Global Policy Forum

By Edith M. Lederer

The new Iraqi war crimes tribunal emulates the International Criminal Court which the United States vehemently opposes, an irony which the international court's supporters have been quick to note. The statute establishing the Iraqi Special Tribunal was approved by the Iraqi Governing Council and signed into law on Dec. 10 by L. Paul Bremer, the top U.S. administrator in Iraq, on behalf of the U.S.-led Coalition Provisional Authority. The Iraqi tribunal has come under scrutiny because members of the Iraqi Governing Council said this week that it would be used to try Saddam Hussein, though the United States says no decision has been made. The International Criminal Court is the first permanent international war crimes tribunal and aims to target the future Adolf Hitlers of the world. The United States is the most vocal opponent of the court, fearing that Americans - especially soldiers - could be singled out for frivolous or politically motivated prosecutions. The statute for the Iraqi tribunal was distributed to the U.N. Security Council this week by U.S. Ambassador John Negroponte, prompting comparison with the 1998 Rome statute that created the International Criminal Court. "It's the ultimate irony that the U.S. government, which is the greatest obstacle to the ICC today, helped oversee the drafting and inclusion of the very crimes from the very court that it treats as anathema into the language of the Iraqi Special Tribunal," Richard Dicker, head of the International Justice Program at Human Rights Watch, said Friday. Dicker said the Iraqi Governing Council "decided to literally cut and paste" definitions for genocide, crimes against humanity, and war crimes from the International Criminal Court statute.

The International Criminal Court will prosecute cases of genocide, war crimes and crimes against humanity committed after July 1, 2002, but will step in only when countries are unwilling or unable to dispense justice themselves. The United States objects to the idea that Americans could be subject to the court's jurisdiction even if the United States is not a party to the pact. But the more than 90 countries that have ratified the Rome treaty - including all 15 members of the European Union - counter that it contains enough safeguards to prevent such abuses. Dicker told The Associated Press that the Iraqi court's statute demonstrates that the International Criminal Court treaty sets a standard for these crimes. The American NGO Coalition for the International Criminal Court sent an e-mail to supporters Friday noting that "almost all of the substantive provisions are word for word from the ICC's Rome Statute." The e-mail noted that the Iraqi statute was drafted by an American supporter of the ICC who was chairman of the drafting committee at the Rome conference - Professor Cherif Bassiouni, president of DePaul University Law School's International Human Rights Law Institute in Chicago. The draft was then checked by lawyers in the coalition's legal office from Britain, Australia and the United States. The text apparently was approved in English and there is still no Arabic translation, it said. The Iraqi statute differs from the ICC statute in key ways: Its jurisdiction is limited to Iraqi nationals and residents accused of crimes between 1968 and May, whereas the ICC statute provides for cases to come to the court through a state that has ratified the treaty, the U.N. Security Council, or the court's prosecutor. The Iraqi statute also includes some crimes under Iraqi law as well as the death penalty - a problem for some European countries and the United Nations which oppose capital punishment. The coalition said the Iraqi court's reliance on the ICC statute clearly demonstrates that the Bush administration "considers it to be a reliable restatement of the current status of international law." But since "no American could ever be tried" by the Iraqi court it "does not reflect any softening of the U.S. ICC position," the coalition said.

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