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Tommy Franks

31.05.2016 ( Last modified: 10.06.2016 )
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.

facts

Tommy Franks was born on 1 June 1945 in Wynnewood, Oklahoma. At the time of the events he was commander in chief of the American-British coalition forces in Iraq.

The third war against Iraq started with the bombing of Bagdad on 20 March 2003.

Attacks were allegedly directed against civilians. Shootings of unarmed civilians occurred on 15 April 2003, and residential areas were bombed on 6 April 2004.

Furthermore, it was claimed that cluster bombs were deployed. The use of cluster bombs is very contentious as their effect is widespread, thereby increasing the risk of civilian casualties. Moreover, 5-10% of cluster bombs have effects equivalent to those of landmines since they do not explode on impact but can remain lying unexploded in the ground for years.

On 14 April 2003, for instance, civilians were injured when cluster bombs were used. In addition, on 12, 16 and 19 April children were reportedly injured by cluster bombs.

It is alleged that there were repeated attacks on medical personnel and medical infrastructures. On 7 April 2003, two pregnant women died when an ambulance was attacked. On 9 April ambulances on their way to hospitals at Al Kindi and Al-Liqa’a respectively were attacked.

American- British armed forces did nothing to prevent looting which occurred in the early stages of the war. The complaint made reference for example to the cultural centre Al Bail Iraqi the main sections of which were destroyed on 8 April 2003 during an attack. Although American forces mounted the guard in this area, the looting continued without the American soldiers intervening.

The complaint cited Tommy Franks as having ordered the above mentioned acts or alternatively that he had knowledge of them but then failed to prevent or punish their commission.

On 14 May 2003, 17 Iraqi and 2 Jordanian citizens filed a complained against Tommy Franks in Belgium.

 

legal procedure

On 14 May 2003, 17 Iraqi and 2 Jordanian citizens filed a complained against Tommy Franks in Belgium.

The complaint was based upon legislation permitting the investigation of war crimes committed outside of Belgium. This legislation, however, has been modified substantially over the last few years, and today only complaints can be filed where the perpetrator of the crime is of Belgian nationality or where the victim is either Belgian or, (at the time of the commission of the crime), has been living in Belgium for at least three years. Furthermore, the perpetrator, if not Belgian, has to come from a country where war crimes are not being prosecuted or where a fair procedure cannot be guaranteed.

The case against Franks was considered a test case for the modified law.

On 21 May 2003 the Belgian government, however, decided to transfer proceedings to the American judiciary, and to put a stop to proceedings in Belgium.

This government intervention in the proceedings was heavily criticised as it is contrary to the principle of separation of powers.

The complainants appealed against the decision to transfer the proceedings to the American judiciary. On 23 September 2003 the Brussels Court of Appeal dismissed the appeal against the decision of the government.

The case against Tommy Franks is therefore definitively closed in Belgium.

 

context

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.

 

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