faced.
The war in Iraq was led by the United States. The reasons officially announced by the government of G.W. Bush were the fight against terrorism, the elimination of the presumptive mass destruction weapons held by Iraq and the arrest of Saddam Hussein, to point only the main ones. After a quick defeat of the Iraqi Army, at the end of April 2003, and the capture of Saddam Hussein, the coalition and Iraq attempted to install a government of democratic transition, representative of all the Iraqi communities and, at the same time, proceed to trial the members of the Ba’ath Party, who had been recently captured.
In close collaboration with the United States Justice Department, to which Paul Brenner, second civil administrator of Iraq, reports, the statute of the Special Tribunal was established by decree on 10 December 2003. The United States have provided more than 100 million dollars to ensure the “building of the hearings, perform the exhumations, to study the seized documents, the production of evidence and the training of the IST members”.
The statute of this Tribunal combines the two existing models of proceedings and is strongly inspired by the American accusatory system, as well as in the Egyptian law, which is essentially inquisitorial. In the case of insufficiency of the statute, it envisages the recurrence to the Penal Proceeding Code of Iraq from 1971.
In regard to criminal definitions, the Tribunal statute introduced, along with the Iraqi criminal law, a number of criminal definitions extracted from the statutes of other international criminal courts, with the aim of charging Saddam Hussein, as well as his aides, with the crimes of genocide, crimes against humanity and war crimes. Besides, when these crimes do not find correspondence in the Iraqi criminal law, the statute authorizes the judges to fix the amount of the punishment, regarding the entity of the crime, the individual characteristics of the accused and the international case law.
The Iraq Special Tribunal has in structure, 20 prosecutors hired for three years, three chambers, each one formed with five permanent judges that last five years in their position, an Appeal Chamber with nine judges, as well as 20 investigating judges, designated for three years. The Tribunal is composed exclusively of Iraqi justices, some of whom have claimed, since the beginning, being under the pressure of the Provisional Government. Some other justices have been victims of threats, kidnapping, and even killings.
Although this instance has been criticized since it has come into force, accused of, allegedly, being an instance to provide justice for the winners, the Iraqi Special Tribunal procured the means to accomplish its central goal as soon as possible, namely, to judge the old head of State, Saddam Hussein, as well as the main representatives of the Ba’ath regime. Beside genocide, crimes against humanity and war crimes, the Tribunal is competent to manage the judiciary, try the crime of squandering of national resources and the use of the Iraq Army against an Arabic country: charges for all those crimes were presented in the first trial.
The first proceeding that took place in an Iraqi court was the awaited trial of Saddam Hussein, judged along with seven of his lieutenants, on 19 October 2003. The circumstances in which the proceedings started raised doubts regarding its impartiality and for that reason, many Human Rights organizations, among them Human Rights Watch, denounced either the technical limitations as well as financials ones, aimed to hinder the defendant’s lawyers work, in comparison with the support given to the Prosecutors.
Another aspect of strong controversy was the re-establishment of the dead penalty on 30 June 2004, which had being abolished in 2003 by Paul Bremer. Even there is an abolitionist position acquired in International Law, many dead sentences were early adopted and the paroxysm is no other than the hung of Saddam Hussein in December 2006, deliberately made public. After the hung, the Tribunal continued and still continues, prosecuting the old members of the Ba’ath government.
Up to date, the Iraqi Special Tribunal is under development, always in a context of political crisis and recurring attacks.