1 SC Res 827 (25 May 1993).Google Scholar

2 SC Res 955 (8 Nov 1994).Google Scholar

3 Initially the Security Council adopted Res 1272 (25 Oct 1999), establishing a transitional administration, UNTAET, which on the basis of its mandate under Res 1272 created SCOPET.Google Scholar

4 (1998) 33 ILM 999.Google Scholar

5 UN-Sierra Leone Agreement establishing the Special Court (14 Jan 2002).Google Scholar

6 UN-Cambodia Agreement re ECCC (6 June 2003).Google Scholar

7 See Turns, D ‘Internationalised or Ad Hoc Justice for International Criminal Law in a Time of Transition: The Cases of East Timor, Kosovo, Sierra Leone and Cambodia’ (2001) 6 Austrian Review of International & European Law 123;Google ScholarLinton, S ‘New Approaches to International Justice in Cambodia and East Timor (2002) 845 IRRC 93.Google Scholar

8 Convention Respecting the Laws and Customs of War on Land and Regulations annexed, 36 Stat 2259.Google Scholar

9 See Roberts, A ‘What is a Military Occupation?’ (1984) 55 BYIL 249.Google Scholar

10 CPA/REG/16 May 2003/01.Google Scholar

11 Art 50, Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (No I) 75 UNTS 31; Art 51, Convention for the Amelioration of the Condition of the Wounded, Sick, and Ship-wrecked Members of Armed Forces at Sea (No II) 75 UNTS 85; Art 130, Convention Relative to the Treatment of Prisoners of War (No III) 75 UNTS 135; Art 147, Convention Relative to the Protection of Civilian Persons in Time of War (No IV) 75 UNTS 287.Google Scholar

12 CPA Regulation No 6, CPA/REG/13 July 2003/06.Google Scholar

13 See eg SC Res 1511 (16 Oct 2003) and 1500 (14 Aug 2003), which proclaim the IGC as being the principal body of Iraqi interim administration, but make no reference to the fact that it has practically no exclusive law or decision-making capacity.Google Scholar

14 CPA Order No 48, CPA/ORD/9 Dec 2003/48.Google Scholar

15 Arts 1 and 2, ibid.

16 Available at: <http://www.cpa-iraq.org/government/TAL.html>..>Google Scholar

17 This conclusion is further confirmed by Art 51 of the TAL, which excludes members of the Special Tribunal from employment in other governmental agencies. More importantly, however, Art 2(3) of CPA Order No 48 states that in the event of conflicts arising prior to the final transfer of authority to the transitional Iraqi administration, CPA law shall prevail. This means that following transfer of authority the new administration will be the supreme lawmaking body.Google Scholar

18 Art 29(b), Special Tribunal Statute.Google Scholar

19 SC Res 1483 (22 May 2003); SC Res 1546 (8 June 2004).Google Scholar

20 Art 10, Special Tribunal Statute.Google Scholar

21 Art 4(d), ibid.

22 Arts 6(b), 7(n), 8(j).Google Scholar

23 Arts 17(b) and 24(e), ibid; see also Art 2(l)–(2), CPA Order No 48, which states that the elements of crimes promulgated by the IGC should be consistent with international law and that the Tribunal must meet, at a minimum, international standards of justice.

24 Art l(b), Tribunal Special Statute.Google Scholar

25 See the work of the NGO ‘Indict’ which has been gathering evidence and campaigning since 1996 for the prosecution of the Hussein regime. Available at <http://www.indict.org.uk/index.php>..>Google Scholar

26 By way of comparison, the ICTY employs a staff of 1,238, while its expenditures for the year 2004–5 are expected to be $271,854,600. Figures available at <http://www.un.org/icty/glance/index.htm>. The Iraqi Tribunal is expected to have a budget of $75 million for the year 2004–5. Figure quoted by the Tribunal's chief administrator at <http://www.cnn.com/2004/WORLD/meast/04/20/iraq.main/>. It should be borne in mind that for all practical purposes the ICTY prosecutor investigates events that took place between 1991 and 1995, while his or her counterpart in the Iraqi Special Tribunal would be stretched to events between 1968–2003..+The+Iraqi+Tribunal+is+expected+to+have+a+budget+of+$75+million+for+the+year+2004–5.+Figure+quoted+by+the+Tribunal's+chief+administrator+at+.+It+should+be+borne+in+mind+that+for+all+practical+purposes+the+ICTY+prosecutor+investigates+events+that+took+place+between+1991+and+1995,+while+his+or+her+counterpart+in+the+Iraqi+Special+Tribunal+would+be+stretched+to+events+between+1968–2003.>Google Scholar

27 However, in ICTY Prosecutor v Hadzihasanovic et al, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (16 July 2003), Case No IT-01-47-AR72, available at <http://www.un.org/icty/hadzihas/appeal/decision-e/030716.htm>, the ICTY argued, wrongly in the opinion of this author, that the doctrine could be applied.,+the+ICTY+argued,+wrongly+in+the+opinion+of+this+author,+that+the+doctrine+could+be+applied.>Google Scholar

28 Art l(b), Special Tribunal Statute.Google Scholar

29 See Art 29, ICTY Statute.Google Scholar

30 See an excellent analysis by Shany, Y ‘Does One Size Fit All? Reading the New Iraqi Special Tribunal Statute in the Light of the Statutes of the International Criminal Tribunals’ (2004) 2 Journal of International Criminal Justice 338.CrossRefGoogle Scholar

31 Art 11, Special Tribunal Statute.Google Scholar

32 Art 12, ibid.

33 Art 13, ibid.

34 Art 14, ibid.

35 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.Google Scholar

36 In accordance with Art 2(g) of Law No 7 (1958), as amended.Google Scholar

37 In accordance with Art 1, ibid.

38 See Human Rights Watch The Anfal Campaign against the Kurds (1993) available at <http://www.hrw.org/reports/1993/iraqanfal/>..>Google Scholar

39 ICTY Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (1 Oct 1995), [Tadic Jurisdiction Decision], para 141.Google Scholar

40 Meron, T ‘The Geneva Conventions as Customary Law’ (1987) 81 AJIL 348.CrossRefGoogle Scholar

41 See Tadic Jurisdiction Decision (n 39) paras 128 ff.Google Scholar

42 See eg a letter dated 24 May 1994, addressed to the President of the Security Council by the UN Secretary-General, which reads in relevant part: ‘It must be observed that the violations of the law or customs of w a r...are offences when committed in international, but not in internal armed conflicts’ UN Doc S/1994/674 para 52.Google Scholar

43 Art 15, Special Tribunal Statute.Google Scholar

44 See Art 7, ICTY Statute; Arts 25 and 28, ICC Statute.Google Scholar

45 CTY Prosecutor v Tadic, Judgment (15 July 1999), Case No IT-94-1-A [Tadic Judgment] paras 196–220.Google Scholar

46 ibid para 191.

47 ibid paras 196 and 220.

48 ibid paras 202–3.

49 ibid para 204.

50 See Art 33 of the Special Tribunal Statute, which states that none of the Tribunal's judicial or other personnel must have been a member of the Ba'ath party; Art 31, TAL (n 16), which provides the criteria for election to the National Assembly. Similarly, the CPA adopted Order No 1, which is entitled ‘De-Ba'athification of Iraqi Society’ CPA/ORD/16 May 2003/01.Google Scholar

51 London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 280.Google Scholar

52 Iraqi Law No 111 (15 Dec 1969, without regard to amendments made thereafter) [1969 Iraqi Criminal Code], and a limited source of law for the Special Tribunal, contains in Arts 55–9 the offence/liability form of ‘criminal conspiracy, where participation or membership in the conspiracy even without an attempt to commit an offence renders the person liable as a conspirator’, available at <https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMOPublic.nsf>..>Google Scholar

53 Art 22(2) ICC Statute.Google Scholar

54 See Garraway, C ‘Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied?’ (1999) 836 IRRC 785;Google ScholarBantekas, I ‘Defences in International Criminal Law’ in McGoldrick, D, Rowe, P, Donnelly, E (eds) The Permanent International Criminal Court (Hart Publishing Oxford 2004) 263 ff.Google Scholar

55 Art 31, ICC Statute.Google Scholar

56 See eg Art 39, Iraqi Criminal Code (n 52), relating to mistake of fact and law; Arts 42–6, relating to self defence.Google Scholar

57 Art 3, Special Court Statute.Google Scholar

58 Art 5, ibid.

59 Art 6(b), ibid.

60 Art 7(n), ibid.

61 Art 8(j), ibid.

62 Human Rights Watch Memorandum to the Iraqi Governing Council on the Statute of the Iraqi Special Tribunal, (Dec 2003) available at <http://www.hrw.org/backgrounder/mena/iraq121703.htm>, 3.,+3.>Google Scholar

63 Art 16 Special Tribunal Statute.Google Scholar

64 ICTY Rules of Procedure and Evidence (as amended on 17 July 2003), ICTY Doc IT/32/Rev 28; ICC Rules, ICC Doc. ICC-ASP/1/3.Google Scholar

65 Available at <https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMOPublic.nsf/55dee6aleacf2d5685256cffl)0097fel/85256alc006ac77385256d34006030dc/Body/M2/Iraqi%2520Criminal%2520Procedure%2520Code%2520English.pdf?OpenElement>..>Google Scholar

66 Art 18(a), Special Tribunal Statute.Google Scholar

67 Art 18(b), ibid.

68 Art 18(d), ibid.

69 Art 19(a), ibid.

70 Art 19(b), ibid.

71 Art 23(b), ibid.

72 Art 25, ibid.

73 Art 26, ibid.

74 999 UNTS 171.Google Scholar

75 See Human Rights Watch Memorandum (n 62) 7.Google Scholar

76 See eg the following provisions contained in the Iraqi Criminal Procedure Law (n 65) as follows: Art 63(b), relating to the right of the accused to question witnesses; Arts 92–103, regarding arrest procedures; Art 126(b), guaranteeing the right to non-self incrimination; and Art 127, the right to be free from all forms of coercion or torture.Google Scholar

77 Although the ‘beyond reasonable doubt’ standard is not enshrined in the ICCPR, the UN Human Rights Committee, the quasi-judicial institution of the ICCPR, has stated in para 7 of its General Comment No 13 (Art 14(2) of the ICCPR) that ‘by reason of the presumption of innocence, the burden of proof for the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt’. UN Doc HRI/GEN/1/Rev.l at 14 (1994), available also at <http://wwwl.umn.edu/humanrts/gencomm/hrcom13.htm>..>Google Scholar

78 The only provisions in the Criminal Procedure Law which come close to formulating a standard of proof are Arts 203 and 213, which provide only that guilt will be pronounced ‘if the court is satisfied’.Google Scholar

79 CPA Memorandum No 3 (Revised) (27 June 2004) s 3.Google Scholar

80 Arts 243 ff, 1971 Criminal Procedure Law (n 65).Google Scholar

81 Iraq ratified the ICCPR in 1971, having made no subsequent reservation to its substantive provisions. See CCPR, Reservations and Declarations to the ICCPR, UN Doc CCPR/C/2/Rev 4 (24 Aug 1994).Google Scholar

82 See Art 85, Iraqi Criminal Code (n 52) and Art 285, Iraqi Criminal Procedure Law (n 65).Google Scholar

83 Bantekas, I and Hodgkinson, P ‘Capital Punishment at the United Nations: Recent Developments’ (2000) 10 Criminal Law Forum 31.Google Scholar

84 See generally Schabas, WThe Abolition of the Death Penalty in International Law (3rd edn CUP Cambridge 2003).Google Scholar

85 CPA/ORD/9 June 2003/07.Google Scholar

86 <http://news.scotsman.com/latest.cfm?id=3315589>..>Google Scholar

87 One immediate effect of this new Law was the refusal of European military contingents in Iraq to hand over detained persons to the authorities. See <http://www.boston.com/news/world/europe/articles/2004/08/ll/iraqs_death_penalty_irks_eu_member/>..>Google Scholar

88 Art 24(e), Special Tribunal Statute.Google Scholar

89 Art 24(f), ibid.

90 Art 109, ICC Statute.Google Scholar

91 Lathem, N ‘Saddam was $10B Bandit’ New York Post OnLine (19 Mar 2004), available at <http://www.nypost.com/news/worldnews/17336.htm>..>Google Scholar

92 Through CPA Order 90 (28 May 2004), a Special Task Force for Compensating Victims of the Previous Regime was established, which was due to provide a comprehensive report to the Interim Government on 1 Aug 2004.Google Scholar

93 See eg Global Policy Forum ‘US and British Support for Hussein Regime’ available at <http://www.globalpolicy.org/security/issues/iraq/history/nusseinindex.htm>..>Google Scholar

94 5 USC § 552a.Google Scholar

95 Ibid § 552, as amended by Public Law No 104–231,110 Stat 2422.

96 <http://www.rnw.nl/hotspots/html/irq040920.html>..>Google Scholar

97 McGoldrick, D ‘Criminal Trials Before International Tribunals: Legality and Legitimacy’ in McGoldrick (n 54) 9 ff.Google Scholar

98 CPA Regulation No 9 (9 June 2004).Google Scholar

99 <http:www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/07/02/wirq602.xml>..>Google Scholar

100 <http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=2&article_id=7133>..>Google Scholar