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THE STATUTE OF THE IRAQI SPECIAL TRIBUNAL

 

SECTION ONE

 

The Establishment, Organization and Competence of the Tribunal

 

PART ONE

Establishment and Competence of the Tribunal

 

Article 1.

 

a) A Tribunal is hereby established and shall be known as the “Iraqi Special Tribunal for Crimes Against Humanity” (the “Tribunal”).  The jurisdiction and functioning of the Tribunal and its associated bodies as defined in Article 3(b) below shall be governed by the provisions of this Statute.  The Tribunal shall be an independent entity and not associated with any Iraqi government departments.

b) The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 to 14 below, committed since July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the State of Kuwait.  This includes jurisdiction over crimes listed in Articles 12 and 13 committed against the people of Iraq (including its Arabs, Kurds, Turcomans, Assyrians and other ethnic groups, and its Shi’ites and Sunnis) whether or not committed in armed conflict.

c) The Tribunal shall only have jurisdiction over natural persons.

 

Article 2.

 

The Tribunal shall have its seat in the City of Baghdad, or, following a written proposal made by the President of the Tribunal, in any other Governorate in Iraq as determined by the Governing Council or the Successor Government.

 

PART TWO

Organization of the Tribunal

 

Article 3.

a) The Tribunal’s judiciary shall consist of the following:

1.         one or more Trial Chambers;

2.         an Appeals Chamber, which shall have the power to review the decisions of the Trial Chambers referred to above; and

3.         the Tribunal Investigative Judges.

b) The Tribunal will also have a Prosecutions Department.

c). The Tribunal will also have an Administration Department, which shall provide administrative services to the Tribunal’s judiciary and the Prosecutions Department.

 

 

 

PART THREE

The Trial Chambers and the Appeals Chamber

 

Article 4.

 

a) The Trial Chambers shall be composed of permanent independent judges, and independent reserve judges.

b) Each Trial Chamber shall consist of five permanent judges. 

c) (i) The Appeals Chamber shall be composed of nine members.  Once appointed the Appeals Chamber shall select one of its members to fill the position of President of the Appeals Chamber.  No member of any Trial Chamber can simultaneously be a member of the Appeals Chamber or a Tribunal Investigative Judge.

(ii) The President of the Appeals Chamber shall also be the President of the Tribunal and will overview the administrative and financial aspects of the Tribunal.

d) The Governing Council, if it deems necessary, can appoint non-Iraqi judges who have experience in the crimes encompassed in this statute, and who shall be persons of high moral character, impartiality and integrity.

 

PART FOUR

Qualification and Selection of the Judges

 

Article 5.

           

a) The permanent and reserve judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required for appointment to the highest judicial offices.  In the overall composition of the Chambers and Articles of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law and trial procedures. 

b) Iraqi candidates for permanent and reserve judges in the Trial Chambers need not be serving judges, and could be lawyers and jurists (who should also have the necessary experience and qualifications).  Judges in the Appeals Chamber must be serving or former judges.

c) Judges are to be nominated and appointed by the Governing Council, after consultation with the Judicial Council. 

d) The permanent judges of each Trial Chamber shall elect a Presiding Judge from amongst their number, who shall oversee the work of the Trial Chamber as a whole.

e) The permanent and reserve judges shall be appointed for a term of five years. The terms and conditions of service shall be those of the judges of the Iraqi judicial system as set out in the Law Number 160 of 1979 (Judicial Organization Law), save that matters of compensation shall be set by the Governing Council in light of the increased risks associated with the position. 

f) (1) A judge shall be disqualified for any of the following reasons:

i.          He or she has a criminal record including a felony unless the felony is a political or false charge made by the Ba’ath Party regime;

ii.          He or she has made a material misrepresentation; or

iii.         He or she fails to carry out his or her duties without good reason.

  (2) The decision to disqualify a judge shall be taken by the majority of permanent judges of the Tribunal after conducting appropriate investigations. 

  (3) The decision to disqualify the President shall be taken by the Governing Council.

 

PART FIVE

The Presidency of the Tribunal

Article 6.

 

a) The President shall:

(1)        chair the proceedings of the Appeals Chamber. 

(2)        assign the judges to particular Trial Chambers;

(3)        assign, from time to time, any reserve judges to a Trial Chamber; and

(4)        have overall responsibility for the administration of the Tribunal.

b) The President of the Tribunal shall be required to appoint non-Iraqi nationals to act in advisory capacities or as observers to the Trial Chambers and to the Appeals Chamber.  The role of the non-Iraqi nationals shall be to provide assistance to the judges with respect to international law and the experience of similar tribunals (whether international or otherwise), and to monitor the protection by the Tribunal of general due process of law standards.  In appointing such non-Iraqi experts, the President of the Tribunal shall be entitled to request assistance from the international community, including the United Nations. 

c) The non-Iraqi advisors and observers referred to in the above paragraph shall also be persons of high moral character, impartiality and integrity.  In this regard, it would be preferable that such non-Iraqi advisor or observer shall have the following experience: (i) such person shall have acted in either a judicial or prosecutorial capacity in his or her respective country, or (ii) such person shall have experience in international war crimes trials or tribunals.

 

PART SIX

Tribunal Investigative Judges

Article 7. 

a) The Tribunal Investigative Judges shall be appointed in order to investigate individuals for the commission of crimes stipulated in Articles 11 to 14.

b) Tribunal Investigative Judges are to be nominated and appointed by the Governing Council, after consultation with the Judicial Council.  

c) There shall be up to twenty permanent Tribunal Investigative Judges, and up to ten reserve investigative judges.

d) The permanent and reserve investigative judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required for appointment to the highest judicial offices.  In the selection of investigative judges, due account shall be taken of the experience of the judges in criminal law and trial procedures. 

e) The Tribunal Investigative Judges shall be headed by a Chief Tribunal Investigative Judge, who shall be chosen by the Tribunal Investigative Judges from among them.

f) The Chief Tribunal Investigative Judge shall assign cases to individual tribunal investigative judges.

g) Each Office of the Tribunal Investigative Judge shall be composed of the Tribunal Investigative Judge and such other qualified staff as may be required.

h) In accordance with Iraqi criminal procedure, each Tribunal Investigative Judge shall have the power to issue subpoenas, arrest warrants and indictments with respect to individuals that they are investigating.

i) Each Tribunal Investigative Judge may gather evidence from whatever source he considers suitable.

j) Each Tribunal Investigative Judge shall act independently as a separate organ of the Tribunal.  He or she shall not seek or receive instructions from any Governmental Department, or from any other source, including the Governing Council.

k) The decisions or orders of the Tribunal Investigative Judge can be appealed to the Appeals Chamber within fifteen days of the notification or deemed notification of the decision.

l) Each Tribunal Investigative Judge shall be appointed for a term of three years.  The terms and conditions of service shall be those of the investigative judges of the Iraqi judicial system as set out in Law Number 160 of 1979 (Judicial Organization Law), save that matters of compensation shall be set by the Governing Council in light of the increased risks associated with the position. 

m) (1) Any Tribunal Investigative Judge shall be disqualified for any of the following reasons:

i)          He or she has a criminal record including a felony unless the felony is a political or false charge made by the Ba’ath Party regime;

ii)         He or she has made a material misrepresentation; or

iii)         He or she fails to carry out his or her duties without good reason.

    (2) The decision to disqualify a Tribunal Investigative Judge shall be taken by the majority of permanent judges of the Tribunal, after conducting appropriate investigations.

n) The Chief Tribunal Investigative Judge shall be required to appoint non-Iraqi nationals to act in advisory capacities or as observers to the Tribunal Investigative Judges.  The role of the non-Iraqi nationals and observers shall be to provide assistance to the Tribunal Investigative Judges with respect to the investigations and prosecution of cases covered by the this Statute (whether in an international context or otherwise), and to monitor the protection by the Tribunal Investigative Judges of general due process of law standards.  In appointing such advisors, the Chief Tribunal Investigative Judge shall be entitled to request assistance from the international community, including the United Nations.

o) The non-Iraqi advisors and observers referred to in this Article shall also be persons of high moral character, impartiality and integrity.  In this regard, it would be preferable that such non-Iraqi advisor or observer shall have the following experience: (i) such person shall have acted in either a judicial or prosecutorial capacity in his or her respective country, or (ii) such person shall have experience in international war crimes trials or tribunals.

 


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