Programm für Justizreform

Irak

ai: UN-Expertenkommission muss Programm für Justizreform entwickeln

Menschenrechts- und mögliche Kriegsverbrechen im Irak müssen aufgearbeitet werden / ai fordert führende Rolle der Vereinten Nationen bei der Entwicklung von Übergangsmodellen und der Reform des irakischen Justizsystems

London/Berlin, - amnesty international (ai) fordert die sofortige Einrichtung einer UN-Expertenkommission, die bestehende Verwaltungsstrukturen auswerten und ein umfassendes Reformprogramm für das irakische Justizsystem entwickeln sollte. Menschenrechtsverletzungen müssen systematisch und unabhängig aufgearbeitet werden.

In einem heute veröffentlichten Papier führt ai auf, welche grundlegenden Prinzipien bei der Aufarbeitung von Menschenrechtsverletzungen gelten müssen. Unter anderem dürfen Zivilisten oder Soldaten, die gegen internationales Recht verstoßen haben, nicht vor ein Militärtribunal gestellt werden. Keinem Angeklagten darf die Todesstrafe drohen. Alle Verbrechen müssen in fairen Verfahren untersucht, die Opfer umfassend entschädigt werden. Das Papier enthält außerdem eine Übersicht über verschiedene Aufarbeitungs-Modelle und zeigt deren jeweiligen Vor- und Nachteile auf.

„Die Vereinten Nationen verfügen über die notwendige Expertise, um Vorschläge für eine umfassende Reform des Justizwesens zu erarbeiten. Die Einbindung von Vertretern der irakischen Zivilgesellschaft sollte hierbei eine zentrale Rolle spielen„, sagte Ruth Jüttner, Irak-Expertin von amnesty international.

Eine weitere Aufgabe der UN-Expertenkommission sollte es sein, Empfehlungen für die strafrechtliche Verfolgung der Täter in der Übergangszeit zu geben. Zu den möglichen Modellen zählen internationale ad-hoc-Tribunale und gemischte Tribunale unter Einbeziehung irakischer Juristen. „Vorschläge über die Einrichtung von Tribunalen der Alliierten bergen das Risiko, als ‚Siegerjustiz’ wahrgenommen zu werden„, warnte Ruth Jüttner. „Weiterhin ist entscheidend, dass die Einrichtung solcher ad-hoc-Tribunale oder anderer Übergangsinstitutionen eng mit einem umfassenden Reformkonzept für das irakische Justizsystems verknüpft ist.„



Das ai-Papier mit dem Titel „Iraq - Ensuring justice for human rights abuses„ finden Sie unter http://web.amnesty.org/library/Index/ENGMDE140802003, weitere ai-Informationen zum Irak-Krieg unter www.amnesty.de oder www.amnesty.org.

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London/Berlin, 14. April 2003

Iraq
Looting, lawlessness and humanitarian consequences

Widespread looting and arson. Lawlessness and reprisal attacks. Water shortages and power cuts. Overwhelmed and ransacked hospitals. Disorder hampering humanitarian relief agencies. This is the grim reality facing millions of Iraqi civilians in areas newly under the control of US/UK forces. As one Iraqi told a BBC reporter on 10 April, „No authority now. No law now. No anything. Thieves anywhere.“

US and UK authorities were repeatedly warned before the conflict by Amnesty International and others that there was a grave risk of widespread disorder, humanitarian crisis and human rights abuses, including revenge attacks, once the Iraqi government’s authority was removed. Now that US/UK forces are occupying substantial parts of Iraq, they must live up to their specific responsibilities under international human rights and humanitarian law to protect the rights of Iraqi people.

Referring to the scenes of looting, the Secretary-General of the United Nations, Kofi Annan is reported to have said: „Obviously law and order must be a major concern…I think the (Security) Council has also reaffirmed that the Hague Regulation and the Geneva Conventions [on the duties of occupying powers] apply to this conflict and that the coalition has the responsibility for the welfare of the people in this area. And I am sure that will be respected“.

Amnesty International calls on the occupying forces to:take urgent measures to enforce law and order in areas under their control, specifically by preventing acts of pillage, destruction and violence to people;ensure the provision of food, water and medical supplies to people living in areas under their control;maintain medical and hospital services, public health and hygiene.

Looting, lawlessness and reprisal attacks



As US and UK tanks have swept into the centre of major Iraqi cities in recent days, numerous observers on the ground have reported on the chaos and lawlessness that have filled the political vacuum created. Beginning in Basra on 7 April, followed by Baghdad on 9 April and Kirkuk the following day, crowds of desperate people have taken to the streets, looting, burning and destroying government offices and, more ominously, institutions vital to their future, including schools, universities and hospitals. In most cases, the occupying forces have stood by, apparently unwilling or unprepared to take on policing functions.

Amnesty International is deeply concerned that the violence, if unchecked, may spread to reprisal attacks against people, as was seen so widely in 1991 during the uprisings that followed the last Gulf War. Among those at risk are members of the Ba’ath Party and the Republican Guard, along with their families, and people targeted on the basis of their ethnic or religious identity. The climate may also encourage settling of scores among various groups for political reasons, as appears to have been the case of the killing on 10 April of the leading Shi’a cleric Abd al-Majid al-Khoei (see below).

Amnesty International is also concerned about the removal and destruction of Iraqi government official documents by looters. Such documents can serve as important evidence in the future for any proceedings to bring alleged perpetrators of human rights violations to justice, and would help the new authorities in Iraq to run the country.



Basra

From almost the moment UK forces took control of the centre of Iraq’s second largest city on 7 April, the people sensed the vacuum of authority and so began three days of looting and lawlessness.

Ministry buildings, the university, government offices and homes of leading Ba’ath members were ransacked. AFP reported that the Oil Ministry, the national electricity company, the central bank and other government offices were stormed by people, who carried off their loot by foot, on donkeys, and in cars. The World Food Programme and UNICEF reported looting at food warehouses as well as schools and government facilities. Shops, offices and the Sheraton Hotel were reportedly ransacked.

Several reports indicate that UK forces at first did little or nothing to combat the disorder. According to AFP, UK troops were at the university campus hours before it was gutted, but stood by passively watching the mayhem.

UK military officials spoke of their reluctance to adopt a policing role. They were reported as saying that they saw looting as „a venting of anti-Saddam anger“.

Muayad Jumah Lefta, a doctor at Basra’s main hospital, itself reportedly targeted by looters, told a BBC journalist on 10 April that he was angry with the UK forces for failing to provide security. He said, „We’re getting patients who were hurt in the looting, stabbed by their neighbours, hit by bullets in squabbles between members of the Ba’ath Party and their rivals… The British are responsible for this.“

By 10 April UK forces were reportedly taking initial steps to restore order. However, aid agencies continued to say they would not enter Basra until they received assurances about their safety.



Baghdad

A similar pattern has been witnessed in the capital. As soon as US tanks rolled into the centre, the looting began and revenge was sought on the symbols and offices of Saddam Hussein’s regime. According to an AP report on 10 April, tens of thousands of people roamed the city looking for buildings to raid. The crowds carried off televisions, furniture, office equipment, cars and anything else they could move.

Among the places looted, according to AFP, were the mansions belonging to Deputy Prime Minister Tariq Aziz, Saddam Hussein’s son Uday and daughter Halah, and army generals in the Jadria and High Babel districts, as well as the offices of the Interior and Irrigation Ministries. AP reported looting of stores, government installations, the Transport Ministry, the Air Force officers’ club, the Olympic hospital and state laboratories. Al-Jazeera reported the ransacking of the German Embassy and the French Cultural Centre. Other newspapers reported the looting of the Oil Ministry, the Slovakian Embassy and the UNICEF headquarters.

Independent journalist Robert Fisk, reporting on events in Baghdad on 10 April, described traffic jams of looters, the denuding of virtually every government ministry, attempts to grab the grain so vital for the city’s bread supply - and all the while US sat back, witnessing the pillage but doing nothing.

In Saddam City, the poor, densely populated and predominantly Shi’a suburb of Baghdad, people broke into shops and homes to steal furniture and other goods. Some residents reportedly set up roadblocks to confiscate the loot.

In several areas, buildings were set on fire by the crowds. According to AP, parts of the Ministries of Interior and Education and the office block of Saddam Hussein’s son Uday were burned, while the Ministry of Transport building and the Iraqi Olympic Committee headquarters were gutted by fire.

The unwillingness of US troops to maintain law and order was reflected by Colonel John Toolan, a US marine commander. Standing amid the debris of the ransacked UN weapons inspectors’ compound, he told a Guardian reporter on 9 April: „It looks like some looting going on over there. Maybe people are seizing the chance to exploit the lack of public security.“

Many of the abandoned weapons and ammunition - including guns and guided missiles - that litter the city were also reportedly looted, possibly for use in future looting or in revenge attacks. AFP was told by a US Group Sergeant on 8 April that civilians had grabbed weapons from an army base in Baghdad.

The International Committee of the Red Cross (ICRC) said it was concerned that the looting was further hampering attempts to deliver humanitarian assistance. UNICEF’s representative to Iraq, Carel de Rooey, expressed similar fears when he told a press conference on 9 April: „What is terribly worrying about the looting, chaos and breakdown of order is that the systems we counted on may completely collapse.“

Amnesty International is also concerned that such a climate of lawlessness and disorder will facilitate reprisal attacks. On 7 April members of the Ba’ath Party in Basra were reportedly attacked, according to AFP. The news agency said that earlier that day UK soldiers had allowed local people to loot the local Ba’ath headquarters.

On 9 April, Peter Kessler of the UN High Commissioner for Refugees (UNHCR) warned that lawlessness in Iraq could trigger a population displacement and „revenge attacks among certain parts of Iraqi society“, AFP reported.

On 10 April a senior Shi’a religious leader, Abd al-Majid al-Khoei was stabbed to death at Imam ‘Ali mosque in al-Najaf. Two others were killed: Maher al-Yassiri an aide of al-Khoei, and Hayder al-Rafi’i, another religious leader in al-Najaf. Abd al-Majid al-Khoei had arrived in al-Najaf a few days earlier from the UK, where he had been living.

Late on 9 April US Central Command reportedly said its troops would try to re-establish order in Baghdad.



Kirkuk

On 10 April, soon after US and Kurdish peshmerga forces entered Kirkuk in northern Iraq, residents reportedly looted and destroyed the headquarters of the ruling Ba’ath Party, carried away air conditioners and equipment, and set fire to government offices. Unconfirmed reports suggested there had been violence directed at people, possibly involving reprisal killings.



Mounting humanitarian concerns



Millions of people in Iraq face grave dangers to their health, with many hospitals unable to cope with the number of war casualties and sick, and indications that serious water-spread diseases such as cholera are on the rise owing to the scarcity in some areas of clean water. Humanitarian agencies have reported that access to healthcare and medicines is increasingly difficult as medical stocks run low and disorder in the streets prevents the movement of health workers and ambulances.

„With the breakdown of law and order in Iraq, the situation now is extremely critical,“ said David Wilmhurst of the UN Humanitarian Coordinator for Iraq (UNHCI) on 9 April. „The longer the situation remains out of control, the more difficult it will be to start humanitarian relief operations.“

Aid agencies have long warned that Iraq’s 23 million people were in poor shape after years of sanctions, and that the provision of humanitarian aid during and after the conflict must be a high priority. By 10 April, the humanitarian situation was dire in some of the areas controlled by US/UK forces.

On 6 April UN relief agencies warned that a health crisis faced the five million inhabitants of Baghdad, with hospitals overwhelmed and infrastructure devastated. World Health Organisation (WHO) and ICRC officials confirmed that the capital’s hospitals were struggling to cope. The ICRC reported that some areas of Baghdad had no water at all. A UNICEF official said they were particularly worried about the impact on Baghdad’s children, almost half the city’s population. UNICEF also said that 100,000 children in Basra were threatened with serious illness because the water treatment plant had stopped functioning.

The same day the ICRC reported that emergency services were not being provided by the hospital in Umm Qasr and patients could not travel safely to Basra for treatment. It also said that the water situation in Umm Qasr remained a concern, and that there was no fuel available for pumps.

On 7 April WHO officials warned that Iraq was facing an outbreak of cholera and other infectious diseases as clean drinking water was scarce. On 8 April an ICRC spokeswoman told a news briefing that hospitals had reached their limit and that the main surgical hospitals and water treatment plants were relying solely on back-up generators. She described it as „an untenable situation“.

On 8 April the ICRC reported that in Saddam City, the flow of tap water was cut by half, and that lack of water and electricity supplies had badly affected Saddam Medical Centre. It reported acute water shortages in Kerbala, al-Najaf and Basra. The UK’s Department for International Development said that it understood there were water shortages in other parts of central Iraq, including Abu Ghraib, Mahmudiya, al-Hilla and al-Anbar. In al-Nasiriya, residents were reportedly out on the streets searching for water. The ICRC said it was maintaining some water supplies to hospitals and areas in particular need.

By 9 April the ICRC was describing the humanitarian situation in Baghdad as „critical“, particularly as health, power and water workers could not reach their workplaces safely, and many medical centres lacked water and electricity. One of the only international aid organizations working in Baghdad, it said it was temporarily suspending its humanitarian work in the capital because of the „chaotic and unpredictable“ atmosphere. The previous day a Canadian ICRC worker had been killed when his car was hit in crossfire in Baghdad.

On 10 April the ICRC resumed work in the capital but reported that al-Kindi hospital in Baghdad had been ransacked and that street violence and looting had forced the closure of others. US troops called in when looters stole two ambulances and medicines from the hospital replied that they had no orders to intervene, reported AFP. WHO officials said they were „extremely concerned that the apparent lack of law and order in Baghdad will have a very serious impact on health and healthcare in the Iraqi capital.“

The inability of ambulances and other vehicles to move freely in the capital was highlighted on 10 April by an AFP photographer, who reported that around 20 bodies, including those of children, were still strewn on the road between al-Dora and the airport, days after they were killed. The road is controlled by US forces.

In Basra, electricity had reportedly been restored to most of the city by 9 April, after many days without power, although damaged and polluted water distribution canals still needed repairs, UK military officials told the Independent.

In southern Iraq, the flow of humanitarian aid continued to be hampered by fears that Umm Qasr port was unsafe, the BBC reported on 8 April. The report said that only two UK ships carrying aid had docked so far.

ICRC spokesman Mu’een Kassis warned on 9 April, „The war may start at a point and end at another, but the humanitarian impact could last for many years to come.“

Recommendations to the occupying powers



Amnesty International urges the US/UK forces to live up to their responsibilities under international humanitarian law as occupying powers. These include the duty to restore and maintain public order and safety (Article 43 of the Hague Regulations). Any use of force that may be required should comply with international human rights and humanitarian law, including the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

In areas under their control, the occupying forces should urgently take measures to enforce law and order, specifically by preventing acts of looting and pillage, including of official Iraqi government documents, destruction and violence towards people. While recognizing that the UK/US military forces are not a policing force, Amnesty International urges them to do everything in their power to maintain law and order within the requirements of international human rights and humanitarian laws. Troops with the appropriate training and in adequate numbers must be deployed as a matter of urgency to ensure such functions.

Amnesty International reminds the occupying powers that they are obliged to ensure, if necessary, the provision of food and medical supplies to the inhabitants of the occupied territories (Article 55 of the Fourth Geneva Convention).

The Fourth Geneva Convention further states that the occupying power has the duty „of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territories“. The occupying powers should also ensure the availability of necessary supplies so that hospitals and medical services can work properly.

Iraq

Ensuring justice for human rights abuses

Those responsible for crimes under international law and other grave human rights abuses in Iraq must be brought to justice. To ensure that this goal is achieved, a comprehensive anti-impunity program needs to be developed. Its central pillar would be reforming the Iraqi criminal justice system. However, other complementary and transitional approaches will be needed, including approaches involving the international community.

Currently a number of proposals for bringing to justice perpetrators of human rights abuses in Iraq are being discussed. They reportedly include proposals for military tribunals or military commissions set up by the United States of America (USA). While under international humanitarian law the USA, as one of the occupying powers in Iraq, would be entitled within narrowly circumscribed limits to set up US courts in Iraq, there are a number of considerations that would make this approach undesirable.

Military tribunals should not be used to try civilians or to try soldiers accused of crimes under international law. Additional concerns include the fact that even if tribunals which have important fair trial guarantees are used, such as US courts martial, they will inevitably be perceived as victor’s justice. Other mechanisms, such as military commissions modelled on those established after the attacks in the USA of 11 September 2001, are administrative bodies, not courts, and their procedures are grossly unfair. In either case, defendants would be exposed to the death penalty.

Other proposals being discussed include approaches involving international mechanisms or the use of Iraqi judges in transitional arrangements. However, no in-depth authoritative analysis of the situation in Iraq has been carried out as yet.

In this context, Amnesty International calls for the urgent establishment of a United Nations (UN) commission of experts to develop proposals for a program that would address comprehensively the issue of justice in Iraq, with the participation of Iraqi civil society. Such a commission should begin work immediately, regardless of whatever transitional arrangements are made for governing Iraq.



Ensuring justice is fundamental for the countless victims of decades of grave violations of human rights by Iraqi government agents, as well as the victims of abuses committed by any parties in the course of several conflicts, including the ongoing war and its aftermath. It is also fundamental as a means to prevent the repetition of crimes under international law and other human rights abuses. In order to be fair and effective, all measures aimed at ensuring justice must be in full conformity with international human rights law and standards. Neither victims nor suspects should receive second class justice.

In this paper, Amnesty International outlines the role of the UN commission of experts and sets out fundamental principles which should govern any approach to ensuring justice for abuses in Iraq. It outlines the need for reforming the Iraqi criminal justice system, and reviews transitional and complementary approaches that ought to be considered as part of a comprehensive program to ensure justice.

The need for a United Nations commission of experts

A commission of experts, along the lines of the commission which led to the establishment of the International Criminal Tribunal for the former Yugoslavia, should be set up urgently to develop proposals for a comprehensive program to ensure justice in Iraq.

In particular, the commission should study the situation of the Iraqi criminal justice system and the existing body of Iraqi judges, prosecutors and lawyers. It should advise on a program for reviewing the background of criminal justice system officials, and for training, so as to ensure compliance with international human rights standards. It should also advise on possible transitional and complementary judicial approaches, pending the reform of the Iraqi criminal justice system.

The commission should be set up by the UN, which has recognized expertise and authoritativeness in this field. One of the commission’s central tasks would be to ensure the participation of Iraqi civil society organizations and experts in the development of the justice program. Preparations for such a commission should begin now. The commission could report in a matter of months.

In the meantime, all parties to the current conflict who are in authority in Iraq must ensure that evidence of crimes is properly preserved.





Fundamental principles for ensuring justice

The following fundamental principles should govern any approach to ensuring justice for abuses in Iraq:

(a) Independence and impartiality: any tribunal must be truly independent from the executive authority and pursue suspected perpetrators solely on the basis of the evidence against them and through a fair process, in strict accordance with international law and standards for fair trial.

(b) No selectivity: there should be no selectivity in the pursuit of suspects on the basis of nationality, rank, ethnicity, religion, or any other such ground. Anyone suspected of having committed crimes in Iraq must be brought to justice.

(c) No statute of limitations: grave abuses must be addressed regardless of when they occurred. In particular, there should be no statute of limitations for crimes under international law (including genocide, crimes against humanity and war crimes), whether committed at any time in the past or during the current war and in its aftermath.

(d) No amnesties: there should be no amnesties, pardons or similar measures for crimes under international law if such measures would prevent the emergence of the truth; a final judicial determination of guilt or innocence; and full reparation for victims and their families.

(e) Fair trials: suspects should be brought to justice in proceedings that fully respect international law and standards for fair trial at all stages of the proceedings. The presumption of innocence must be respected from the moment a person becomes a suspect until he or she is proved guilty beyond a reasonable doubt. Civilians must be tried only before civilian courts. Military personnel accused of crimes under international law must also be tried before civilian courts.

(f) No death penalty or torture or ill-treatment: there should be no recourse to the death penalty or other form of cruel, inhuman or degrading punishment, whatever the circumstances. Suspects must never be subjected to torture or ill-treatment.

(g) Reparation for victims: victims and their families must be accorded effective means to obtain full reparation for the violations they have suffered, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

These principles are derived from international human rights and humanitarian law and standards, including:

Articles 9, 14 and 15 of the International Covenant on Civil and Political Rights;The UN Standard Minimum Rules for the Treatment of Prisoners;The UN Body of Principles for All Persons under Any Form of Detention or Imprisonment;The UN Basic Principles on the Independence of the Judiciary;The UN Guidelines on the Role of Prosecutors;The UN Basic Principles on the Role of Lawyers;The UN Standard Minimum Rules for the Administration of Juvenile Justice;Article 37 of the Convention on the Rights of the Child;Article 75 of Protocol I Additional to the Geneva Conventions;The Rome Statute of the International Criminal Court.

Approaches to ensuring justice

1. Reforming the Iraqi criminal justice system

The first and foremost responsibility for ensuring justice for crimes in Iraq should rest with the Iraqi criminal justice system. However, Amnesty International has long been concerned about widespread human rights violations relating to the criminal justice system, including legislation inconsistent with international law and standards; grossly unfair trials; lack of independence; and the use of torture, the death penalty and other cruel, inhuman or degrading punishment.

Given this background, the Iraqi law enforcement agencies and the judiciary must be radically reformed to ensure that they operate in line with international human rights law and standards. This is likely to be a long-term process and must begin as a matter of priority.

The other complementary or transitional approaches for ensuring justice discussed in this paper should be viewed as supportive to this goal. Each of these approaches should be assessed in light of the impact they will make on the overall issue of impunity in Iraq.



2. Exploring transitional approaches

Transitional judicial approaches may be necessary given the likely time that it will take to reform the Iraqi criminal justice system, and the current limited potential for other international and regional approaches such as those outlined below. However, any transitional approach, if established, should support the goal of reforming the Iraqi criminal justice system.

As is common in certain countries in the Middle East, East Africa and Europe, foreign judges could be employed to serve on transitional tribunals, and other foreign experts could be recruited as prosecutors and defence lawyers and lawyers for victims. Judges, prosecutors and lawyers from other Arab countries could make a valuable contribution in this regard, given the similarity of many Arab legal systems and the common language. Conversely, questions about the impartiality of transitional tribunal will be raised if nationals from the USA or the United Kingdom (UK) serve on any such tribunals. Possible transitional approaches include:

(a) An international ad hoc tribunal

An international ad hoc tribunal for Iraq could be established by the Security Council, as in the case of the International Criminal Tribunals for the former Yugoslavia and Rwanda, or by the General Assembly.

There is a risk that politics at the Security Council or the General Assembly may lead to a tribunal with a mandate restricted only to abuses committed by Iraqi nationals, or with arbitrary temporal limitations, or with definitions of crimes, principles of criminal responsibility and defences inconsistent with international law. In addition, such a tribunal will require adequate resources and full cooperation by the international community, two requirements that have not been sufficiently met in the case of the two existing ad hoc tribunals. Both such tribunals were not established as part of a comprehensive program to rebuild national judicial systems. However, should these obstacles be overcome, an international ad hoc tribunal could prosecute a limited number of cases and thus contribute to ensuring justice.

(b) A mixed tribunal

A tribunal including both international and Iraqi judges could be established by the Security Council or in other ways. A precedent is the Special Court for Sierra Leone, established by a treaty between Sierra Leone and the United Nations in 2000. The Court, based in the country, has been funded solely by voluntary contributions, making financing uncertain and enabling it to investigate and prosecute only a small number of individuals. The international community failed to establish a program to rebuild the national criminal justice system so as to ensure that crimes not dealt with by the Special Court would be investigated and prosecuted in national courts. In addition, most such crimes are covered by a national amnesty, in contravention of international law.

Similar considerations and concerns relating to an international ad hoc tribunal would apply to a mixed tribunal. It would also require identifying Iraqi judges meeting international criteria of independence and impartiality and willing to serve on such a tribunal in the short term. If that can be achieved, such a tribunal would contribute to ensuring justice as in the case of an international ad hoc tribunal, with the added advantage of including Iraqi personnel.

3. International and regional approaches

There are already international approaches available for bringing to justice those responsible for crimes under international law committed in Iraq, including past and present crimes committed by the Iraqi authorities and their agents as well as crimes committed by any person belonging to any party in the context of recent conflicts, including the current war and its aftermath. A regional approach could be pursued.

(a) Universal jurisdiction

According to international law states are entitled, and in some cases required, to pursue alleged perpetrators of crimes under international law. This jurisdiction exists regardless of where and when these crimes occurred, regardless of the nationality of the suspects or victims and irrespective of whether there is any specific link with the country where the court is based, for example a threat to the state's own security.

Universal jurisdiction applies to genocide, crimes against humanity, war crimes, torture, extrajudicial execution and "disappearances" as the most serious crimes under international law, as well as to ordinary crimes under national law such as murder, abduction, assault and rape.

Obligations to bring to justice perpetrators of crimes under international law are found under customary international law, general principles of law, conventional international humanitarian law (specifically the four Geneva Conventions and Protocol I), and international human rights law (for example, obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

States should investigate and prosecute those suspected of such crimes before their own courts, or hand them over to another state able and willing to try them according to international standards for fair trial and without the imposition of the death penalty. There are several ways in which universal jurisdiction could contribute to ending impunity in Iraq. They include:

Individual foreign prosecutors and investigating judges exercising universal jurisdiction based on the chance arrival of suspects in a state;Individual foreign prosecutors and investigating judges exercising universal jurisdiction, as envisaged by the Geneva Conventions and used by some states, of investigating crimes when a suspect is not present, based on victims’ complaints, and requesting the suspect’s extradition;States agreeing to share responsibility for exercising universal jurisdiction.
Enacting effective universal jurisdiction legislation should be an urgent priority for all states (see Amnesty International, Universal jurisdiction: The duty of states to enact and implement legislation, AI Index: IOR 53/002/-018/2001, September 2001). However, many countries do not yet have enabling legislation for exercising universal jurisdiction or legislation that enables them to try perpetrators of certain crimes under international law. Other countries lack sufficient training or the political will to ensure such investigations and prosecution. In this context, the contribution that this approach would do the ensuring justice in Iraq is likely to be limited.

(b) The International Criminal Court

Under the Rome Statute, the current jurisdiction of the International Criminal Court (ICC) is limited to the crime of genocide, crimes against humanity and war crimes when committed within the territory of a state party or by nationals of a state party.

Further, the jurisdiction of the ICC is limited in time to 1 July 2002 for state parties that ratified the Rome Statute before its entry into force, and after the entry into force in the state party for those states that ratified the Rome Statute after it entered into force in July 2002. The scope of jurisdiction cannot be changed until the first review conference in 2009.

Iraq and the USA have not ratified the Rome Statute, whereas the UK has done so. However, states who are not party to the Rome Statute may nevertheless recognize the jurisdiction of the ICC by making a declaration under Article 12 (3) to accept „the exercise of jurisdiction by the Court with respect to the crime in question“.

Alternatively, under Article 13 (b) of the Rome Statute, the Security Council may adopt a resolution conferring jurisdiction to the ICC over a situation being considered under Chapter VII of the UN Charter. However, this can only be done with respect to crimes committed since 1 July 2002.

While using the ICC is a possibility, there are significant temporal and jurisdictional constraints which would make its contribution to ensuring justice in the context of Iraq extremely limited. Even without those constraints, the sustained US efforts to undermine the ICC make the prospects of a referral by the Security Council unrealistic in the short term.

(c) A regional criminal court

A regional criminal court, for example one set up within the framework of or linked to the League of Arab States, could be an appropriate mechanism for sharing the responsibility of bringing to justice perpetrators of the gravest crimes.

Similar initiatives of regional cooperation are being explored elsewhere, for example, the Caribbean Community (CARICOM) proposed Caribbean Court of Justice, which would have appellate criminal jurisdiction from all member states. Within the European Union, in addition to the existing institutions of Europol and Eurojust, the establishment of a European Prosecutor for certain financial offences is being considered. However, while a regional initiative of this nature should be pursued, it will require prompt consideration by Arab governments if it is to contribute to ensuring justice for abuses in Iraq.