19 May 2003
Iraqi Jurists Plan for Return to Rule of Law
(Group publishes proposed transitional justice plan) (1140) By Judy Aita Washington File United Nations Correspondent New York -- Unveiling their transitional justice plan, a group of Iraqi judges and lawyers said that any war crimes trials for Saddam Hussein's regime should use Iraq courts and jurists. The group of Iraqi jurists unveiled their 700-page proposed "transitional justice plan" in Iraq in New York and Baghdad May 15 in an effort to help re-establish the rule of law. The group, which includes former Iraqi judges, lawyers and law professors, began working on the justice issues as part of the Future of Iraq Project because they believed that the laws and institutions of Iraq must be restructured and reformed to serve and protect the interests of its citizens, the report said. Four members of the working group were in New York meeting with about 25 United Nations development and human rights officials to discuss the report. They were: Judge Fuad Jawad Ridha, a former Iraqi judge; Moniem Al-Khatib, a former Iraqi jurist; Rakiah Al-Kayssi, a law researcher; and Sermid Al-Sarraf, an attorney who was educated in Baghdad and now lives in the United States. Tariq Ali Al-Saleh, chairman of the Iraqi Jurists' Association, presented the report to a group of 100 Iraqi jurists in Baghdad. In order to re-establish civil society in post-Saddam Hussein Iraq, there must be a clear departure from the past and focus placed on the welfare of the Iraqi people, they said in the report. The report recommends that the future transitional constitution or basic law be based on the separation of the legislative, executive and judicial branches of government; recognition of Iraqi's multi-ethnic and multi-religious society; and commitments to international covenants ensuring human rights in Iraq. "The major contribution of this report is to emphasize the need for an independent judicial authority that is not beholden to any political or legislative body," Al-Sarraf said at a press conference. Al-Khatib added that the report reflects the desire and common experience of Iraqi jurists and lawyers both inside and outside Iraq. The report, published in Arabic and English, is divided into three sections which cover: truth, accountability, and reconciliation; legal reform; and institutional reform. It gives specific recommendations and proposes draft laws covering everything from war crimes to civil laws and deals with, among other things, Iraqi war crimes courts; amnesty; victim compensation; recovery of misappropriated public funds; removing the legacy of Hussein's ruling Baath party (de-ba'athification; reforms of criminal, military and civil laws; and institutional reform of the judiciary, military service, and prison system. "The Iraqi jurists feel very strongly that the international crimes of war crimes, crimes against humanity, and genocide must be prosecuted in Iraq by Iraqi jurists in Iraqi courts with international assistance," Al-Sarraf said. "There are many reasons for that. The first of which is that the Iraqi people are the largest group of victims of Saddam Hussein. The crimes were committed in Iraq, so from a legal point of view the jurisdiction for such prosecutions lie in Iraq," he said. "Taking the prosecutions away from Iraq will undermine the concept of establishing the rule of law in Iraq," he said. "If you assume that the Iraqi jurists cannot prosecute these crimes then you're basically not giving the Iraqi public confidence in their legal system, in a re-established, reconstituted judicial system." Second, unlike many other countries where post-conflict justice involved wars crimes and other human rights issues, "Iraq has a body of jurists who are more than qualified to handle such prosecutions," Al-Sarraf said. U.N. officials told the group, Al-Sarraf said, that the report "is one of the first times in a post-conflict situation that you have jurists from the country preparing such an extensive report on transitional justice issues" in the early post-conflict stages. Al-Khatib said, "we have been under brutal force for the last 30 years and we think that it is high time to introduce a legal system procedurally as well as a principle of law." Al-Khatib said he expects U.S. Ambassador L. Paul Bremer, the civilian administrator in Iraq, to be "pleasantly surprised to find very articulate, very experienced lawyers and judges in Iraq." "People have an impression that this is a lawless society, therefore they have no qualified legal system or qualified lawyers. This is a mistake. He will see this country has been a source of law throughout history" but was subverted by Saddam Hussein, Al-Khatib said. Al-Sarraf said another reason that Iraqis must take the lead in organizing and operating the tribunal is that the international community had many years to take action but did nothing, in contrast to the tribunals it organized in Rwanda and the former Yugoslavia. "The crimes committed against the Kurds in Halabja occurred 15 years ago in front of the world and yet the international community did not at that time or any time subsequently create the war crimes tribunal that was necessary to prosecute those crimes." The second major portion of the report deals with legal reforms, evaluating each area of the Iraqi code to identify those provisions that violate basic concepts of human rights. The jurists determined that the 1969 penal code and the 1971 criminal code of procedure are more than adequate to handle the majority of the prosecutions of crimes in the country, Al-Sarraf said. "The amendments that were introduced after those times by Saddam Hussein and his predecessor in the Ba'ath party...that violate human rights should be repealed." For example, he said a law that should be repealed is a provision that makes it a crime to publish information without authorization, an offense that is punishable by death. The third major area of the report deals with reform of the major justice sector institutions: the judiciary, the police, the prisons, the military and the security apparatuses. "The jurists looked at how the judiciary was subordinated and subverted and their authority and independence subverted into the executive authority by Saddam Hussein," Al-Sarraf said. "The judicial counsel or commission in the 1960s which was the supreme judicial authority was terminated and all of the courts were put under the jurisdiction of the ministry of justice, which is an executive authority. Beyond that, courts were created in each of the major ministries and other agencies -- the police had their own set of courts, the military had their own set of courts, the security apparatuses had their own set of courts, ministry of interior," he said. "Judicial authority was diluted to a degree that each of the courts reported through an executive power and therefore had no independence," he said. (The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
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