تفويض السلطة بشأن إنشاء محكمة عراقية خاصة

COALITION PROVSIONAL AUTHORITY ORDER NUMBER 48 DELEGATION OF AUTHORITY REGARDING AN IRAQI SPECIAL TRIBUNAL Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), and under the laws and usages of war, and consistent with relevant U.N. Security Council resolutions, including Resolution 1483 (2003), Resolution 1500 (2003), and Resolution 1511 (2003), Noting the call in U.N. Security Council Resolution 1483 for accountability for the crimes and atrocities committed by the previous Iraqi regime, Acting on the appeal by the U.N. Security Council in Resolution 1483 to Member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice; Acknowledging that the Governing Council, reflecting the general concerns and interests of the Iraqi people, has expressed a desire to establish a Special Tribunal to try members of the Ba`athist regime accused of atrocities and war crimes, Determined to prevent any threat to public order by revenge actions or vigilantism and to promote the rule of law in accordance with applicable international law, I hereby promulgate the following: 1) 2) 3) 4) Section 1 Delegation of Authority The Governing Council is hereby authorized to establish an Iraqi Special Tribunal (the “Tribunal”) to try Iraqi nationals or residents of Iraq accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws, by promulgating a statute, the proposed provisions of which have been discussed extensively between the Governing Council and the CPA and are set forth at Appendix A. The statute shall establish the Tribunal, including its chambers, and set forth its jurisdiction, competence, and organization: The statute shall provide rules for the appointment of qualified judges, prosecutors, and a director of administration. The Governing Council shall be authorized to promulgate elements of crimes, the provisions of which shall be coordinated with the CPA. 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 (the “Tribunal”). The jurisdiction and functioning of the Tribunal and its associated bodies as defined in Article 3 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. 2. one or more Trial Chambers; 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 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 or the Successor Government, 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, 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 or the Successor Government, 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 or the Successor Government in light of the increased risks associated with the position. f) (1) A judge shall be disqualified for any of the following reasons: i. ii. iii. 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; He or she has made a material misrepresentation; or 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 or the Successor Government. 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 or the Successor Government, 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 or the Successor Government. 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 or the Successor Government 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. SECTION TWO Other Departments of the Tribunal PART ONE The Prosecutions Department Article 8. a) The Prosecutions Department shall be responsible for the prosecution of persons responsible for crimes within the jurisdiction of the Tribunal. b) Each Prosecutor shall act independently. He or she shall not seek or receive instructions from any Governmental Department or from any other source, including the Governing Council or the Successor Government. c) The Prosecutions Department shall consist of up to twenty Prosecutors. d) Prosecutors are to be nominated and appointed by the Governing Council or the Successor Government after consultation with the Judicial Council. e) The Prosecution Department shall be headed by a Chief Prosecutor, who shall be selected from among the Prosecutors. f) (1) A prosecutor 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 Prosecutor shall be taken by the Chief Prosecutor, after conducting appropriate investigations. g) Each Office of the Prosecutor shall be composed of a Prosecutor and such other qualified staff as may be required. h) The Chief Prosecutor shall assign individual cases to a Prosecutor. Such Prosecutor shall have the right to be involved in the investigative stages of a case and shall be the individual who prosecutes such case, consistent with the powers granted to prosecutors pursuant to Law Number 23 of 1971 (Iraqi Criminal Procedure Law). i) Each Prosecutor shall be appointed for a term of three years. The terms and conditions of service shall be those of prosecutors of the Iraqi judicial system as set out in Law Number 159 of 1979 (The Law of Prosecutors), save that matters of compensation shall be set by the Governing Council or the Successor Government. j) The Chief Prosecutor shall be required to appoint non-Iraqi nationals to act in advisory capacities or as observers to the prosecutors. The role of the non-Iraqi nationals and observers shall be to provide assistance to the prosecutors of the Tribunal with respect to the investigations and prosecution of cases covered by this Statute (whether in an international context or otherwise), and to monitor the performance of the Prosecutor. In appointing such advisors, the Chief Prosecutor shall be entitled to request assistance from the international community, including the United Nations. k) 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 a prosecutorial capacity in his or her respective country, or (ii) such person shall have experience in international war crimes trials or tribunals. PART TWO The Administration Department Article 9. a) The Administration Department shall consist of a Director of the Administration Department and such other staff as may be required. b) The Administration Department shall be responsible for the administration and servicing of the Tribunal and the Prosecutions Department. c) The Director of the Administration Department shall initially be appointed by the Governing Council or the Successor Government. He or she shall serve for a three year term and be eligible for reappointment. The terms and conditions of service of the Director of the Administration Department shall be those of a General Director in an Iraqi government department . d) The staff of the Administration Department shall be appointed by the Director of the Administration Department. e) The Director of the Administration Department shall appoint a public relations expert to the position of spokesman of the Tribunal. Such spokesman shall give regular briefings to the press and the public at large with respect to the developments relating to the Tribunal. SECTION THREE Jurisdiction and Crimes PART ONE Jurisdiction of the Tribunal Article 10. The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 - 14, committed since July 17, 1968 and up and until May 1, 2003, in the territory of Iraq or elsewhere, namely: a) The crime of genocide; b) Crimes against humanity; c) War crimes; or d) Violations of certain Iraqi laws listed in Article 14 below. PART TWO The Crime of Genocide Article 11. a) For the purposes of this Statute and in accordance with the Convention on the Prevention and Punishment of the Crime of Genocide, dated December 9, 1948, as ratified by Iraq on January 20, 1959, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 1. killing members of the group; 2. causing serious bodily or mental harm to members of the group; 3. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4. imposing measures intended to prevent births within the group; and 5. forcibly transferring children of the group to another group. b) The following acts shall be punishable: 1. genocide; 2. conspiracy to commit genocide; 3. direct and public incitement to commit genocide; 4. attempt to commit genocide; and 5. complicity in genocide. PART THREE Crimes Against Humanity Article 12. a) For the purposes of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: 1. Murder; 2. Extermination; 3. Enslavement; 4. Deportation or forcible transfer of population; 5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental norms of international law; 6. Torture; 7. Rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity; 8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Tribunal; 9. Enforced disappearance of persons; and 10. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. b) For the purposes of paragraph a): 1. "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in the above paragraph against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack; 2. "Extermination" includes the intentional infliction of conditions of life, such as the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; 3. "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; 4. "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; 5. "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions; 6. "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; and 7. "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. PART FOUR War Crimes Article 13. For the purposes of this Statute, “war crimes” means: a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: 1. Willful killing; 2. Torture or inhuman treatment, including biological experiments; 3. Willfully causing great suffering, or serious injury to body or health; 4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 5. Willfully denying the right of a fair trial to a prisoner of war or other protected person; 6. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power; 7. Unlawful confinement; 8. Unlawful deportation or transfer; and 9. Taking of hostages. b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: 1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 2. Intentionally directing attacks against civilians objects, that is, objects which are not military objectives; 3. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations or in a humanitarian assistance mission, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; 4. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; 5. Intentionally launching an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; 6. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; 7. Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has surrendered at discretion; 8. Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; 9. The transfer, directly or indirectly, by the Government of Iraq or any of its instrumentalities (including by an instrumentality of the Arab Socialist Ba’ath Party), of parts of its own civilian population into any territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; 10. Intentionally directing attacks against buildings that are dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; 11. Subjecting persons of another nation to physical mutilation or to medical or scientific experiments of any kind that are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; 12. Killing or wounding treacherously individuals belonging to the hostile nation or army; 13. Declaring that no quarter will be given; 14. Destroying or seizing the property of an adverse party unless such destruction or seizure be imperatively demanded by the necessities of war; 15. Declaring abolished, suspended or inadmissible in a court of law, or otherwise depriving, the rights and actions of the nationals of the adverse party; 16. Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; 17. Pillaging a town or place, even when taken by assault; 18. Employing poison or poisoned weapons; 19. Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; 20. Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; 21. Committing outrages upon personal dignity, in particular humiliating and degrading treatment; 22. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity; 23. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; 24. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; 25. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under international law; and 26. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. c) In the case of an armed conflict, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: 1. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; 2. Committing outrages upon personal dignity, in particular humiliating and degrading treatment; 3. Taking of hostages; and 4. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. d) Serious violations of the laws and customs of war applicable in armed conflict not of an international character, within the established framework of international law, namely, any of the following acts: 1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 2. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; 3. Intentionally directing attacks against personnel, installations, material, units, or vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations or in a humanitarian assistance mission, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; 4. Intentionally directing attacks against buildings that are dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; 5. Pillaging a town or place, even when taken by assault; 6. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity; 7. Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; 8. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; 9. Killing or wounding treacherously a combatant adversary; 10. Declaring that no quarter will be given; 11. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind that are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; and 12. Destroying or seizing the property of an adversary, unless such destruction or seizure be imperatively demanded by the necessities of the conflict. PART FIVE Violations of Stipulated Iraqi Laws Article 14. The Tribunal shall have the power to prosecute persons who have committed the following crimes under Iraqi law: a) For those outside the judiciary, the attempt to manipulate the judiciary or involvement in the functions of the judiciary, in violation, inter alia, of the Iraqi interim constitution of 1970, as amended; b) c) The wastage of national resources and the squandering of public assets and funds, pursuant to, inter alia, Article 2(g) of Law Number 7 of 1958, as amended; and The abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended. SECTION FOUR Individual Criminal Responsibility Article 15. a) b) c) A person who commits a crime within the jurisdiction of this Tribunal shall be individually responsible and liable for punishment in accordance with this Statute. In accordance with this Statute, and the provisions of Iraqi criminal law, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Tribunal if that person: 1. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; 2. Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; 3. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; 4. In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: i. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Tribunal; or ii. Be made in the knowledge of the intention of the group to commit the crime; 5. In respect of the crime of genocide, directly and publicly incites others to commit genocide; 6. Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. The official position of any accused person, whether as president, prime minister, member of the cabinet, chairman or a member of the Revolutionary Command Council, a member of the Arab Socialist Ba’ath Party Regional Command or Government (or an instrumentality of either) or as a responsible Iraqi Government official or member of the Ba’ath Party or in any other capacity, shall not relieve such person of criminal d) e) responsibility nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in Articles 11 to 14. The fact that any of the acts referred to in Articles 11 to 14 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to submit the matter to the competent authorities for investigation and prosecution. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. SECTION FIVE Rules of Procedure and Evidence Article 16. The President of the Tribunal shall draft rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters (including regulations with respect to the disqualification of judges or prosecutors), where the applicable law, including this Statute does not, or does not adequately provide for a specific situation. He shall be guided by the Iraqi Criminal Procedure Law. Such rules shall be adopted by a majority of the permanent judges of the Tribunal. SECTION SIX General Principles of Criminal Law Article 17. a) Subject to the provisions of this Statute and the rules made thereunder, the general principles of criminal law applicable in connection with the prosecution and trial of any accused person shall be those contained: (i) in Iraqi criminal law as at July 17, 1968 (as embodied in The Baghdadi Criminal Code of 1919) for those offenses committed between July 17, 1968 and December 14, 1969; (ii) in Law Number 111 of 1969 (the Iraqi Criminal Code), as it was as of December 15, 1969, without regard to any amendments made thereafter, for those offenses committed between December 15, 1969 and May 1, 2003; and (iii) and in Law Number 23 of 1971 (the Iraqi Criminal Procedure Law). b) In interpreting Articles 11 to 13, the Trial Chambers and the Appellate Chamber may resort to the relevant decisions of international courts or tribunals as persuasive authority for their decisions. c) Grounds for exclusion of criminal responsibility under the said Iraqi Criminal Code shall be interpreted in a manner consistent with the Statute and with international legal obligations concerning the crimes within the jurisdiction of the Tribunal. d) The crimes stipulated in Articles 11 to 14 shall not be subject to any statute of limitations. SECTION SEVEN Investigations and Indictment Article 18. a) The Tribunal Investigative Judge shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from the police, and governmental and non- governmental organizations. The Tribunal Investigative Judge shall assess the information received or obtained and decide whether there is sufficient basis to proceed. b) The Tribunal Investigative Judge shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Tribunal Investigative Judge may, as appropriate, request the assistance of the relevant governmental authorities concerned, who shall be required to provide full co-operation with the request. c) If questioned by a Tribunal Investigative Judge, the suspect shall be entitled to be assisted by counsel of his or her own choice, including the right to have legal assistance assigned to him or her without payment by him or her in any such case if he or she does not have sufficient means to pay for it. The suspect is entitled to have non-Iraqi legal representation, so long as the principal lawyer of such suspect is Iraqi. d) Upon a determination that a prima facie case exists, the Tribunal Investigative Judge shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. PART ONE Review of Indictment Article 19. a) If the Chief Tribunal Investigative Judge is satisfied that a prima facie case has been established by the Tribunal Investigative Judge, then he/she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed without prejudice. b) Upon confirmation of an indictment, the Tribunal Investigative Judge may, at the request of the Chief Tribunal Investigative Judge, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial. PART TWO Rights of the Accused Article 20. a) All persons shall be equal before the Tribunal. b) Everyone shall be presumed innocent until proven guilty before the Tribunal in accordance with the law. c) In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of the Statute and the rules of procedure made hereunder. d) In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to a fair hearing conducted impartially and to the following minimum guarantees: 1. to be informed promptly and in detail of the nature, cause and content of the charge against him; 2. to have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing in confidence. The accused is entitled to have non-Iraqi legal representation, so long as the principal lawyer of such accused is Iraqi; 3. to be tried without undue delay; 4. to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; 5. to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute and Iraqi law; and 6. not to be compelled to testify against himself or to confess guilt, and to remain silent, without such silence being a consideration in the determination of guilt or innocence. SECTION EIGHT Trial Proceedings Article 21. a) A person against whom an indictment has been issued shall, pursuant to an order or an arrest warrant of the Tribunal Investigative Judge, be taken into custody, immediately informed of the charges against him and transferred to the Tribunal. b) The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with this Statute and the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses. c) The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. d) The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence. The decision to close the proceedings shall be exercised on a very limited basis. Article 22. The Tribunal shall, in its rules of procedure and evidence, provide for the protection of victims and witnesses. Such protection measures shall take into account the rights of the accused and shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the identity of the victim or witness. Article 23. a) The Trial Chambers shall pronounce judgments and impose sentences and penalties on persons convicted of crimes within the jurisdiction of the Tribunal. b) The judgment shall be rendered by a simple majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. Article 24. a) The penalties that shall be imposed by the Tribunal shall be those prescribed by Iraqi law (especially Law Number 111 of 1969 of the Iraqi Criminal Code), save that for the purposes of this Tribunal, sentences of life imprisonment shall mean the remaining natural life of the person. b) Subject to paragraph a) above, the penalties for crimes under Article 14 shall be those prescribed under the relevant provisions of Iraqi law c) The penalty for crimes under Articles 11 to 13 shall be determined by the Trial Chambers, taking into account the factors contained in paragraph d) and e) below. d) A person convicted of: 1. 2. An offence involving murder or rape as defined under Iraqi law; or An offence ancillary to such offence of murder or rape, shall be dealt with as for an offence of, as the case may be, murder or rape or the corresponding ancillary offences in relation to murder or rape. e) The penalty for any crimes under Articles 11 to 13 which do not have a counterpart under Iraqi law shall be determined by the Trial Chambers taking into account such factors as the gravity of the crime, the individual circumstances of the convicted person and relevant international precedents. f) The Trial Chambers may order the forfeiture of proceeds, property or assets derived directly or indirectly from that crime, without prejudice to the rights of the bona fide third parties. g) In accordance with Article 307 of the Iraqi Criminal Procedure Code, the Tribunal has authority to confiscate any goods prohibited by law regardless of whether the case has been discharged for any lawful reason. SECTION NINE Review and Appeals Proceedings PART ONE Appellate Proceedings Article 25. a) The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: 1. 2. 3. an error on a question of law invalidating any decision; an error of procedure; or an error of material fact which has occasioned a miscarriage of justice. b) The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers. c) Where a verdict of acquittal is reversed by the Appeals Chamber, the case shall be referred back to a Trial Chamber for retrial. PART TWO Review Proceedings Article 26. a) Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the Tribunal an application for review of the judgment. b) The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application has merit, it may, as appropriate: 1. Reconvene the original Trial Chamber; 2. Constitute a new Trial Chamber; or 3. Retain jurisdiction over the matter, with a view to, after hearing the parties, arriving at a determination on whether the judgment should be revised. SECTION TEN Enforcement of Sentences Article 27. Sentences shall be carried out by the legal system of Iraq in accordance with its laws. SECTION ELEVEN General Principles and Other Matters Article 28. The judges, investigative judges, prosecutors and the Director of the Administration Department shall be Iraqi nationals, except as provided for in Article 4(d). Article 29. a) The Tribunal and the national courts of Iraq shall have concurrent jurisdiction to prosecute persons for those offences prescribed in Article 14 that fall within the jurisdiction of the Tribunal. b) The Tribunal shall have primacy over all other Iraqi courts with respect to the crimes stipulated in Articles 11 to 13. c) At any stage of the procedure, the Tribunal may demand of any other Iraqi court to transfer any case being tried by it involving any crimes stipulated in Articles 11 to 14 to the Tribunal, and such court shall be required to transfer such case. Article 30. a) No person shall be tried before any other Iraqi court for acts for which he or she has already been tried by the Tribunal, in accordance with Articles 300 and 301 of the Iraqi Criminal Procedure Code. b) A person who has been tried by any Iraqi court for acts constituting crimes within the jurisdiction of the Tribunal may be subsequently tried by the Tribunal only if the Tribunal determines that the previous court proceedings were not impartial or independent, were designed to shield the accused from international or Iraqi criminal responsibility, or the case was not diligently prosecuted, provided that the requirements of Article 303 of the Iraqi Criminal Procedure Code are met or one of the conditions contained in Article 196 of the Iraqi Civil Procedure Code apply. c) In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the Tribunal shall take into account the extent to which any penalty imposed by an Iraqi court on the same person for the same act has already been served. Article 31. a) The Tribunal, the judges, the Tribunal Investigative Judges, the Prosecutors, the Director of the Administration Department and their staffs shall have immunity from civil suits for their official acts. b) Other persons, including the accused, required at the seat of the Tribunal shall be accorded such treatment as is necessary for the proper functioning of the Tribunal. Article 32. For purposes of this statute, the “Governing Council” shall mean the Governing Council of Iraq established on July 13, 2003. The powers conferred on the Governing Council in this Statute shall be transferred to the executive authority in any future government (the “Successor Government”) established following the disbanding of the Governing Council. Article 33. No officer, prosecutor, investigative judge, judge or other personnel of the Tribunal shall have been a member of the Ba’ath Party. Article 34. Arabic shall be the official language of the Tribunal. Article 35. The expenses of the Tribunal shall be borne by the regular budget of the Government of Iraq. Article 36. The President of the Tribunal shall submit an annual report of the Tribunal to the Governing Council or the Successor Government. Article 37. The Governing Council or the Successor Government has the powers to establish other rules and procedures in order to implement this Statute. Article 38. This law shall become effective on the 10th day of December, 2003 and shall be published in the Official Gazette.