I.P.O. Information Service

PROSECUTION OF INTERNATIONAL CRIMES IN IRAQ –

LACK OF CONSTITUTIONAL BASIS FOR WAR CRIMES TRIALS

STATEMENT BY THE PRESIDENT OF THE I.P.O.

Cairo/Vienna, 19 December 2003/P/JS/18456-is

In a statement issued upon the conclusion of consultations with NGO experts in Egypt, the President of the International Progress Organization (I.P.O.), Dr. Hans Koechler, emphasized that the so-called “Iraqi Governing Council” does not possess the constitutional authority to promulgate the statute of a special criminal court to try international crimes committed by citizens of Iraq, including that country’s President. Dr. Koechler who is the author of the recently published book "Global Justice or Global Revenge? International Criminal Justice at the Crossroads" and a former UN observer at the Lockerbie trial in the Netherlands, outlined the legal facts of the Iraqi case as follows:

1. The members of the so-called “Iraqi Governing Council” (IGC) have been appointed by the principal occupying power in Iraq, i.e. the United States of America, on behalf of the so-called “Coalition Provisional Authority” (CPA). Those members have not been chosen – neither directly through a referendum nor indirectly through parliamentary elections – by the people of Iraq and, therefore, neither collectively nor individually, represent any form of legitimate authority according to internationally recognized legal standards.

2. The occupying power in Iraq has achieved control of the territory of Iraq through a war that was conducted without authorization by the Security Council of the United Nations (which alone – except in cases of self-defense according to Art. 51 of the UN Charter – possesses the authority to mandate military action against a sovereign state). For this reason, the 2003 war against Iraq is to be considered as an act of aggression against a United Nations member state and a grave breach of the UN Charter. As such, this breach of the peace calls for collective enforcement action by the international community with a view to restoring the sovereignty and independence of the Republic of Iraq. However, because of the US veto in the Security Council, no such action can realistically be expected for the foreseeable future.

3. "Ex injuria jus non oritur": no legal title can be derived from an illegal act. Furthermore, the crime of aggression is listed as international crime in the list of crimes under the jurisdiction of the International Criminal Court as well as in other international legal instruments, and involves personal criminal responsibility. In order to avoid the impression of victor’s justice, any court of law dealing with international crimes committed on the territory of Iraq will have to deal with this crime too – and not only with crimes committed by citizens of Iraq.

4. In view of the above facts and legal considerations, the pro forma "ceding," for a few hours, of non-existing "legislative authority" by the US administrator for Iraq (or: head of the "Provisional Coalition Authority" [CPA]) to the Iraqi "Governing Council" in order to provide it with "authority" to promulgate a (so far undisclosed) statute of a special Iraqi war crimes court – with the mandate to try the captured President of Iraq and other members of the country's leadership – has been a highly arbitrary act without any basis in law: A legally incompetent authority (the head of the CPA, namely Ambassador Paul Bremer of the US Department of State) has fictitiously transferred non-existing constitutional authority to a body (the Iraqi Governing Council) which operates, de facto as well as de jure, under the former's total control.

The President of the International Progress Organization emphasized that the present unconstitutional set-up for criminal trials and for the prosecution of international crimes committed by Iraqi citizens on the territory of Iraq can only be seen as “victor's justice" – the examples of which are numerous in recent history – whereby the victors establish the rules for the punishment of the vanquished, acting as “judges in their own cause.”

Dr. Koechler referred to the Memorandum of the I.P.O. of 23 August 2003, which was submitted to the UN Security Council, on "The legal implications of the 2003 war against and subsequent occupation of Iraq and requirements for the establishment of a legitimate constitutional authority in Iraq, including measures of criminal justice." He explained that credible measures of criminal justice, in the case of Iraq, must be (a) based on decisions of a legitimate constitutional authority (which is lacking at the moment), (b) undertaken without any control by or interference of the occupying power in Iraq and its allies, and (c) executed in strict observance of the separation of powers between the judicial, legislative and executive branches of government. All those conditions are presently not being met in Iraq – and may not be met, in a genuine and credible manner, in the foreseeable future.

Under the present circumstances, a fair trial of the captured President of Iraq or any other member of the Iraqi leadership will not be possible in Iraq. In this regard, the President of the I.P.O. rejected today’s claim by Iraq’s U.S.-appointed “Justice Minister” Hashim Abdul Rahman al-Shibly. If a trial is being conducted now in Iraq against the President or other leading politicians of that country, captured by the U.S. occupation forces, this move may be perceived as an act of victor's justice or mere revenge.

The President of the I.P.O., therefore, suggested a mixed domestic-international framework for the prosecution of international crimes committed on the territory of Iraq, combining provisions such as those agreed upon between the United Nations and the Republic of Sierra Leone, and the United Nations and the Kingdom of Cambodia respectively for the establishment of special courts (“Special Court for Sierra Leone,” "Extraordinary Chambers in the Courts of Cambodia") that will be composed of national and "international" judges. Such arrangements, however, would require the establishment of a legitimate constitutional authority in Iraq, which can only result from general elections that must be free and fair. “Justice must be seen to be done.” It cannot be enacted in a haphazard, though politically expedient, way, the President of the I.P.O. explained.

The details of the set-up of a criminal court with jurisdiction over international crimes in a situation as the one prevailing in Iraq – resulting from a war of aggression and the forceful removal of that country’s government – have been elaborated in the new book of Dr. Hans Koechler "Global Justice or Global Revenge? International Criminal Justice at the Crossroads," published by Springer: Vienna and New York, November 2003.

END/War crimes prosecution in Iraq/2003-12-19/P/JS/18456-is