ESTATUTO VIGENTE TRIBUNAL ESPECIAL IRAQUÍInstituido originalmente por el Consejo del Gobierno Provisorio Iraquí con fecha 10 de diciembre de 2003
Al-Waqa'i Al-Iraqiya
Official Gazette of the Republic of Iraq
Law of the Supreme Iraqi Criminal
Tribunal
Resolution Nº 10
In the Name of the People
The Presidency Council
Pursuant to what has been approved by the National Assembly in accordance with Article. 33 (A) and (B), and Article 30 of the Law of Administration for the State of Iraq for the Transitional Period, the presidency council decided in its session of 9 October 2005 to promulgate the following law:
Official Gazette of the Republic of Iraq
Law of the Supreme Iraqi Criminal
Tribunal
Resolution Nº 10
In the Name of the People
The Presidency Council
Pursuant to what has been approved by the National Assembly in accordance with Article. 33 (A) and (B), and Article 30 of the Law of Administration for the State of Iraq for the Transitional Period, the presidency council decided in its session of 9 October 2005 to promulgate the following law:
Number 10 of 2005
Law
of the Supreme Iraqi Criminal Tribunal
Law
of the Supreme Iraqi Criminal Tribunal
SECTION ONE
Establishment and Organization of the Tribunal
PART ONE
Establishment
Article 1:
First: A Tribunal is hereby established and shall be known as The Supreme Iraqi Criminal Tribunal (the "Tribunal"). The Tribunal shall enjoy complete independence.
Second: The Tribunal shall have jurisdiction over every natural person, whether Iraqi or non- Iraqi resident of Iraq, accused of committing any of the crimes listed in Articles 11, 12, 13 and 14 of this law, committed during the period from 17 July 1968 to 1 May 2003, in the Republic of Iraq or elsewhere, including the following crimes:
A. Genocide;
B. Crimes against humanity;
C. War crimes; and
D. Violations of Iraqi laws listed in Article 14 of this law.
Article 2:
The Tribunal shall have its seat in the city of Baghdad. It may hold its sessions in any govemorate, pursuant to a decree by the Council of Ministers upon the recommendation of the President of the Tribunal.
PARTT WO
Organizational Structure of the Tribunal
Article 3:
The Tribunal shall consist of:
First:
A. An Appeals Chamber with the power to review the rulings and decisions of the Trial Chambers or Investigative Judges
B. One or more Trial Chambers.
C. Investigative judges.
Second: Prosecutions Department
Third: An administration providing administrative and financial services to the Tribunal and the Public Prosecution.
Fourth:
A. The Appeals Chamber shall consist of nine judges who shall elect one of its members as a President. The President of the Appeals Chamber shall be the senior President of the Tribunal and shall supervise its administrative and financial affairs.
B. The Trial Chamber shall consist of five judges, who shall elect one of them as a President to supervise their work.
Fifth: The Council of Ministers may, if necessary, and on the basis of a proposal by the President of the Tribunal, appoint non- Iraqi judges who have experience in the crimes stipulated in this Law, and who shall be persons of high moral character, honesty and integrity, in the event that one of the parties is a State. These judges shall be appointed with the assistance of the intemational community, including the United Nations.
PART THREE
Selection of Judges and Prosecutors and Termination of Service
Article 4:
First: Judges and prosecutors shall be persons of high moral character, honesty and integrity, and shall have experience in the field of criminallaw and meet conditions for appointment stipulated in the Judicial Organization Law 160 of 1979 and the Public Prosecution Law 159 of 1979
Second: As an exception to the provisions of paragraph First of this Article, candidates for the positions of judges at the Appeals Chamber and the Trial Chambers, and for investigative judges and prosecutors shall be serving judges and prosecutors. Retired judges and prosecutors can be nominated regardless of age, as can Iraqi lawyers who possess a high level of, efficiency and experience, and absolute competence in accordance with the Legal Profession Law. 173 of 1965, and service of a judicial or legal nature or in the field of legal practice of no less than 15 years.
Third:
A. The Supreme Judicial council shall nominate all judges and prosecutors to the Tribunal. Following approval by the Council of Ministers, a decision for their appointment shall be issued by the Presidency Council. The appointments shall be of the first category, as an exception to the provisions of the Judicial Organization Law and the Public Prosecution Law. Their salaries and remunerations shall be specified through instructions issued by the Council of Ministers.
B. The judges, prosecutors and employees appointed in accordance with the law prior to this legislation shall be deemed legally approved as of the date of their appointment according to the provisions of Article (4)(Third)(A) taking into account the provisions of Article (33) of this law.
Fourth: The Presidency Council, upon a recommendation from the Council of Ministers, may transfer judges and prosecutors from the Tribunal to the Supreme Judicial Council for any reason.
Fifth: The services of a judge or prosecutor covered by the provisions of this law shall be terminated for one of the following reasons:
1. If he is convicted of a non-political felony.
2. If he presents false information.
3. If he fails to fulfill his duties without good reason.
Article 6:
First: A committee comprised of five members elected from among the Tribunal’s judges and prosecutors shall be established under the supervision of the Tribunal’s Appeals Chamber, and they shall select a president of the committee, which shall be called "Judges and Public Prosecutors Affairs Committee". The committee shall operate for one year and shall have the powers stipulated in the Judicial Organization Law and the Public Prosecution Law. It shall review matters relating to disciplinary measures and conditions of service pertaining to judges and prosecutors. Its decisions can be appealed before the full chamber of the Federal Appeal Court where they involve the termination ofthe services of a judge or prosecutor.
Second: The Committee shall, if the appeal before the full chamber of the Federal Appeal Court is rejected, submit a recommendation to the Council of Ministers for the issuance of an order by the Presidency Council to terminate the services of the judge or prosecutor, ineluding the President of the Tribunal if any of the conditions in Artiele 6 of this Artiele (sic) is met.
Third: Upon completion of the work of the Tribunal, the judges and prosecutors shall be transferred to the Supreme Judiciary Council to work in the federal courts. Those who have reached retirement age shall be pensioned off in accordance with the provisions of the law.
PART FOUR
The Presidency of the Tribunal
Article 7:
First: The president of the Tribunal shall:
A. Preside over the hearings of the Appeals Chamber.
B. Assign permanent and reserve judges to the Trial Chambers.
C. Assign a judge to a Trial Chamber in case of absence.
D. Ensure the completion of the administrative work of the Tribunal.
E. Appoint the Tribunal' s Administrative Director, Security Director, Public Relations Director and Archives and Documentation Director and terminate their services in accordance with the law.
F. Name an official spokesperson for the Tribunal from among the judges or
prosecutors.
Second: The President of the Tribunal may appoint non-Iraqi experts to work in the Trial Chambers and the Appeals Chamber to pro vide assistance in the field of intemationallaw and similar areas, whether intemational or otherwise. The appointment of these experts shall be undertaken with the assistance of the intemational community, including the United Nations.
Third: Non-Iraqi experts provided for in paragraph Second of this Article shall be persons of high moral character, honesty and integrity. The non- Iraqi expert shall preferably be a person who has previously worked in the judiciary or public prosecution in his country or in intemational war crimes tribunals.
PART FIVE
Investigative Judges
Article 8:
First: A Sufficient number of Investigative Judges shall be appointed.
Second: The Tribunal’s Investigative Judges shall be responsible for investigating those accused of committing crimes stipulated in Article l(Second) of this law.
Third: The Investigative Judges shall elect a Chief Investigative Judge and a Deputy from amongst them.
Fourth: The Chief Investigative Judge shall assign cases under investigation to individual Investigative Judges.
Fifth: Each of the Investigative Judges' Offices shall be composed of an Investigative Judge and such other qualified staff necessary as may be required for the work of the Investigative Judge.
Sixth: An Investigative Judge may gather prosecution evidence from whatever source he deems appropriate and to communicate directly with all relevant parties.
Seventh: The Investigative Judge shall act with complete independence as a separate organ of the Tribunal. He shall not be subject to or respond to requests or instructions from any govemmental body or any other party.
Eight: The decisions of the Investigative Judge can be challenged by appeal to the Appeals Chamber within fifteen days of the notification or deemed notification of the decision in accordance with the law.
Ninth: The Investigative Judge, after consultation with the President of the Tribunal, may appoint non-Iraqi experts to provide judicial assistance to the Investigative Judges in the investigation of cases provided for in this Law, whether intemational or otherwise. The Chief Investigative Judge may appoint these experts with the assistance of the intemational community, including the United Nations.
Tenth: The non - Iraqi experts and observers referred to in paragraph Ninth of this Article shall be persons of high moral character, honesty and integrity. The non- Iraqi expert or observer shall preferably be a person who has worked in the judiciary or public prosecution in his country or at intemational war crimes tribunals.
PARTS SIX
The Public Prosecution
Article 9:
First: A sufficient number of Prosecutors shall be appointed.
Second: The Prosecution Department shall be composed of a number of Prosecutors who shall be responsible for the prosecution of persons accused of crimes that fall within the jurisdiction of the Tribunal.
Third: Prosecutors shall elect a Chief Prosecutor and a Deputy from among them.
Fourth: Each Prosecution Office shall be composed of a Prosecutor and such other qualified staff as may be required for the Prosecutor' s work.
Fifth: Each prosecutor shall act with complete independence since he is considered as a separate entity from the Court. He shall not fall under, nor receive instructions from, any govemment department or from any other party. Each Prosecutor shall act with complete independence as a separate organ of the Tribunal. He shall not be subject to or respond to requests or instructions from the govemment or any other party.
Sixth: The Chief Prosecutor shall assign to Prosecutors cases requiring investigation and prosecution in court [Literally, presenting the case at the stage of tri al] in accordance with the powers granted to the Prosecutors by law.
Seventh: The Chief Prosecutor, in consultation with the President of the Tribunal, may appoint non- Iraqi experts to provide assistance to the Prosecutors with regard to the investigation and prosecution of cases provided for in this Law, whether intemational or otherwise. The Chief Prosecutor may appoint these experts with the assistance of the intemational community, including the United Nations.
Eighth: The non- Iraqi experts referred to in paragraph Seventh of this Article shall be persons of high moral character, honesty and integrity. The non- Iraqi expert shall preferably be a person who has acted in a prosecutorial capacity in his country or at intemational war crimes tribunals.
PART SEVEN
The Administration Department
Article 10:
First: The Administration Department shall be managed by an officer with the title of Department Director who holds a bachelor degree in law and has judicial and administrative experience. He shall be assisted by a number of employees in managing the affairs of the department.
Second: The Administration Department shall be responsible for the administrative, financial and servicing affairs of the Tribunal and the Prosecutions Department.
SECTION TWO
Court Jurisdiction
PART ONE
The Crime of Genocide
Article 11:
First: Por the purposes of this Law and in accordance with the Convention on the Prevention and Punishment of the Crime of Genocide, dated 9 December 1948, as ratified by Iraq on 20 January 1959, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such:
A. Killing members of the group;
B. Causing serious bodily or mental harm to members of the group;
C. Deliberately inflicting on the group living conditions calculated to bring about its physical destruction in whole or in part;
D. Imposing measures intended to prevent births within the group.
E. Forcibly transferring children of the group to another group.
Second: The following acts shall be punishable A. Genocide.
B. Conspiracy to commit genocide.
C. Direct and public incitement to commit genocide.
D. Attempt to commit genocide.
E. Complicity in genocide.
PART TWO
Crimes Against Humanity
Article 12
First: For the purposes of this Law, "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:
A. Willful killing;
B. Extermination;
C. Enslavement;
D. Deportation or forcible transfer of population;
E. Imprisonment or other severe deprivation of physicalliberty in violation of fundamental norms of intemationallaw;
F. Torture;
G. Rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity;
H. Persecution against any specific party or population on political, racial, national, ethnic, cultural, religious, gender or other grounds that are impermissible under intemationallaw, in connection with any act referred to as a form of sexual violence of comparable gravity;
I. Enforced disappearance of persons; and
J. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to the body or to the mental or physical health.
Second: For the purposes of implementing the provisions of paragraph First of this Article:
A. "Attack directed against any civilian population" means a course of conduct involving the multiple panel of acts referred to in paragraph First of this Article against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack;
B. "Extermination" means the intentional infliction of living conditions, such as the deprivation of access to food and medicine, with the intent to bring about the destruction of part of the population;
C. "Enslavement" means the exercise of any or all of the powers entailed by the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, particularly women and children;
D. "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;
E. "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 from, or related to legal punishments;
F. "Persecution" means the intentional and severe deprivation of fundamental rights contrary to internationallaw by reason of the identity of the group or population; and
G. ''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 THREE
War Crimes
Article 13
Por the purposes of this Law, "war crimes" shall mean the following:
First: 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:
A. Willful killing;
B. Torture or inhuman treatment, including biological experiments;
C. Willfully causing great suffering, or serious injury to body or health;
D. Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;
E. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power;
F. Willfully denying the right of a fair regular trial to a prisoner of war or other protected person;
G. Unlawful confinement;
H. Unlawful deportation or transfer; and I. Taking of hostages.
Second: Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of internationallaw, namely any of the following acts:
A. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
B. Intentionally directing attacks against civilian objects, including objects which do not constitute military objectives;
C. Intentionally directing attacks against personnel, installations, material, units or vehicles used in humanitarian assistance or peacekeeping missions in accordance with the Charter of the United Nations, as long as such missions are entitled to the protection given to civilians or civilian objects under the internationallaw of armed conflicts;
D. Intentionally launching an attack in the knowledge that such attack will cause incidentalloss of life or injury to civilians or civilian damage which would be c1early excessive in relation to the concrete and direct overall military advantages anticipated;
E. 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 c1early excessive in relation to the concrete and direct overall military advantage anticipated;
F. Attacking or bombarding, by whatever means, towns, villages, dwellings or building s which are undefended and which are not military objectives;
G. Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has c1early surrendered;
H. Making improper use of a flag of troce, or the flag, or 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;
I. The transfer, directly or indirectly, by the Government of Iraq or any of its agencies (inc1uding, for c1arification, any of the agencies of the Arab Ba' ath Socialist 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;
J. Intentionally directing attacks against building s which do not constitute military objectives, and are dedicated to religious, educational, artistic, scientific or charitable purposes, or against historie monuments, hospitals and places where the sick and wounded are collected;
K. 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;
L. Killing or wounding treacherously individual s belonging to a hostile nation
or army;
M. Dec1aring that no person is still alive ;
N. Destroying or seizing the civilian property of an adverse party unless such destruction or seizure be imperatively required by the necessities of war;
O. Declaring the abolition, suspension or prohibition of access to a court of law, with the intention of depriving the nationals of the hostile party from seeking their rights;
P. Compelling the nationals of the hostile party to take part in military operations directed against their own country, even if they were in the belligerent's service before the commencement of the war;
Q. Pillaging a town or place, even when taken by force;
R. Using poisons or poisoned weapons;
S. Using asphyxiating, poisonous or any other gases, as well as any other similar liquids, material s or devices;
T. Using 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
U. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
V. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity;
W. Utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations;
X. Intentionally directing attacks against buildings, material and medical units, means of transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with internationallaw;
y. Intentionally using starvation of civilians as a method of warfare by depriving them ofmaterial indispensable to their survival, including willfully impeding relief supplies as provided for under internationallaw; and
Z. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Third: 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, injury, detention or any other cause:
A. Use of violence against life and persons, in particular killing of all kinds, mutilation, cruel treatment and torture;
B. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
C. Taking of hostages; and
D. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all recognized and indispensable judicial guarantees.
Fourth: Other serious violations of the laws and customs of war applicable in armed conflict not of an intemational character. [sic] within the established framework of intemationallaw, specifically any of the following acts:
A. Intentionally directing attacks against the civilian population as such or against civilian individual s not taking direct part in hostilities;
B. Intentionally directing attacks against buildings, materials, medical transportation units and means, and personnel using the distinctive emblems of the Geneva Conventions in conformity with intemationallaw;
C. Intentionally directing attacks against personnel, installations, materials, units, or vehicles used in humanitarian assistance or peacekeeping missions in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian targets under the intemational law of armed conflict;
D. Intentionally directing attacks against building s dedicated to religious, educational, artistic, scientific or charitable purposes, or against historie monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
E. Pillaging any town or place, even when taken over by force;
F. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity;
G. Conscripting or listing children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
H. 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;
I. Killing or wounding treacherously a combatant adversary;
J. Declaring that no person is still alive;
K. Subjecting persons who are under the power of the other party in 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, causing death to such person or persons, or seriously endangering their health; and
L. Destroying or seizing the property of an adversary, unless such destruction or seizure is imperatively demanded by the necessities of the conflict.
PART FOUR
Violations of Iraqi Laws
Article 14
The Tribunal shall have the power to prosecute persons who have committed the following crimes:
First: Interference in the affairs of the judiciary or attempting to influence its functioning.
Second: The wastage and squandering of national resources, pursuant to Article 2(g) of the Punishment of Conspirators against Public Safety and Corrupters of the System ofGovernance Law 7 of 1958.
Third: The abuse of position and the pursuit of policies that have almost led to the threat of war or the use of the Iraqi armed forces against an Arab country, in accordance with Article 1 of Law 7 of 1958.
Fourth: If the Tribunal finds that the special element of any of the crimes stipulated in Articles 11, 12 and 13 ofthis Law is missing, and establishes that the act involved constitutes a crime punishable under the Penal Code or any other penallaw at the time of its commission, the Tribunal shall be competent to hear the case.
SECTION THREE
Individual Criminal Responsibility
Article 15
First: A person who commits a crime within the jurisdiction of this Tribunal shall be individually responsible and liable for punishment in accordance with this Law.
Second: In accordance with this Law, and the provisions of the Penal Code, a person shall be criminally responsible ifhe [or she]:
A. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that [other] person is criminally responsible;
B. Orders, solicits or induces the commission of such a crime, which has occurred or has been attempted;
C. Por the purpose of facilitating the commission of such a crime, aids, abets or by any other means assists in its commission or its attempted commission, including providing the means for its commission;
D. Contributing by any other means, together with a group of persons with a common criminal intent, to the commission or attempted commission of such a crime provided such contribution is intentional and is either:
1. 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;
2. Made with the knowledge of the intention of the group to commit the crime;
E. In respect of the crime of genocide, directly and publicly incites others to
commit this crime;
F. Attempts to commit such a crime by taking action with the intention of committing it, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who takes an action that precludes the commission or completion of the crime shall not be liable for punishment, nor will he be liable for punishment under this Law if he completely and voluntarily abandons his criminal purpose.
Third: The official position of any accused person, whether as president of the State, chairman or member of the Revolution Command Council, prime minister or member of the cabinet, or a member of the leadership of the Ba'ath Party, shall not relieve such person of criminal responsibility nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in Articles 11, 12, 13 and 14 of this Law.
Fourth: A superior is not relieved of the criminal responsibility for crimes committed by his subordinates, if he knew or had reason to know that the subordinate had committed, or was about to commit such acts, and the superior failed to take the necessary and reasonable measures to prevent such acts or to refer the matter to the competent authorities for investigation and prosecution.
Fifth: The fact that an accused person acted pursuant to an order of the Government or of his superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so
requires.
Sixth: Amnesty decrees issued prior to this Law coming into force do not apply to persons accused of committing any of the crimes stipulated in it.
SECTION FOUR
Rules of Procedure and Evidence
Article 16
The Tribunal shall follow the rules of procedure provided for in the Criminal Procedure Law 23 of 1971 and the Rules of Procedures and Evidence appended to this Law, of which it shall be considered an integral part.
SECTION FIVE
General Principies of Criminal Law
Article 17
First: In the absence of provisions in this Law and the rules made thereunder, the general principles of criminallaw contained in the following laws shall be applicable in connection with the prosecution and tri al of any accused persons:
A- Por the period 17/7/1968 to 14/12/1969, the Baghdadi Penal Code of 1919
B- Por the period 15/12/1969 to 1/5/2003, the Penal Code No. 111 of 1969, which was in force in1985 (Third Edition),
C- The Military Penal Code No. 13 of 1940, and the Code of Military Procedure No. 44 of 1941.
Second: In interpreting Articles 11, 12 and 13 of this Law, the Trial Chamber and Appeals Chamber may resort to the [relevant] decisions of international criminal tribunals.
Third: Grounds for exclusion of criminal responsibility under the Penal Code shall be implemented in a manner consistent with this Law and with internationallegal obligations concerning crimes within the jurisdiction of the Tribunal
Fourth: The crimes stipulated in Articles 11, 12, 13, and 14 of this Law shall not be subject to any statute of limitations.
SECTION SIX
Investigations and Indictment
Article 18
First: The Tribunal Investigative Judge shall initiate investigations on the basis of information obtained from any source, particularly from the police or any governmental or non-governmental source. The Investigative Judge shall assess the information received and decide whether there is sufficient basis to proceed
Second: The Investigative Judge shall have the power to question suspects, victims or their relatives, and witnesses, to collect evidence and to conduct on-site investigations. In carrying out his tasks, the Investigative Judge may, as appropriate, request the assistance of the relevant governmental authorities, who shall be required to provide full cooperation with the request
Third: Upon a determination that a prima facie case exists, the Investigative Judge shall prepare an indictment containing a concise statement of the facts and the crime with which the accused is charged under the Law, and shall refer the case to the Trial Chamber.
PART ONE
Rights of the Accused
Article 19
First: All persons shall be equal before the Tribunal.
Second:The accused shall be presumed innocent until pro ven guilty before the Tribunal in accordance with this law.
ThirdEvery accused shall be entitled to a public hearing, in accordance with the provisions of this law and the rules of procedure made hereunder.
Fourth:When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum
guarantees:
A. To be informed promptly and in detail of the content, nature and cause of the charge against him;
B. To have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing and to meet with him in private. The accused is entitled to have non-Iraqi legal representation so long as the principallawyer of such accused is Iraqi;
C. To be tried without undue delay;
D. To be tried in his presence, and to be assisted by counsel of his own choosing, or to be informed of his right to request legal assistance if he cannot afford it; and to have the right to seek such assistance that will allow him to appoint a lawyer without paying the fees;
E. To have the right to call and examine defence and prosecution witnesses, and to present any evidence in his defense in accordance with the law.
F. Not to be compelled to confess guilt, and to have the right to remain silent and not to testify without such silence being interpreted as evidence of guilt or innocence.
SECTION SEVEN
Trial Proceedings
Article 20
First: A person against whom an indictment has been issued shall be taken into custody, pursuant to an arrest order or warrant issued by the Tribunal Investigative Judge, and shall be immediately informed of the charges against him and transferred to the Tribunal.
Second: The Trial Chamber shall ensure a fair and expeditious trial conducted in accordance with this Law and the Rules of Procedure and Evidence annexed it, with full respect for the rights of the accused and due regard for the protection of victims or their relatives, and witnesses.
Third: The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected and guaranteed, ensure that the accused understands the charge or charges against him, and instruct the accused to enter a plea.
Fourth: The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with the Rules of Procedure and Evidence annexed to this Law. The decision to close the proceedings shall be exercised on a very limited basis.
Article 21
The Trial Chamber shall provide for the protection of victims or their relatives, and witnesses, in accordance with the Rules of Procedure and Evidence annexed to this Law, including the protection of the identity of the victims or their relatives, and witnesses.
Article 22
Relatives of victims and harmed persons who are Iraqi nationals may bring civil suits against the accused for damages resulting from acts which constitute crimes under this Law. The Tribunal shall have the power to adjudicate such claims in accordance with the Code of Criminal Procedure No 23 of 1971 and other relevant laws.
Article 23
First: The Trial Chamber shall pronounce judgments and impose sentences and penalties on persons convicted of crimes within the jurisdiction of the Court.
Second: The judgment shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in publico The judgment shall not be issued except on the basis of a decision to convict, to which the opinions of dissenting judges may be appended.
Article 24
First: The penalties imposed by the Tribunal shall be those prescribed by the Penal Code No. 111 of 1969, except for a sentence oflife imprisonment that means the remaining naturallife of the convicted person, taking into account the provisions stipulated in Artiele 17 of this Law.
Second: The penalties for the crimes under Artiele 14 of this Statute shall be those prescribed under Iraqi Penal Code and other penallaws.
Third: Taking into account paragraphs Fourth and Fifth of this artiele, the Trial Chambers shall determine the penalties for the crimes under Artieles 11, 12 and 13 of this Law
Fourth: A person convicted of crimes stipulated in the Penal Code shall be punished if committed:
A. Murder or rape as defined under the Penal Codeo E. Complicity in the commission of murder or rape.
Fifth: The penalty for any crimes under Artieles 11, 12, 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, guided by judicial precedents and relevant sentences issued by the intemational criminal tribunals.
Sixth: The Trial Chambers may order the forfeiture of assets, property or proceeds derived directly or indirectly from a crime, without prejudice to the rights of the bona fide third parties.
Seventh: In accordance with Article 307 of the Code of Criminal Procedure, the Trial Chambers shall have the authority to confiscate any material or goods prohibited by law regardless of whether the case has been discharged for any lawful reason.
SECTION EIGHT
Appeals Proceedings
PART ONE
Cassation
Article 25
First: The convicted person or the Prosecutor may contest the verdicts and decisions by appealing in cassation to the Appeals Chamber on the following grounds:
a. If the verdict is in contradiction with the law or there is an error in interpreting it.
b. An error of procedure.
c. An error of material fact which has occasioned a miscarriage of justice.
Second: The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers or the Investigative Judge
Third: Where the Appeals Chamber reverses a verdict of acquittal or release issued by the Trial Chamber or the Investigative Judge, the case shall be referred back to the Trial Chamber for retrial or to the Investigative Judge for implementation of its decision.
Fourth: The period allowed for the lodging of appeals shall be in accordance with the provisions of the Code of Criminal Procedure No. 23 of 1971, unless otherwise provided foro
PART TWO
Retrial
Article 26
First: Where new findings or facts have been discovered which were not known at the time of the proceedings before the Trial Chamber or the Appeals Chamber and which could have been a decisive factor in reaching the verdict, the convicted person or the Prosecutor may submit to the Tribunal an application for a retrial
Second: The Tribunal shall reject the application if it considers it to be unfounded. If the Tribunal determines that the application has merit , it may, after hearing the parties, and with a view to amending the judgment:
a. Send the case back to the original Trial Chamber to review it; or
b. Send the case to another Trial Chamber; or
c. The Appeals Chamber reviews the case.
SECTION NINE
Enforcement of Sentences
Article 27
First: Sentences shall be carried out in accordance with the law.
Second: No authority, including the President of the Republic, may grant a pardon or reduce the penalties issued by this Tribunal. Penalties shall be enforceable within thirty days of the sentence or decision reaching finality.
SECTION TEN
General and Final Provisions
Article 28
Investigative judges, Trial Chamber judges, members of the Prosecutions Department, Director of the Administration Department and Tribunal personnel shall be Iraqi nationals, taking into account Article 4 (Third) of this Law.
Article 29
First: The Tribunal and the national courts shall have concurrent jurisdiction to prosecute persons accused of the crimes prescribed in Article 14 of this Statute.
Second: The Tribunal shall have primacy over all other Iraqi courts with respect to its jurisdiction over the crimes prescribed in Articles 11, 12 and 13 of this Law.
Third: At any stage of the proceedings, the Tribunal may demand of any other court to transfer any case being tried by it involving any crimes prescribed in Articles 11, 12, 13 and 14 of this Law, and such court shall be required to transfer such case on demand.
Fourth: At any stage of the proceedings, the Tribunal may demand of any other court to transfer any case being tried by it involving any crimes prescribed in Articles 13, 14, 15 and 16 of this Law, and such court shall be required to transfer such case upon demand
Article 30
First: No person shall be tried before any other Iraqi court for crimes for which he has already been tried by the Tribunal, in accordance with Articles 300 and 301 of the Code of Criminal Procedure.
Second: A person who has been tried by any Iraqi court for a crime or crimes within the jurisdiction of the Tribunal may not be subsequently tried by the Tribunal unless the Tribunal determines that the previous court proceedings were not impartial or independent, or were designed to shield the accused from criminal responsibility. When taking a decision to order a retrial, one of the conditions contained in Article 196 of the Code ofCivil Procedure and the requirements of Article 303 of the Code of Criminal Procedure must be mer .
Third: In determining the penalty to be imposed on a person convicted of a crime under this Law, the Tribunal shall take into account the time served of any penalty imposed by an Iraqi court on the same person for the same crime.
Article 31
First: The President of the Tribunal, the Judges, the Investigation Judges, the Prosecutors, the Director of the Administration Department and the Tribunal staff shall have immunity from civil suits with respect to their official duties.
Second: Other persons, including the accused, shall be accorded such treatment as is necessary for the proper functioning of the Tribunal.
Article 32
Arabic shall be the officiallanguage of the Tribunal.
Article 33
No person belonging to the Ba'ath Party may be appointed as a Judge, Investigative Judge, Prosecutor, employee or any of the Tribunal’ s staff .
Article 34
The expenses of the Tribunal shall be borne by the regular budget of the State
Article 35
The President of the Tribunal shall prepare an annual report on the Tribunal’s work for submission to the Council of Ministers.
Article 36
The provisions of the Civil Service Law No. 24 of 1960, Personnel Law Nº 25 of 1960, State And Socialist Sector Employees Disciplinary Law No 14 of 1991 and Civil Service Retirement Law Nº 33 of 1966 shall apply to the Tribunal's employees other than the judges and members of Public Prosecution.
Article 37
The Statute of the Iraqi Special Tribunal for Crimes Against Humanity, Law Nº 1 of 2003, and the Rules of Procedure issued under Article 16 thereof shall be abolished with effect from the date of the coming into force of this Law
Article 38
All decisions and rules of procedure issued under Law Nº 1 of 2003 are considered correct and in accordance with the law '.
Article 39
In coordination with the President of the Tribunal, the Council of Ministers shall issue instructions to facilitate the implementation of this Law.
Article 40
This Law shall come into force on the date of its publication in the Official Gazette.
Jalal Talabani, President of the Republic
Adil Abd Al-Mahdi, Vice President of the Republic
Al-Shaikh Ghazi Ajil Al-Yawir, Vice President of the Republic
JUSTIFYING REASONS
To expose the crimes committed in Iraq from 17 July 1968 until1 May 2005 against the Iraqi people and the peoples of the region and the subsequent brutal massacres:
To lay down the rules and punishments to condemn after a fair trial the perpetrators of such crimes for waging wars, genocide, and crimes against humanity; To establish an national Supreme Iraqi Criminal Tribunal made up of Iraqi judges with high experience, competence and integrity, with the power to try these criminal’s
To reveal the truth, and the agonies and injustice caused by the perpetrators of such crimes;
To protect the rights of many Iraqis, redress injustices committed against them, and demonstrate heaven’s justice as the Almighty God wants it to be.
This law has been promulgated.
Establishment and Organization of the Tribunal
PART ONE
Establishment
Article 1:
First: A Tribunal is hereby established and shall be known as The Supreme Iraqi Criminal Tribunal (the "Tribunal"). The Tribunal shall enjoy complete independence.
Second: The Tribunal shall have jurisdiction over every natural person, whether Iraqi or non- Iraqi resident of Iraq, accused of committing any of the crimes listed in Articles 11, 12, 13 and 14 of this law, committed during the period from 17 July 1968 to 1 May 2003, in the Republic of Iraq or elsewhere, including the following crimes:
A. Genocide;
B. Crimes against humanity;
C. War crimes; and
D. Violations of Iraqi laws listed in Article 14 of this law.
Article 2:
The Tribunal shall have its seat in the city of Baghdad. It may hold its sessions in any govemorate, pursuant to a decree by the Council of Ministers upon the recommendation of the President of the Tribunal.
PARTT WO
Organizational Structure of the Tribunal
Article 3:
The Tribunal shall consist of:
First:
A. An Appeals Chamber with the power to review the rulings and decisions of the Trial Chambers or Investigative Judges
B. One or more Trial Chambers.
C. Investigative judges.
Second: Prosecutions Department
Third: An administration providing administrative and financial services to the Tribunal and the Public Prosecution.
Fourth:
A. The Appeals Chamber shall consist of nine judges who shall elect one of its members as a President. The President of the Appeals Chamber shall be the senior President of the Tribunal and shall supervise its administrative and financial affairs.
B. The Trial Chamber shall consist of five judges, who shall elect one of them as a President to supervise their work.
Fifth: The Council of Ministers may, if necessary, and on the basis of a proposal by the President of the Tribunal, appoint non- Iraqi judges who have experience in the crimes stipulated in this Law, and who shall be persons of high moral character, honesty and integrity, in the event that one of the parties is a State. These judges shall be appointed with the assistance of the intemational community, including the United Nations.
PART THREE
Selection of Judges and Prosecutors and Termination of Service
Article 4:
First: Judges and prosecutors shall be persons of high moral character, honesty and integrity, and shall have experience in the field of criminallaw and meet conditions for appointment stipulated in the Judicial Organization Law 160 of 1979 and the Public Prosecution Law 159 of 1979
Second: As an exception to the provisions of paragraph First of this Article, candidates for the positions of judges at the Appeals Chamber and the Trial Chambers, and for investigative judges and prosecutors shall be serving judges and prosecutors. Retired judges and prosecutors can be nominated regardless of age, as can Iraqi lawyers who possess a high level of, efficiency and experience, and absolute competence in accordance with the Legal Profession Law. 173 of 1965, and service of a judicial or legal nature or in the field of legal practice of no less than 15 years.
Third:
A. The Supreme Judicial council shall nominate all judges and prosecutors to the Tribunal. Following approval by the Council of Ministers, a decision for their appointment shall be issued by the Presidency Council. The appointments shall be of the first category, as an exception to the provisions of the Judicial Organization Law and the Public Prosecution Law. Their salaries and remunerations shall be specified through instructions issued by the Council of Ministers.
B. The judges, prosecutors and employees appointed in accordance with the law prior to this legislation shall be deemed legally approved as of the date of their appointment according to the provisions of Article (4)(Third)(A) taking into account the provisions of Article (33) of this law.
Fourth: The Presidency Council, upon a recommendation from the Council of Ministers, may transfer judges and prosecutors from the Tribunal to the Supreme Judicial Council for any reason.
Fifth: The services of a judge or prosecutor covered by the provisions of this law shall be terminated for one of the following reasons:
1. If he is convicted of a non-political felony.
2. If he presents false information.
3. If he fails to fulfill his duties without good reason.
Article 6:
First: A committee comprised of five members elected from among the Tribunal’s judges and prosecutors shall be established under the supervision of the Tribunal’s Appeals Chamber, and they shall select a president of the committee, which shall be called "Judges and Public Prosecutors Affairs Committee". The committee shall operate for one year and shall have the powers stipulated in the Judicial Organization Law and the Public Prosecution Law. It shall review matters relating to disciplinary measures and conditions of service pertaining to judges and prosecutors. Its decisions can be appealed before the full chamber of the Federal Appeal Court where they involve the termination ofthe services of a judge or prosecutor.
Second: The Committee shall, if the appeal before the full chamber of the Federal Appeal Court is rejected, submit a recommendation to the Council of Ministers for the issuance of an order by the Presidency Council to terminate the services of the judge or prosecutor, ineluding the President of the Tribunal if any of the conditions in Artiele 6 of this Artiele (sic) is met.
Third: Upon completion of the work of the Tribunal, the judges and prosecutors shall be transferred to the Supreme Judiciary Council to work in the federal courts. Those who have reached retirement age shall be pensioned off in accordance with the provisions of the law.
PART FOUR
The Presidency of the Tribunal
Article 7:
First: The president of the Tribunal shall:
A. Preside over the hearings of the Appeals Chamber.
B. Assign permanent and reserve judges to the Trial Chambers.
C. Assign a judge to a Trial Chamber in case of absence.
D. Ensure the completion of the administrative work of the Tribunal.
E. Appoint the Tribunal' s Administrative Director, Security Director, Public Relations Director and Archives and Documentation Director and terminate their services in accordance with the law.
F. Name an official spokesperson for the Tribunal from among the judges or
prosecutors.
Second: The President of the Tribunal may appoint non-Iraqi experts to work in the Trial Chambers and the Appeals Chamber to pro vide assistance in the field of intemationallaw and similar areas, whether intemational or otherwise. The appointment of these experts shall be undertaken with the assistance of the intemational community, including the United Nations.
Third: Non-Iraqi experts provided for in paragraph Second of this Article shall be persons of high moral character, honesty and integrity. The non- Iraqi expert shall preferably be a person who has previously worked in the judiciary or public prosecution in his country or in intemational war crimes tribunals.
PART FIVE
Investigative Judges
Article 8:
First: A Sufficient number of Investigative Judges shall be appointed.
Second: The Tribunal’s Investigative Judges shall be responsible for investigating those accused of committing crimes stipulated in Article l(Second) of this law.
Third: The Investigative Judges shall elect a Chief Investigative Judge and a Deputy from amongst them.
Fourth: The Chief Investigative Judge shall assign cases under investigation to individual Investigative Judges.
Fifth: Each of the Investigative Judges' Offices shall be composed of an Investigative Judge and such other qualified staff necessary as may be required for the work of the Investigative Judge.
Sixth: An Investigative Judge may gather prosecution evidence from whatever source he deems appropriate and to communicate directly with all relevant parties.
Seventh: The Investigative Judge shall act with complete independence as a separate organ of the Tribunal. He shall not be subject to or respond to requests or instructions from any govemmental body or any other party.
Eight: The decisions of the Investigative Judge can be challenged by appeal to the Appeals Chamber within fifteen days of the notification or deemed notification of the decision in accordance with the law.
Ninth: The Investigative Judge, after consultation with the President of the Tribunal, may appoint non-Iraqi experts to provide judicial assistance to the Investigative Judges in the investigation of cases provided for in this Law, whether intemational or otherwise. The Chief Investigative Judge may appoint these experts with the assistance of the intemational community, including the United Nations.
Tenth: The non - Iraqi experts and observers referred to in paragraph Ninth of this Article shall be persons of high moral character, honesty and integrity. The non- Iraqi expert or observer shall preferably be a person who has worked in the judiciary or public prosecution in his country or at intemational war crimes tribunals.
PARTS SIX
The Public Prosecution
Article 9:
First: A sufficient number of Prosecutors shall be appointed.
Second: The Prosecution Department shall be composed of a number of Prosecutors who shall be responsible for the prosecution of persons accused of crimes that fall within the jurisdiction of the Tribunal.
Third: Prosecutors shall elect a Chief Prosecutor and a Deputy from among them.
Fourth: Each Prosecution Office shall be composed of a Prosecutor and such other qualified staff as may be required for the Prosecutor' s work.
Fifth: Each prosecutor shall act with complete independence since he is considered as a separate entity from the Court. He shall not fall under, nor receive instructions from, any govemment department or from any other party. Each Prosecutor shall act with complete independence as a separate organ of the Tribunal. He shall not be subject to or respond to requests or instructions from the govemment or any other party.
Sixth: The Chief Prosecutor shall assign to Prosecutors cases requiring investigation and prosecution in court [Literally, presenting the case at the stage of tri al] in accordance with the powers granted to the Prosecutors by law.
Seventh: The Chief Prosecutor, in consultation with the President of the Tribunal, may appoint non- Iraqi experts to provide assistance to the Prosecutors with regard to the investigation and prosecution of cases provided for in this Law, whether intemational or otherwise. The Chief Prosecutor may appoint these experts with the assistance of the intemational community, including the United Nations.
Eighth: The non- Iraqi experts referred to in paragraph Seventh of this Article shall be persons of high moral character, honesty and integrity. The non- Iraqi expert shall preferably be a person who has acted in a prosecutorial capacity in his country or at intemational war crimes tribunals.
PART SEVEN
The Administration Department
Article 10:
First: The Administration Department shall be managed by an officer with the title of Department Director who holds a bachelor degree in law and has judicial and administrative experience. He shall be assisted by a number of employees in managing the affairs of the department.
Second: The Administration Department shall be responsible for the administrative, financial and servicing affairs of the Tribunal and the Prosecutions Department.
SECTION TWO
Court Jurisdiction
PART ONE
The Crime of Genocide
Article 11:
First: Por the purposes of this Law and in accordance with the Convention on the Prevention and Punishment of the Crime of Genocide, dated 9 December 1948, as ratified by Iraq on 20 January 1959, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such:
A. Killing members of the group;
B. Causing serious bodily or mental harm to members of the group;
C. Deliberately inflicting on the group living conditions calculated to bring about its physical destruction in whole or in part;
D. Imposing measures intended to prevent births within the group.
E. Forcibly transferring children of the group to another group.
Second: The following acts shall be punishable A. Genocide.
B. Conspiracy to commit genocide.
C. Direct and public incitement to commit genocide.
D. Attempt to commit genocide.
E. Complicity in genocide.
PART TWO
Crimes Against Humanity
Article 12
First: For the purposes of this Law, "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:
A. Willful killing;
B. Extermination;
C. Enslavement;
D. Deportation or forcible transfer of population;
E. Imprisonment or other severe deprivation of physicalliberty in violation of fundamental norms of intemationallaw;
F. Torture;
G. Rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity;
H. Persecution against any specific party or population on political, racial, national, ethnic, cultural, religious, gender or other grounds that are impermissible under intemationallaw, in connection with any act referred to as a form of sexual violence of comparable gravity;
I. Enforced disappearance of persons; and
J. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to the body or to the mental or physical health.
Second: For the purposes of implementing the provisions of paragraph First of this Article:
A. "Attack directed against any civilian population" means a course of conduct involving the multiple panel of acts referred to in paragraph First of this Article against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack;
B. "Extermination" means the intentional infliction of living conditions, such as the deprivation of access to food and medicine, with the intent to bring about the destruction of part of the population;
C. "Enslavement" means the exercise of any or all of the powers entailed by the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, particularly women and children;
D. "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;
E. "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 from, or related to legal punishments;
F. "Persecution" means the intentional and severe deprivation of fundamental rights contrary to internationallaw by reason of the identity of the group or population; and
G. ''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 THREE
War Crimes
Article 13
Por the purposes of this Law, "war crimes" shall mean the following:
First: 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:
A. Willful killing;
B. Torture or inhuman treatment, including biological experiments;
C. Willfully causing great suffering, or serious injury to body or health;
D. Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;
E. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power;
F. Willfully denying the right of a fair regular trial to a prisoner of war or other protected person;
G. Unlawful confinement;
H. Unlawful deportation or transfer; and I. Taking of hostages.
Second: Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of internationallaw, namely any of the following acts:
A. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
B. Intentionally directing attacks against civilian objects, including objects which do not constitute military objectives;
C. Intentionally directing attacks against personnel, installations, material, units or vehicles used in humanitarian assistance or peacekeeping missions in accordance with the Charter of the United Nations, as long as such missions are entitled to the protection given to civilians or civilian objects under the internationallaw of armed conflicts;
D. Intentionally launching an attack in the knowledge that such attack will cause incidentalloss of life or injury to civilians or civilian damage which would be c1early excessive in relation to the concrete and direct overall military advantages anticipated;
E. 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 c1early excessive in relation to the concrete and direct overall military advantage anticipated;
F. Attacking or bombarding, by whatever means, towns, villages, dwellings or building s which are undefended and which are not military objectives;
G. Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has c1early surrendered;
H. Making improper use of a flag of troce, or the flag, or 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;
I. The transfer, directly or indirectly, by the Government of Iraq or any of its agencies (inc1uding, for c1arification, any of the agencies of the Arab Ba' ath Socialist 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;
J. Intentionally directing attacks against building s which do not constitute military objectives, and are dedicated to religious, educational, artistic, scientific or charitable purposes, or against historie monuments, hospitals and places where the sick and wounded are collected;
K. 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;
L. Killing or wounding treacherously individual s belonging to a hostile nation
or army;
M. Dec1aring that no person is still alive ;
N. Destroying or seizing the civilian property of an adverse party unless such destruction or seizure be imperatively required by the necessities of war;
O. Declaring the abolition, suspension or prohibition of access to a court of law, with the intention of depriving the nationals of the hostile party from seeking their rights;
P. Compelling the nationals of the hostile party to take part in military operations directed against their own country, even if they were in the belligerent's service before the commencement of the war;
Q. Pillaging a town or place, even when taken by force;
R. Using poisons or poisoned weapons;
S. Using asphyxiating, poisonous or any other gases, as well as any other similar liquids, material s or devices;
T. Using 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
U. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
V. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity;
W. Utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations;
X. Intentionally directing attacks against buildings, material and medical units, means of transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with internationallaw;
y. Intentionally using starvation of civilians as a method of warfare by depriving them ofmaterial indispensable to their survival, including willfully impeding relief supplies as provided for under internationallaw; and
Z. Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Third: 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, injury, detention or any other cause:
A. Use of violence against life and persons, in particular killing of all kinds, mutilation, cruel treatment and torture;
B. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
C. Taking of hostages; and
D. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all recognized and indispensable judicial guarantees.
Fourth: Other serious violations of the laws and customs of war applicable in armed conflict not of an intemational character. [sic] within the established framework of intemationallaw, specifically any of the following acts:
A. Intentionally directing attacks against the civilian population as such or against civilian individual s not taking direct part in hostilities;
B. Intentionally directing attacks against buildings, materials, medical transportation units and means, and personnel using the distinctive emblems of the Geneva Conventions in conformity with intemationallaw;
C. Intentionally directing attacks against personnel, installations, materials, units, or vehicles used in humanitarian assistance or peacekeeping missions in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian targets under the intemational law of armed conflict;
D. Intentionally directing attacks against building s dedicated to religious, educational, artistic, scientific or charitable purposes, or against historie monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
E. Pillaging any town or place, even when taken over by force;
F. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity;
G. Conscripting or listing children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
H. 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;
I. Killing or wounding treacherously a combatant adversary;
J. Declaring that no person is still alive;
K. Subjecting persons who are under the power of the other party in 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, causing death to such person or persons, or seriously endangering their health; and
L. Destroying or seizing the property of an adversary, unless such destruction or seizure is imperatively demanded by the necessities of the conflict.
PART FOUR
Violations of Iraqi Laws
Article 14
The Tribunal shall have the power to prosecute persons who have committed the following crimes:
First: Interference in the affairs of the judiciary or attempting to influence its functioning.
Second: The wastage and squandering of national resources, pursuant to Article 2(g) of the Punishment of Conspirators against Public Safety and Corrupters of the System ofGovernance Law 7 of 1958.
Third: The abuse of position and the pursuit of policies that have almost led to the threat of war or the use of the Iraqi armed forces against an Arab country, in accordance with Article 1 of Law 7 of 1958.
Fourth: If the Tribunal finds that the special element of any of the crimes stipulated in Articles 11, 12 and 13 ofthis Law is missing, and establishes that the act involved constitutes a crime punishable under the Penal Code or any other penallaw at the time of its commission, the Tribunal shall be competent to hear the case.
SECTION THREE
Individual Criminal Responsibility
Article 15
First: A person who commits a crime within the jurisdiction of this Tribunal shall be individually responsible and liable for punishment in accordance with this Law.
Second: In accordance with this Law, and the provisions of the Penal Code, a person shall be criminally responsible ifhe [or she]:
A. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that [other] person is criminally responsible;
B. Orders, solicits or induces the commission of such a crime, which has occurred or has been attempted;
C. Por the purpose of facilitating the commission of such a crime, aids, abets or by any other means assists in its commission or its attempted commission, including providing the means for its commission;
D. Contributing by any other means, together with a group of persons with a common criminal intent, to the commission or attempted commission of such a crime provided such contribution is intentional and is either:
1. 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;
2. Made with the knowledge of the intention of the group to commit the crime;
E. In respect of the crime of genocide, directly and publicly incites others to
commit this crime;
F. Attempts to commit such a crime by taking action with the intention of committing it, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who takes an action that precludes the commission or completion of the crime shall not be liable for punishment, nor will he be liable for punishment under this Law if he completely and voluntarily abandons his criminal purpose.
Third: The official position of any accused person, whether as president of the State, chairman or member of the Revolution Command Council, prime minister or member of the cabinet, or a member of the leadership of the Ba'ath Party, shall not relieve such person of criminal responsibility nor mitigate punishment. No person is entitled to any immunity with respect to any of the crimes stipulated in Articles 11, 12, 13 and 14 of this Law.
Fourth: A superior is not relieved of the criminal responsibility for crimes committed by his subordinates, if he knew or had reason to know that the subordinate had committed, or was about to commit such acts, and the superior failed to take the necessary and reasonable measures to prevent such acts or to refer the matter to the competent authorities for investigation and prosecution.
Fifth: The fact that an accused person acted pursuant to an order of the Government or of his superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so
requires.
Sixth: Amnesty decrees issued prior to this Law coming into force do not apply to persons accused of committing any of the crimes stipulated in it.
SECTION FOUR
Rules of Procedure and Evidence
Article 16
The Tribunal shall follow the rules of procedure provided for in the Criminal Procedure Law 23 of 1971 and the Rules of Procedures and Evidence appended to this Law, of which it shall be considered an integral part.
SECTION FIVE
General Principies of Criminal Law
Article 17
First: In the absence of provisions in this Law and the rules made thereunder, the general principles of criminallaw contained in the following laws shall be applicable in connection with the prosecution and tri al of any accused persons:
A- Por the period 17/7/1968 to 14/12/1969, the Baghdadi Penal Code of 1919
B- Por the period 15/12/1969 to 1/5/2003, the Penal Code No. 111 of 1969, which was in force in1985 (Third Edition),
C- The Military Penal Code No. 13 of 1940, and the Code of Military Procedure No. 44 of 1941.
Second: In interpreting Articles 11, 12 and 13 of this Law, the Trial Chamber and Appeals Chamber may resort to the [relevant] decisions of international criminal tribunals.
Third: Grounds for exclusion of criminal responsibility under the Penal Code shall be implemented in a manner consistent with this Law and with internationallegal obligations concerning crimes within the jurisdiction of the Tribunal
Fourth: The crimes stipulated in Articles 11, 12, 13, and 14 of this Law shall not be subject to any statute of limitations.
SECTION SIX
Investigations and Indictment
Article 18
First: The Tribunal Investigative Judge shall initiate investigations on the basis of information obtained from any source, particularly from the police or any governmental or non-governmental source. The Investigative Judge shall assess the information received and decide whether there is sufficient basis to proceed
Second: The Investigative Judge shall have the power to question suspects, victims or their relatives, and witnesses, to collect evidence and to conduct on-site investigations. In carrying out his tasks, the Investigative Judge may, as appropriate, request the assistance of the relevant governmental authorities, who shall be required to provide full cooperation with the request
Third: Upon a determination that a prima facie case exists, the Investigative Judge shall prepare an indictment containing a concise statement of the facts and the crime with which the accused is charged under the Law, and shall refer the case to the Trial Chamber.
PART ONE
Rights of the Accused
Article 19
First: All persons shall be equal before the Tribunal.
Second:The accused shall be presumed innocent until pro ven guilty before the Tribunal in accordance with this law.
ThirdEvery accused shall be entitled to a public hearing, in accordance with the provisions of this law and the rules of procedure made hereunder.
Fourth:When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum
guarantees:
A. To be informed promptly and in detail of the content, nature and cause of the charge against him;
B. To have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing and to meet with him in private. The accused is entitled to have non-Iraqi legal representation so long as the principallawyer of such accused is Iraqi;
C. To be tried without undue delay;
D. To be tried in his presence, and to be assisted by counsel of his own choosing, or to be informed of his right to request legal assistance if he cannot afford it; and to have the right to seek such assistance that will allow him to appoint a lawyer without paying the fees;
E. To have the right to call and examine defence and prosecution witnesses, and to present any evidence in his defense in accordance with the law.
F. Not to be compelled to confess guilt, and to have the right to remain silent and not to testify without such silence being interpreted as evidence of guilt or innocence.
SECTION SEVEN
Trial Proceedings
Article 20
First: A person against whom an indictment has been issued shall be taken into custody, pursuant to an arrest order or warrant issued by the Tribunal Investigative Judge, and shall be immediately informed of the charges against him and transferred to the Tribunal.
Second: The Trial Chamber shall ensure a fair and expeditious trial conducted in accordance with this Law and the Rules of Procedure and Evidence annexed it, with full respect for the rights of the accused and due regard for the protection of victims or their relatives, and witnesses.
Third: The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected and guaranteed, ensure that the accused understands the charge or charges against him, and instruct the accused to enter a plea.
Fourth: The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with the Rules of Procedure and Evidence annexed to this Law. The decision to close the proceedings shall be exercised on a very limited basis.
Article 21
The Trial Chamber shall provide for the protection of victims or their relatives, and witnesses, in accordance with the Rules of Procedure and Evidence annexed to this Law, including the protection of the identity of the victims or their relatives, and witnesses.
Article 22
Relatives of victims and harmed persons who are Iraqi nationals may bring civil suits against the accused for damages resulting from acts which constitute crimes under this Law. The Tribunal shall have the power to adjudicate such claims in accordance with the Code of Criminal Procedure No 23 of 1971 and other relevant laws.
Article 23
First: The Trial Chamber shall pronounce judgments and impose sentences and penalties on persons convicted of crimes within the jurisdiction of the Court.
Second: The judgment shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in publico The judgment shall not be issued except on the basis of a decision to convict, to which the opinions of dissenting judges may be appended.
Article 24
First: The penalties imposed by the Tribunal shall be those prescribed by the Penal Code No. 111 of 1969, except for a sentence oflife imprisonment that means the remaining naturallife of the convicted person, taking into account the provisions stipulated in Artiele 17 of this Law.
Second: The penalties for the crimes under Artiele 14 of this Statute shall be those prescribed under Iraqi Penal Code and other penallaws.
Third: Taking into account paragraphs Fourth and Fifth of this artiele, the Trial Chambers shall determine the penalties for the crimes under Artieles 11, 12 and 13 of this Law
Fourth: A person convicted of crimes stipulated in the Penal Code shall be punished if committed:
A. Murder or rape as defined under the Penal Codeo E. Complicity in the commission of murder or rape.
Fifth: The penalty for any crimes under Artieles 11, 12, 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, guided by judicial precedents and relevant sentences issued by the intemational criminal tribunals.
Sixth: The Trial Chambers may order the forfeiture of assets, property or proceeds derived directly or indirectly from a crime, without prejudice to the rights of the bona fide third parties.
Seventh: In accordance with Article 307 of the Code of Criminal Procedure, the Trial Chambers shall have the authority to confiscate any material or goods prohibited by law regardless of whether the case has been discharged for any lawful reason.
SECTION EIGHT
Appeals Proceedings
PART ONE
Cassation
Article 25
First: The convicted person or the Prosecutor may contest the verdicts and decisions by appealing in cassation to the Appeals Chamber on the following grounds:
a. If the verdict is in contradiction with the law or there is an error in interpreting it.
b. An error of procedure.
c. An error of material fact which has occasioned a miscarriage of justice.
Second: The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers or the Investigative Judge
Third: Where the Appeals Chamber reverses a verdict of acquittal or release issued by the Trial Chamber or the Investigative Judge, the case shall be referred back to the Trial Chamber for retrial or to the Investigative Judge for implementation of its decision.
Fourth: The period allowed for the lodging of appeals shall be in accordance with the provisions of the Code of Criminal Procedure No. 23 of 1971, unless otherwise provided foro
PART TWO
Retrial
Article 26
First: Where new findings or facts have been discovered which were not known at the time of the proceedings before the Trial Chamber or the Appeals Chamber and which could have been a decisive factor in reaching the verdict, the convicted person or the Prosecutor may submit to the Tribunal an application for a retrial
Second: The Tribunal shall reject the application if it considers it to be unfounded. If the Tribunal determines that the application has merit , it may, after hearing the parties, and with a view to amending the judgment:
a. Send the case back to the original Trial Chamber to review it; or
b. Send the case to another Trial Chamber; or
c. The Appeals Chamber reviews the case.
SECTION NINE
Enforcement of Sentences
Article 27
First: Sentences shall be carried out in accordance with the law.
Second: No authority, including the President of the Republic, may grant a pardon or reduce the penalties issued by this Tribunal. Penalties shall be enforceable within thirty days of the sentence or decision reaching finality.
SECTION TEN
General and Final Provisions
Article 28
Investigative judges, Trial Chamber judges, members of the Prosecutions Department, Director of the Administration Department and Tribunal personnel shall be Iraqi nationals, taking into account Article 4 (Third) of this Law.
Article 29
First: The Tribunal and the national courts shall have concurrent jurisdiction to prosecute persons accused of the crimes prescribed in Article 14 of this Statute.
Second: The Tribunal shall have primacy over all other Iraqi courts with respect to its jurisdiction over the crimes prescribed in Articles 11, 12 and 13 of this Law.
Third: At any stage of the proceedings, the Tribunal may demand of any other court to transfer any case being tried by it involving any crimes prescribed in Articles 11, 12, 13 and 14 of this Law, and such court shall be required to transfer such case on demand.
Fourth: At any stage of the proceedings, the Tribunal may demand of any other court to transfer any case being tried by it involving any crimes prescribed in Articles 13, 14, 15 and 16 of this Law, and such court shall be required to transfer such case upon demand
Article 30
First: No person shall be tried before any other Iraqi court for crimes for which he has already been tried by the Tribunal, in accordance with Articles 300 and 301 of the Code of Criminal Procedure.
Second: A person who has been tried by any Iraqi court for a crime or crimes within the jurisdiction of the Tribunal may not be subsequently tried by the Tribunal unless the Tribunal determines that the previous court proceedings were not impartial or independent, or were designed to shield the accused from criminal responsibility. When taking a decision to order a retrial, one of the conditions contained in Article 196 of the Code ofCivil Procedure and the requirements of Article 303 of the Code of Criminal Procedure must be mer .
Third: In determining the penalty to be imposed on a person convicted of a crime under this Law, the Tribunal shall take into account the time served of any penalty imposed by an Iraqi court on the same person for the same crime.
Article 31
First: The President of the Tribunal, the Judges, the Investigation Judges, the Prosecutors, the Director of the Administration Department and the Tribunal staff shall have immunity from civil suits with respect to their official duties.
Second: Other persons, including the accused, shall be accorded such treatment as is necessary for the proper functioning of the Tribunal.
Article 32
Arabic shall be the officiallanguage of the Tribunal.
Article 33
No person belonging to the Ba'ath Party may be appointed as a Judge, Investigative Judge, Prosecutor, employee or any of the Tribunal’ s staff .
Article 34
The expenses of the Tribunal shall be borne by the regular budget of the State
Article 35
The President of the Tribunal shall prepare an annual report on the Tribunal’s work for submission to the Council of Ministers.
Article 36
The provisions of the Civil Service Law No. 24 of 1960, Personnel Law Nº 25 of 1960, State And Socialist Sector Employees Disciplinary Law No 14 of 1991 and Civil Service Retirement Law Nº 33 of 1966 shall apply to the Tribunal's employees other than the judges and members of Public Prosecution.
Article 37
The Statute of the Iraqi Special Tribunal for Crimes Against Humanity, Law Nº 1 of 2003, and the Rules of Procedure issued under Article 16 thereof shall be abolished with effect from the date of the coming into force of this Law
Article 38
All decisions and rules of procedure issued under Law Nº 1 of 2003 are considered correct and in accordance with the law '.
Article 39
In coordination with the President of the Tribunal, the Council of Ministers shall issue instructions to facilitate the implementation of this Law.
Article 40
This Law shall come into force on the date of its publication in the Official Gazette.
Jalal Talabani, President of the Republic
Adil Abd Al-Mahdi, Vice President of the Republic
Al-Shaikh Ghazi Ajil Al-Yawir, Vice President of the Republic
JUSTIFYING REASONS
To expose the crimes committed in Iraq from 17 July 1968 until1 May 2005 against the Iraqi people and the peoples of the region and the subsequent brutal massacres:
To lay down the rules and punishments to condemn after a fair trial the perpetrators of such crimes for waging wars, genocide, and crimes against humanity; To establish an national Supreme Iraqi Criminal Tribunal made up of Iraqi judges with high experience, competence and integrity, with the power to try these criminal’s
To reveal the truth, and the agonies and injustice caused by the perpetrators of such crimes;
To protect the rights of many Iraqis, redress injustices committed against them, and demonstrate heaven’s justice as the Almighty God wants it to be.
This law has been promulgated.
Rules of Procedure and Gathering of Evidence With Regard to the Supreme Iraqi Criminal Tribunal
Laws
The Supreme Iraqi Criminal Tribunal
Laws
The Supreme Iraqi Criminal Tribunal
RULES OF PROCEDURE AND GATHERING OF EVIDENCE
Pursuant to the provisions of Article (16), law number (10) of 2005, which was approved by Article 48 ofthe Transitional Administrative Law (TAL), it was decided to promulgate the following Rules of Procedures and Evidence:
SECTION ONE
Definitions and General Provisions
Rule 1: Definitions
In these Rules, unless the context otherwise requires, the following terms shall have the meanings ascribed to them below:
1. The Law: Law ofthe Supreme Iraqi Criminal Tribunal (SICT), number (10) of 2005
2. Judge: the Appellate Judge, the Trial Judge or the Investigative Judge
3. President: The President ofthe Supreme Iraqi Criminal Tribunal
4. Appellate Judge: Any judge of the Appeals Chamber
S. Presiding Judge: The judge presiding over the Trial Chamber, in accordance with the Law.
6. ChiefInvestigative Judge: the Tribunal’s ChiefInvestigative Judge
7. Investigative Judge: the designatedjudge
8. Prosecutions Department: The Prosecutions Department assigned the Tribunal
9. ChiefProsecutor: The ChiefProsecutor as referred to in the Law.
10. Public prosecutor: the Prosecutor assigned to the Tribunal.
11. Non-Iraqijudges: Those judges assigned to the Tribunal in accordance with this Law.
12. Experts: Those non-Iraqi nationals referred to in the Law.
13. Victim: A person against whom a crime over which the SICT has jurisdiction has allegedly or has been found to have been committed.
14. Suspect: A person conceming whom the Investigative Judge possesses reliable information which brings to believe that he may have committed a crime over which the SICT has jurisdiction.
15. Transaction: A number of acts or abstentions, whether occurring as one event or as a number of events, at the same or different locations, and being part of a common plan or strategy constituting a crime
16. Investigation: All acts and activities undertaken pursuant to the Law and these Rules for the collection of information and evidence, whether before or after issuing an indictment.
Rule 2: Procedures taken outside the Seat of the SICT
The Investigative Chamber or Investigative Judge may exercise part of its function outside Iraq, if so authorized by the President and if necessary. In so doing, the Chamber may resort to audio or video-link technology, email and other electronic devices, and take whatever measures it deems necessary for the implementation of this clause.
Rule 3: Non-compliance with the Rules
First: The litigant shall raise his requests on the grounds ofnon-compliance with the Law or these Rules to the Tribunal at the earliest opportunity. The Tribunal shall respond to such requests if it finds that the allegations and requests are proven.
Second: The response as per this Rule shall be determined as the SICT deems appropriate to ensure consistency with the fundamental principles of justice.
Rule 4: Time Limits
First: Unless otherwise mentioned in the Law or these Rules, the duration for any procedure shall follow the general rules as set forth in Iraqi laws.
Second: Unless otherwise ordered by the Trial Chamber, any plea to a request shall be filed within (14) days ofthe date of service of such plea on the requesting party. The response to the plea shall be filed within seven days of the date of service of such response.
SECTION TWO
Cooperation and Judicial Assistance
Rule 5: Pleas and Orders
1. If an Investigative Judge is convinced that a government official or other individual has failed to comply with a request made in accordance with Article 18 ofthe SICT Law, he may take legal measures against him and refer the case to the SICT in accordance with the clauses of the Code of Criminal Procedure.
SECTION THREE
Organizational Structure of the SICT
PART ONE
The oath
Rule 6: Texts of the oath
First: The Judges
All judges shall take the following oath before the President of the Federal Judicial Council as follows: "I swear by God to judge among the people with justice and to apply the law in all faithfulness. "
Second: Public Prosecutors
Before beginning their mission, public prosecutors shall take the following oath before the President of the Supreme Judicial Council: "I swear by God to perform the functions of my office and to apply the law in all faithfulness and loyalty."
Third: Judicial Investigators
Before beginning their mission, judicial investigators shall take the following oath before the Appeals Chamber: "I swear by God to perform the functions of my office with justice and to apply the law in all faithfulness."
Fourth: The minutes ofthe oath-taking ceremony shall be preserved in the Tribunal’s records.
PART TWO
The Judges
Rule 7:
First: Each Judge shall act with complete independence and shall not be subject or respond to instructions or directions issued by the Presidency of the Republic, the Council of Ministers, or any other government body or other party during his judicial mission.
Second: During the investigation, trial or appeal, the Judges must perform their duties with complete impartiality.
Third: A Judge must examine any case in which he has a personal interest or related concem or in which he has or had any personal association which might affect his impartiality.
Fourth: A Judge must withdraw from any case in which his impartiality or independence might reasonably be in doubt.
Fifth: The President must appoint another Trial Judge to replace the withdrawn Trial Judge when necessary. The ChiefInvestigative Judge must appoint another Investigative Judge to replace the withdrawn Investigative Judge, when necessary.
Rule 8:
Any litigant may submit a request to the Appeals Chamber, which is supported by evidence considered as legal, in which he feels that the Judge has lost his judicial capacity. He shall receive an answer within three days.
Rule 9: Absence and Termination of Service of Judges
First: Judges ofthe SICT shall fulfill their duties from the time they take their oath until such time as they are disqualified from holding office at the SICT or replaced by another Judge due to an expiration of the Judge's term of office.
Second: A Judge who decides to resign shall give notice ofhis resignation in writing to the President, who shall transmit this request to the Cabinet.
Third: If a Trial Judge, for any reason, is unable to continue sitting a case, the President must, as deemed necessary, appoint another Judge to this case.
Rule 10: Seniority
First: The seniority of Judges appointed on different dates shall take precedence according to the dates of their appointment. The seniority of Judges appointed on the same date shall take precedence according to their date of birth.
Second: In case of re-appointment, the total period of service as a Judge of the SICT shall be taken into account to assess his seniority.
Third: All Judges are considered equal in the exercise of their judicial functions, regardless of dates of appointment, age, duration of service, or nationality.
PART THREE
The Presidency
Rule 11: The Vice-President
The position of Vice-President shall be held by the most senior Judge among the members of the Appeals Chamber.
Rule 12: Temporary Solutions to Replace the President or Vice-President
Ifneither the President or the Vice-President are able to fulfill the functions ofthe Presidency, these shall be assumed by the next senior Judge, until such time as the President or Vice-President are able to resume their duties or a replacement President is elected.
PART FOUR
The Director of the Administration Department
Rule 13: The Administration Department Staff
The Director of the Administration Department shall set up the yearly staff as adequate for the efficient functioning of the Administration Department. This staff is subj ect to the discussion and approval ofthe Tribunal Plenary Body.
Rule 14: Functions of the Director of the Administration Department
First: The Director of the Administration Department shall provide administrative assistance and services to the SICT Trial Chambers, its plenary meetings, the Judges and the Public Prosecutors as well as the Defense Office in fulfilling their functions. Under the authority of the President, he shall be responsible for the administration and servicing of the Tribunal.
Second: While fulfilling his functions, the Director of the Administration Department shall present oral or written reports to the Tribunal's Chambers, related to any issue arising in the context of a particular case or that could affect the execution of these functions, including taking measures related to executing judicial decisions. He shall moreover take the necessary measures to notify the litigants when necessary.
Third: The Director of the Administration Department is responsible for the conditions of detention of suspects and accused persons. The Director, mindful of the need to ensure respect of human rights and fundamental freedoms (particularly the presumption of innocence until proven guilty), shall in consultation with the President, adopt or amend the instructions necessary to arrest persons, pending trial or appeal, or otherwise arrest persons as per other arrest proceedings.
Rule 15: Victims and Witnesses Unit
First: The Director of the Administration Department shall set up a Victims and Witnesses Unit, which shall fulfill a specific function in accordance with the Law and these Rules, and pursuant to the orders of the Chief Investigative Judge and the Chief Prosecutor.
The function of this unit is related to all the witnesses and victims who appear before the SICT and all other individuals who are at risk on account ofthe testimony they give. Sorne of the functions that this unit shall carry out towards all these people, in accordance with their particular needs and circumstances, are:
a- Present recommendations to the SICT on the adoption ofprotective and security measures for them;
b- Provide them with sufficient safety measures and security arrangements, and develop long or short term plans for their protection and support;
c- Make sure that they receive adequate support, counseling, medical assistance, physical and psychological rehabilitation, especially in cases of rape and sexual assault.
Second: The Unit personnel shall include experts in external adversity (or injury), including adversity related to crimes of sexual violence. When necessary, the Unit shall cooperate with non-governmental and intergovernmental agencies.
Rule 16: Minutes of the Plenary Meetings
The Director of the Administration Department and the administrative staff shall be responsible for taking the minutes of the Plenary Meetings of the SICT and the instructions of the President.
PART FIVE
The Chief Prosecutor
Rule 17: Appointment of the Chief Prosecutor and his Deputy
First: Pursuant to Article 9 (Fourth) ofthe Law, the ChiefProsecutor and his Deputy shall be appointed for a one-year, renewable termo
Second: If the Chief Prosecutor does not fulfill his work, resigns, or is removed from office before the expiration of his term, the other appointed prosecutors shall select a replacement from among their number for the remainder ofthe term, as per Article 9 (Fourth) ofthe Law.
PART SIX
The Investigative Judges
Rule 18: Appointment of the Chief Investigative Judge
First: The ChiefInvestigative Judge and his Deputy shall be elected by a majority ofvotes of the Investigative Judges. In the event that an equal number ofvotes are cast for the leading candidates, the candidate who has seniority shall become the Chief Investigative Judge, as per Rule 10.
Second: The ChiefInvestigative Judge and his Deputy shall be elected for a one-year, renewable termo
Third: If the Chief Investigative Judge does not fulfill his work, resigns, or is removed from office before the expiration ofhis term, the Investigative Judges shall appoint from among their number a successor for the remainder of the term.
Rule 19: Functions of the Chief Investigative Judge
First: The Chief Investigative Judge shall coordinate the work of the Investigative Judges and carry out all other functions conferred on him as per the Law and these Rules.
Second: The ChiefInvestigative Judge may, after consultation with other Investigative Judges, issue work instructions consistent with the Law and these Rules.
Rule 20: Functions of the Deputy Chief Investigative Judge
The Deputy Chief Investigative Judge shall carry out the functions of the Chief Investigative Judge, in case the latter is absent or unable to work.
SECTION FOUR
Non-Iraqi Advisors/Experts
Rule 21: Functions of the Non-Iragi Advisors and Experts
First: The Non-Iraqi advisors or experts, appointed in accordance with the Law, shall be assigned to the Prosecutions Department, Investigative Judges, the Trial Chambers and the Appeals Chamber, with each ofthese being considered as a separate functional entity. Anyone assigned as a non-Iraqi advisor or expert to one functional unit ofthe SICT may not concurrently act as an advisor to another functional unit of this Tribunal. However, a non¬Iraqi advisor or expert may be reassigned from one functional unit to another, upon the approval ofthe President. In the event ofa reassignment, the non-Iraqi advisor or expert may not participate to any degree in providing advice and expertise on a case he was previously associated with, prior to his reassignment.
Second: Upon approval of the President, the Director of the Administration Department shall provide non-Iraqi advisors or experts with all the necessary means and facilities for them to fulfill their functions.
Third: The non-Iraqi advisors or experts appointed to the Defense Office, as per Rule 30 of the present Rules, shall offer assistance in the administration of the Defense Office, including providing advice on any proposed amendments to these Rules or to any rules of the Code of Professional Conduct. They may not take any action that would stem from an attomey-client relationship with a suspect or accused, including representing a suspect or accused person in any proceedings before the SICT.
Fourth: The non-Iraqi advisor or expert assigned to the Investigative Judges, a Trial Chamber or the Appeals Chamber shall provide impartial, confidential and non-binding expert advice and recommendations. A non-Iraqi advisor or expert assigned to the Prosecutions Department or the Defense Office shall provide impartial, confidential and non-binding advice and recommendations.
SECTION FIVE
Investigations and Rights of the Accused
PART ONE
Initiation of an Investigation
Rule 22: Initiation of the Investigation
First: Investigative proceedings are initiated by an oral or written complaint raised to the Investigative Judge, pursuant to Article 18 of this Law.
Second: Iraqi ministers, govemmental bodies, investigative officers, intemational organizations, or any other agency or organization may raise a complaint to the Investigation Judge ofthe SICT.
PART TWO
Investigations
Rule 23: Conduct of Investigations
First: In the conduct of an investigation, the Investigative Judge shall:
a. Review witness statements, summon and question suspects, question victims and witnesses and record their statements, collect evidence and conduct on¬site investigations;
b. Take all measures deemed necessary for the investigation, including special measures to ensure the safety of secret witnesses and sources;
c. Seek, with the concurrence of the Chief Investigative Judge, the assistance of any govemmental authority or intemational body related to the issue, including the Intemational Criminal Police Organization (INTERPOL);
d. Present a deferral request, as per the law.
Second: An Investigative Judge shall gather both [sic] exculpatory evidence. The Prosecution Department may view all the evidence gathered by the Investigative Judge during his investigation.
Third: The Investigative Judge shall question the witness and victim away from the public, and pursuant to the regulations of the amended Penal Prosecutions Code 23 of 1971. However, this Rule does not prohibit a suspect's defense attorney from meeting individually with the secret victims and witnesses. The suspect or the defense attorney may provide evidence to an Investigative Judge and any of them may request the Investigative Judge to conduct any questioning of the witness that is deemed necessary and crucial.
Rule 24: Provisional Measures
First: The Investigative Judge may order any governmental authority to carry out the following, if it deems it adequate:
a. To arrest a suspect and place him under temporary detention as per the IST Law and these Rules, and other provisions of the Iraqi law as may be relevant;
b. To seize all material evidence;
c. To take adequate measures to prevent the escape of a suspect or an accused person, the harming or intimidation of a victim or witness, or the destruction or loss of evidence.
The Investigative Judge shall indicate in this written order the grounds upon which he based himself and, unless he simply wishes to question the suspect, he shall mention in the order the primary charge, with a summary of its contents upon which he has relied. He shall further specify the initial time limit for the temporary detention of the suspect.
If the suspect is notified of this order, he must be told of his rights as specified in this Rule, subsequently, given as soon as possible a copy ofthe Investigative Judge’s order.
Second: In deciding whether to issue such order, the Investigative Judge shall consider the following:
a. Whether there is a reliable body of evidence that brings to believe that the suspect may have committed a crime that falls within the jurisdiction of the SICT;
b. Whether temporary detention is a necessary measure to prevent the escape of the suspect, or to prevent the harming or intimidation of the victim or the witness, or the destruction or loss of evidence;
c. Whether temporary detention is necessary for the effective conduct of the investigation.
Third: The suspect shall be released if:
The Investigative Judge or the SICT issues a subsequent release order.
Rule 25: Orders of Temporary Detention
First:
1. The accused cannot be placed under temporary detention for a period exceeding 90 days, starting from the day following that in which he is consigned to any detention unit affiliated to the SICT. This detention period may be extended for an additional 30-day period, by further order of the Designated Judge. This term is renewable; however the total period must not exceed 180 days.
2. The l80-day period may only be extended by the Designated Judge following approval of the President.
3. The decisions mentioned in paragraphs (first - second) may be appealed.
Second: The provisions of Rules 35 and 36 ofthese Rules shall apply to the execution ofthe accused person' s temporary detention.
Third: The accused must be brought, without delay following his temporary detention, before the Investigative Judge who issued the initial arrest order, or another Investigative Judge appointed by the Chief Investigative Judge. The Investigative Judge shall establish that the right of the accused to counsel is respected. The accused is entitled, at his own expense, to a defense lawyer qualified under Rule 29 of these Rules. If the accused asks the principal lawyer to provide him with a defense lawyer, the Investigative Judge shall inquire into the accused’s ability to pay for the lawyer’s fees, and instruct the Defense Office to ensure such lawyer. The Defense Office shall charge the accused for any legal services provided unless the Trial Judge finds that the accused is unable to payo
Fourth: Subject to Rule 59 ofthese Rules, the accused may be detained until the conclusion ofhis trial if such arrest is deemed necessary to ensure his appearance before the tribunal, or to protect any victim or witness, or to prevent the destruction or los s of evidence.
Rule 26: Preservation of Information and Evidence
First: The Investigative Judge, Public Prosecutor or Investigator shall send a copy of information and material evidence to the unit responsible for collecting evidence and information affiliated to the Tribunal. This unit shall preserve this material.
Second: The Investigative Judge shall prepare an account of all the material gathered, including documents, books, papers, and other objects. He shall give a copy ofthis account to the individual from whom the material was seized. Material that is of no evidentiary value shall be inventoried and safeguarded until such time that it can be returned.
Third: In a case the Trial Chamber requests documents from the Information Unit, the latter shall ensure a secured place for its transportation and storage.
Rule 27: Rights of the Accused during the Investigative Judge’s Ouestioning
First: The accused questioned by the Investigative Judge is entitled to rights, which the Investigative Judge shall notify him of prior to the questioning, in the language the accused speaks and understands. These rights are:
a. The right to assistance of his own choosing, including the legal assistance provided by the Defense Office ifhe cannot afford to pay for the assistance;
b. The right to an interpreter' s services, free-of-charge, if he cannot understand or speak the language used during the questioning;
c. The right to remain silent. In this regard, the suspect or accused shall be cautioned that anything he says may be used against him in court.
Second: The accused may waive his right to legal assistance during the questioning, provided the Investigative Judge establishes that the waiver is made in allliberty and awareness.
Third: If the accused practices his right to legal assistance, the Investigative Judge shall not question him without the presence of the lawyer, if the suspect does not voluntarily waive this right immediately after, in full knowledge of his right to the presence of the lawyer. In case of a waiver, if the suspect subsequently expresses the wish for the presence of a lawyer, the questioning shall cease only to be resumed in presence of the lawyer.
Rule 28: The Investigative Judge’s Recording of the Ouestioning
If the Investigative Judge questions the accused, he may record this questioning by audio or visual recording, or by a recording clerk.
PART THREE
The Defense Counsel
Rule 29: Appointment of the lawyer
First: The lawyer appointed by the accused shall present his power of attorney to the designated judge at the earliest opportunity. The latter shall verify this lawyer' s qualification, as per the Iraqi Law.
Second: Pursuant to Articles 18 (Third) and 19 (Fourth) ofthe SICT Law, the accused may retain one or more non-Iraqi lawyers.
Third: In carrying out his functions, the lawyer shall adhere to the relevant provisions of the Law, these Rules and any other rules or regulations adopted by the SICT. Moreover, he shall adhere to any codes of practice and ethics goveming his profession.
Rule 30: The Defense Office
First: The Director of the Administration Department shall establish a Defense Office for the purpose of ensuring the rights of accused. The Defense Office shall be headed by a director chosen from among the lawyers, for a three-year, renewable termo The Director may remove the lawyer heading the office from his position for a valid reason, following a proper investigation and the approval of the President.
Second: In accordance with the Law and these Rules, the Defense Office shall provide counsel and assistance to each of the following:
a. The accused placed in temporary detention in accordance with Rule 22 of these Rules;
b. The accused who is being questioned by the Investigative Judge in accordance with Rule 27, even if the accused is not in detention;
C. The accused persons standing before the Tribunal.
Third: Sorne of the main functions of the Defense Office include:
a. Providing legal assistance to any accused unable to afford the service, or as ordered by the Tribunal;
b. To charge or appoint a lawyer that is not located far from the detention unit and the seat of the Tribunal, to present himself to the detention unit when he is charged with providing legal assistance to the suspect or accused;
c. Providing the required facilities to enable the lawyer in preparing his defense.
Fourth: The head ofthe Defense Office shall, in view ofproviding an effective defense for the accused, assign a highly qualified criminal defense lawyer.
Fifth: The demands and defense of the client, the accused, shall be presented by he lawyer with high precision.
Sixth:
a. Pursuant to Rule 21(Third) ofthese Rules, the Director may, in agreement with the head ofthe Defense Office, contract with non-Iraqi experts and advisors to provide assistance and expertise to the Defense Office.
b. The non-Iraqi advisors or experts shall be selected for their experience in Criminal Law in their countries, for their extensive knowledge of or expertise in intemational war crime trials, and for their integrity and high moral character.
Rule 31: Misconduct of Lawyer
First: The judge or the Trial Chamber may take legal measures against the lawyer if, in his/its opinion, the latter’s misconduct has become offensive and harmful, or demeans the dignity of the SICT, or obstructs the proceedings.
Second: In case of a lawyer's misconduct, the judge or Trial Chamber may, upon the consent of the President, communicate to the body regulating the professional conduct in this Lawyer’s country of such conduct.
SECTION SIX
Proceedings of the Investigation Judge
PART ONE
Multiple Crimes
Rule 32: Multiple Crimes
a. If a person is accused of multiple crimes, measures shall be taken against the accused in accordance with the provisions of Article 132 ofthe Iraqi Code of Criminal Procedure Nº 23 of 1971.
b. If a person is accused of more than one crime, he can be referred to the SICT to one case if these crimes are punishable by one article of the same law.
Rule 33: Non-Disclosure ofthe Indictment
First: The designated judge may order the non-disclosure to the public of any documents or information until further order, in exceptional circumstances and to serve the interest of justice.
Second: The Trial Chamber or designated judge may issue an order for the non-disclosure, in total or part, of any particular document or information, if necessary or is convinced that issuing such an order is required to give effect to the provisions of these Rules or to preserve the confidentiality of information obtained by the Investigative Judge or the Chief Investigative Judge, or otherwise serves the interests of justice.
PART TWO
Orders and Warrants
Rule 34: General Provisions
First: First based upon the request of any party or plaintiff, the Investigative Judge shall issue such orders, summonses, subpoenas, and warrants as may be necessary in the interests of justice for the purposes of the investigation.
Second: First based upon the request of any party or plaintiff, the designated judge or the Trial Chamber may issue orders, summonses, subpoenas and warrants as may be necessary for the purpose of summoning the accused or the conduct of the trial.
Rule 35: Enforcement of Arrest Warrants
First: Pursuant to Rule 24 of these Rules, an arrest warrant shall be signed by an Investigative Judge and shall bear the seal ofthe SICT. It shall be accompanied by an account ofthe criminal charges brought against the accused, the legal text or the bill of indictment, and a statement of the rights of the suspect or the accused. The Director of the Administration Department shall communicate to the relevant Iraqi authorities three sets of certified copies of these documents.
Second: Taking into account Rule 24 of these Rules, the Director of the Administration Department shall request from the aforementioned authorities the following:
a. To arrest ofthe suspect or the accused and transfer him to the Tribunal;
b. To inform the suspect of the accused of the set of aforementioned documents related to the suspect or accused, and to read those documents that need to be read to the accused in the language he understands, and inform him of his rights in that language;
c. To retum a copy ofthe documents with proof of service to the SICT.
Rule 36: Non-Enforcement of Arrest Warrants
First: When the relevant Iraqi authorities to whom the arrest warrant or orders referred to under Rule 24 or others, are unable to enforce the arrest warrant, they shall present a report to the Director ofthe Administration Department stating the reasons for their non- enforcement.
Second: Ifwithin a reasonable period after the arrest warrant or orders have been communicated to the relevant Iraqi authorities, no report has been presented about the action taken in this regard, this shall be considered as a non-enforcement ofthe arrest warrant or of the orders. The Presiding Judge of a Trial Chamber shall, upon his own initiative or at the request of an Investigative Judge, notify the President of this non-enforcement so that appropriate action can be taken.
Rule 37: Procedure upon Confession
First: If the accused pleads guilty for the charge brought against him or requests to change his plea to guilty, the Tribunal shall need to establish that:
a. The accused person makes his plea of his own free choice and will;
b. The plea is unequivocal and there is a sufficient factual ground to establish the accused's responsibility for the crime.
Second: Thereafter, the Trial Chamber may find him guilty if the conditions referred to in paragraph (First) ofthis clause are met, and the Trial Chamber is convinced of criminating the accused ofthe action to which he pled guilty. Thereupon, the Trial Chamber shall instruct of the end of the trial and set the date for pronouncing the judgment.
Third:
a. If the Trial Chamber is not convinced ofany ofthe factors in paragraph (First) of this clause, or if, under applicable law, the criminal act is punishable by death, then the Trial Chamber shall enter a not guilty plea and pursue the trial.
b. In case the Trial Chamber accepts the accused person’s 'not guilty' plea for the act punishable by death, and ifthis plea is pursuant to Rule 38 ofthe present Rules, and if the Chief Prosecutor has recommended a sentence that is less severe than the death penalty, then the Trial Chamber must close the trial and issue the sentence.
Rule 8[sic]: Agreement on Confession
The offer for pardon for those accused of ambiguous crimes shall be made in accordance with Article 129 ofthe Code of Criminal Procedure Nº 23 of 1971.
Rule 39: Detention and BaH
The detention and bail shall be in accordance with the Code of Criminal Procedure Nº 23 of 1971, provided the place of detention is located within the detention facilities ofthe Tribunal.
PART THREE
Presenting Evidence
Rule 40: The Prosecutor’s Disclosure of the Material Constituents of the Crime
First: Pursuant to Rules 33 and 51 of the present Rules, the Public Prosecutor shall:
a. Disclose to the defense lawyer all the witnesses' depositions and evidence, 45 days prior to the commencement of trial. F or purposes of this sub-Rule, the depositions ofwitnesses shall be in written form and signed by the accused, or the witnesses shall make their statements, which shall be read, during the trial. The Trial Chamber shall order that additional copies of the witnesses' depositions be made available to the Defense within a prescribed time.
b. Upon the request of the Defense, and pursuant to Rule 42 of the present Rules, the defense lawyer is allowed to examine the books, documents and photographs and obtain them in preparation for his Defense. He may also examine confidential materials peculiarities, books, documents, photographs and tangible material, or whatever he finds in the possession of the accused, and which is intended to be submitted as evidence to the Trial Chamber.
Second: During the investigation, and during the prosecutor’s examination of documents and information, he could discover other issues that come against the public interest or that can affect the national security interests of any State. In such case, the prosecutor shall ask the Chief Investigative Judge to entrust a designated Judge with the investigation in secret, and whose identity shall not be disclosed, as an exception to sub-Rule (a) ofthis Rule.
When taking such a procedure, the prosecutor shall provide the information and material that is kept as confidential.
Rule 41: Reciprocal Disclosure of Evidence
First: Regarding reciprocal disclosure of evidence, the following shall be done:
a. At least 45 days prior to the commencement of trial, the prosecutor shall notify the defense lawyer ofthe names ofwitnesses whose statements shall be heard to establish the responsibility of the act imputed to the accused.
b. The defense lawyer shall notify the prosecutor of the names of the witnesses who shall be called in for the rebuttal ofthe charge, ofwhich the prosecutor has received notice in accordance with sub-Rule (Third) ( a) of this Rule, or any charge that appears in the case during the period referred to in clause (3) (e) of this paragraph;
c. Fifteen days prior to the commencement of the trial, the defense lawyer shall tell, notify or inform the prosecutor the following:
1. Present the evidence that establishes that the accused was not present at the scene of the crime, and specify the place at which the accused was at the time of the crime, with the names and addresses of corroborating witnesses and any other evidence upon which the accused relies to establish his statement in such case;
2. Any special defense, including restraints on mental responsibility, with the names and addresses of witnesses and any other evidence upon which the accused relies to establish this special defense;
3. Stating or proving the victim's consent to the sexual assault perpetrated by the accused against her;
4. Hand the prosecutor any books, documents, photographs or tangible evidence which the court decides that the prosecutor needs to examine or copy.
d. At least 15 days prior to the commencement ofthe trial, the defense lawyer shall notify the prosecutor of the names of the defense witnesses who shall make a deposition.
Second: Failure ofthe defense lawyer to provide such information as per this Rule shall not preclude the accused from presenting his defense, and the issue of relying upon it shall be at the discretion of the Tribunal.
Third: In order to assist the prosecutor in fulfilling his obligations referred to in these Rules, the defense lawyer shall, at least 15 days prior to trial, provide the prosecutor with the Defense plea, which must include:
a. The nature of the charge ascribed to the accused in general;
b. An indication to the issues for which the Prosecutor was asked to take measures;
c. For every issue in the case, for which the Prosecutor took a measure, there should be a mention as to the reason for this measure.
Fourth: If either party discovers additional evidence or information or material which should have been produced earlier pursuant to these Rules, that party shall immediately notify the other party and the Tribunal of the existence of such additional evidence, information or material.
Rule 42: Disclosure of Exculpatory Evidence
First: In extraordinary circumstances, and based on a request by either party that serves the cause of justice, the Trial Chamber or the Chief Investigative Judge - depending on the situation - may delegate one of the court members or an Investigative Judge to hear a witness' testimony and take a deposition of it.
Second: The Prosecutor shall disclose to the defense lawyer the probative evidence he has available, which serves to exculpate the accused of the imputed crime or alleviate it, or that may affect the credibility of a prosecution witness or the validity of prosecution evidence. The Prosecutor shall continuously disclose the motives for penalties.
Rule 43: Matters not Subject to Disclosure
First: Taking into account the provisions of Rules 40 and 41 of the present Rules, reports, memoranda, and other internal documents put forward by one of the parties, and which help, or have any connection with the investigation or the preparation ofthe case, are not subject to disclosure or notification, in accordance with the aforementioned provisions.
Second: If the Tribunal is in possession of information presented to it on a confidential basis, and which it accepted on the grounds that it is confidential, and which was used solely for the purpose of generating new evidence, this information and its origin - notwithstanding Rule 42 of the present Rules - shall not be disclosed by the Tribunal without the consent of the person or party that provided this information.
Third: Upon the written consent of the person or party that provided information pursuant to sub-Rule (Second) ofthe present Rule, the Prosecutor shall chose any ofthis information as evidence in a testimony or present a document, or any other material so afforded, provided the accused receives prior notice ifthis, in accordance with Rule 42 ofthe present Rules. The Trial Chamber may not order either party to produce additional evidence obtained from a person or party, and may rule against presenting such additional information or using a person or a party's representative as witness or again, it may on the contrary, order their attendance.
Fourth: The right of the accused to disclaim the evidence presented in his case remains unaffected and is subject only to the precisions mentioned in sub-Rules (Third) and (Fourth) of the present Rule.
PART FOUR
Depositions
Rule 44: Depositions
At the request of either party with the view of serving justice, the Tribunal shall issue an order that a deposition be recorded outside the courtroom. To this end, it shall delegate one of its judges or an Investigative Judge to preside over the written deposition and prepare a record about this, taking into account the provisions of Rule 28 ofthe present Rules,
SECTION SEVEN
Trial Proceedings
PART ONE
Judgments
Rule 45: Trial Proceedings
The trial proceedings shall be in accordance with the Code of Criminal Procedure Nº 23 of 1971, and with the present Rules.
Rule 46: Intervenors in the lawsuit
The Trial Chamber may invite any organization or person to provide his expertise on any issue, if the Tribunal believes that such expertise can help it reach a fair decision in the case.
Rule 47: Medical Examination of the Accused
The Trial Chamber, at its own initiative or upon one ofthe parties' request, may order that a psychiatric or psychological examination of the accused be made.
Rule 48: Protection Measures of Harmed Victims (Victims) and Witnesses
First: Upon the initiative of the Trial Chamber or at the request of any party, the harmed person or the witness concemed, or the victims and witnesses together, who request appropriate security protective measures and measures for the special protection of the harmed person or the witness, provided these measures are consistent with the rights of the accused, the Tribunal shall order that such measures to protect the harmed person or the witness be taken before the indictment is confirmed or at any other time.
Second: The Tribunal shall hold private deliberations to determine the following:
a. Measures to prevent the disclosure to the public or the media of the whereabouts of the harmed person or the witness, or of the persons who are important in the offense, or the witnesses, by such means as:
1. Expunging the name and identifying information mentioned in records (minutes) ofthe SICT;
2. Non-disclosure to the public of any records identifying the harmed person or the witness;
3. Prohibition of filming the testimony, or registering it through voice¬altering devices or closed-circuit television, video link or other technological devices;
b. Holding closed sessions in accordance with Rule 71 of the present Rules;
Third: the Tribunal shall oversee the questioning of witnesses without harshness or intimidation.
Fourth: When taking a decision pursuant to sub-Rule (First) ofthis Rule, the Trial Chamber shall mention whether it is possible to copy the witnesses' statements and whether these can be made available in other proceedings before the SICT.
Fifth: Once protective measures have been ordered in any tri al before the SICT, such measures shall remain unless they have to be replaced in subsequent trials before the SICT, or rescinded, changed or augmented in accordance with the procedure set out in sub-Rule (Seventh) ofthe present Rule.
Sixth: In case of subsequent protective measures, or in case these are changed or augmented compared to those ordered the first time, the following shall apply:
a. This same protection remains standing in every Trial Chamber, regardless of its formation;
b. If the initial protection does not remain, then the Trial Chamber must retain the subsequent protection.
Seventh: Before applying sub-Rule (Sixth) ofthe present Rule, the Trial Chamber that retains the subsequent protective measures shall obtain all relevant information from the earlier protection and consult with any Judge who ordered the initial protective measures.
Eight: References in this Rule to the Trial Chamber includes the Judge of that Trial Chamber or the Designated Judge.
Rule 49: Solemn Oath of Interpreters and Translators
Before performing any duties, the interpreter, translator or expert shall solemnly swear to do so in all integrity, impartiality and independence, with full respect for the confidential nature ofthe duty.
Rule 50: Public Sessions
All trial sessions before the Trial Chamber shall be held in publico Photography, video, or audio broadcasting or recording of public proceedings shall be prohibited, unless authorized by the Trial Chamber or for recording purposes for the SICT pursuant to Rule 57 of the present Rules. Also, all deliberations of the Trial Chamber shall be confidential (closed).
Rule 51: Closed Sessions
First: The Trial Chamber shall order that the press and the public be excluded from sorne or all the Chamber' s sessions when:
a. If the release of information causes prejudice to the national security of Iraq;
b. It is necessary to ensure the security ofthe SICT;
C. It is necessary to protect the privacy of persons, as in cases of sexual assaults involving women and children;
d. Making the session public causes prejudice to the interests of justice.
Second: In case the Tribunal does not grant permission, no person is allowed to disclose information related to a closed session.
Third: If in the opinion of another sovereign State, the disclosure of information harms its national security, then reasonable steps to include such information in closed sessions shall be taken by the Trial Chamber to ensure that the security of this State are not prejudiced. If a State remains worried for its national security after the Trial Chamber has taken its decision, it can appeal this decision. Any such appeal must be raised within 7 days of the date it is issued, and the appeal shall be considered as an urgent issue but shall not hinder the continuation of the trial.
Rule 52: Control of Trial
First: The Trial Chamber may exclude any person from the trial in order to protect the right of the accused to a fair and public trial, or to preserve the solemnity of the tri al.
Second: The accused cannot be moved away from the courtroom during the prosecution, unless he acts in such a way that disrupts the order during the trial. The proceedings shall remain in this case until it is possible to continue the tri al in his presence. The Chamber shall notify him of the proceedings that took place during his absence.
Rule 53: Records of Trial and Preservation of Evidence
First: The Director of the Administration and Services preserve all records of the trial, including audio recordings, transcripts and, when deemed necessary by the Trial Chamber, video recordings of the trial.
Second: The Trial Chamber may order the disclosure of all or part of the records of closed sessions when the reasons for non-disclosure no longer stand.
Third: The Director of the Administration and Services shall preserve all physical evidence presented during the trial.
PART TWO
Trial Proceedings
Rule 54: Single and Joint (Group) Trials
The provisions ofthe Code of Criminal Procedure Nº 23 of 1971 shall be applied to Single and Joint (Group) trials.
Rule 55: Means of Restraint
The accused shall be brought to the courtroom without any form of restraint or handcuffs, and it is up to the Chamber to take the necessary measures to ensure order in the courtroom.
Rule 56: Commencement of Trial
Except where expressly required by the Law or the present Rules, the trial shall be conducted in accordance with the procedures stipulated in Article 167 ofthe Code ofCriminal Procedure No. 23 of 1971.
Rule 57: Presentation of Evidence
First: Taking into account the provisions of Article 168 of the Code of Criminal Procedure, in every case, the litigants must be allowed to question and examine the witness, in view of refuting his statements and re-questioning him. The party calling for the witness statement shall conduct the debate with the witnesses or their questioning. The party who did not call a witness shall conduct the cross-examination. After the debate and questioning, the party calling a witness shall conduct the re-examination. The party that called the witness shall conduct the questioning of the witness first. The Judge shall at any stage direct the question to the witness. The accused shall not question the witness directly except through the Trial Chamber).
Second: Evidence may be submitted directly to the Trial Chamber, [or] via such media communications, including video or satellite channels, and as the Tribunal may order.
Rule 58: The Judgment
First: The judgment of the accused shall be pronounced in public, during the session especially scheduled for its announcement.
Second: If the Trial Chamber issues a judgment that convicts the accused and orders a sentence, it shall order the forfeiture of any objects acquired from the crime, in accordance with Articles 101 and 117 of the Penal Code Nº 111 of 1969.
Third: The judgment shall be rendered by a majority ofthe five judges assigned to the Trial Chamber. The opinions of the dissenting judges shall be appended to it with each reason written separately, and the dissenting opinion shall be preserved in the file ofthe case.
SECTION THREE
Rules for Gathering Evidence
Rule 59: General Provisions
First: The Trial Chamber shall apply the rules of evidence stipulated in the Code of Criminal Procedure Nº 23 of 1971 as well as in these Rules, and shall not be bound by rules of evidence used in any other tribunal.
Second: In the absence of a law stipulating the application of rules of evidence, the Trial Chamber shall apply rules of evidence that are most adequate to achieve a fair decision and that are consistent with the spirit of the law and general principles of law.
Third: The Tribunal shall accept any relevant evidence that has probative value.
Fourth: The Trial Chamber may not accept evidence ifits probative value does not have a substantial impact and which may incur prejudice, undue delay, waste oftime, and is not needed as evidence.
Fifth: The following factors shall be taken into consideration when determining the admissibility of evidence under this Rule:
a. Confirming the authenticity of the evidence obtained outside the court;
b. Selecting those statements and circumstances that can verify or impugn the statement;
c. Respecting other extensions, limited to whenever these are of interest in that they confirm the validity of the evidence and its trustworthiness;
d. Considering the means by which the evidence was obtained and whether it is refused, as a basis for relying on it.
Rule 60: Testimony of Witnesses
First: The statement is given directly or as stipulated in Rule 60 of the present Rules. When sub-Rule (Fourth) ofthe Rule 59 is applied, the Chamber may accept that the testimony of witnesses be made by telephone, audiovisual or other means. In any case, when the Trial Chamber assesses the statement, it takes into consideration the variables in the testimonies and the extent to which these have an impact on the testimonies given be the witnesses.
Second: Prior to making his statement, the witness, who is over 15 years old, shall take the oath that he shall speak the truth and nothing but the truth. In case the witness is below the aforementioned age, he can be heard for the sake of argumentation, without him taking the oath.
Rule 61: False Testimony
If the Tribunal has strong grounds to believe that a witness has knowingly and willfully given a false testimony, it shall approach the Investigations Chambers to take the legal procedures against him.
Rule 62: Testimony of Experts
First: The testimony of experts is that which is given by witnesses qualified as experts by knowledge, skill, experience, training, or education, and who have scientific, technological, or other specialized expertise that will help the Trial Chamber in understanding the evidence.
Second: If any party wishes to provide a written statement in lieu of oral testimony, the full written statement of the witness shall be disclosed to the litigant as early as practicable.
Rule 63: Rules for Gathering Evidence in Cases of Sexual Assault
First: In cases of sexual assault and if there is reasonable cause, there is no need for the testimony of the harmed persono
Second: Consent as a defense shall not be allowed if the harmed person:
a. Is subject to threats with or has reason to fear violence, coercion, duress, detention or psychological harm, or believes that he is a victim of compulsion, threat or fear.
Third: The evidence submitted by the accused must prove the consent of the harmed person, devoid of any shortcomings in that consent.
SECTION FOUR
Procedures for Issuing the Judgment
Rule 64: Status of the Acguitted Person
First: When the judgment of acquittal or release is pronounced, the Prosecutor shall inform the Trial Chamber during the same session ofhis intention to file notice of appeal within the legal duration from the date on which the full judgment is rendered, and present subsequently the appeal plea. The Trial Chamber shall then order the continued detention of the accused, pending the result of the appeal.
Second: In case of acquittal or release, and the Prosecutor announces that he has no intention to appeal the judgment pursuant to sub-Rule (First), and in case there is no other case against the accused, the Trial Chamber shall order the release of the accused.
Rule 65: Sentences
First: In issuing a judgment, the Trial Chamber takes into account the factors mentioned in Article 24 of the Law, as well as the following factors:
a. The aggravating circumstances;
b. Any attenuating circumstances including the substantial cooperation of the criminal person with the Chief Prosecutor or the Investigative Judge before and after the conviction;
c. The provisions of Article 30 (Third) ofthe Law.
Second: The Trial Chamber shall decide whether multiple sentences of imprisonment shall be served consecutively or concurrently.
Third: The period of detention or arrest of the accused person shall be counted from the moment this person was detained or arrested until he was delivered to the SICT, either for the trial or pending the result ofthe appeal. This period does not include the time, if any, during which the accused was detained by the government of another sovereign State, unless that State was acting in a primary way, at the bequest of the Iraqi Council of Ministers or the successor government, taking into consideration that the date of the recovery of sovereignty is June 1, 2004.
Rule 66: Enforcement of Sentence
First: The sentence shall be enforced in accordance with the present Rules and the provisions ofthe Code o fCriminal Procedure Nº 23 of 1971.
Second: If the Trial Chamber had previously ordered that the convicted person be on conditional release or is otherwise at liberty, and is not present when the sentence is pronounced, the Trial Chamber shall issue a warrant for his arrest. Upon his arrest, he shall be notified of the conviction and the sentence, and shall follow the procedures stipulated in Rule 68 of the present Rules and Article 151 of the Code of Criminal Procedure Nº 23 of 1971.
Rule 67: Confiscation of Property
After a sentence of conviction or incrimination, which contains specific procedures as provided in Rule 58 (Second) ofthe present Rules, the Trial Chamber shall, at the request of the Prosecutor or at its own initiative, hold a special session to determine the matter of property forfeiture stipulated in the aforementioned clause, if it does not decide to forfeit the property taking into consideration Article 307 of the Code of Criminal Procedure Nº 23 of 1971 and Paragraph 7 of Article 24 of the Law.
Rule 68: The Appeal
The appeals proceedings and the time limit for the appeal should be consistent with the Law and the Code ofCriminal Procedure Nº 23 of 1971.
a. The judgment of the Investigation Judge may be appealed before the Appeals Chamber within 15 days starting from the date he was notified or considered to be notified.
b. The appeal before the Appeals Chamber ofthe verdicts andjudgments issued by the Trial Chamber shall be in accordance with the Code of Criminal Procedure No. 23 of 1971.
Rule 69: Retrial
The retrial procedures shall be consistent with the Law and the Code of Criminal Procedure Nº 23 of 1971.
Rule 70:
These Rules shall be considered as an addendum to Law 10 of 2005 of the SICT.
SECTION ONE
Definitions and General Provisions
Rule 1: Definitions
In these Rules, unless the context otherwise requires, the following terms shall have the meanings ascribed to them below:
1. The Law: Law ofthe Supreme Iraqi Criminal Tribunal (SICT), number (10) of 2005
2. Judge: the Appellate Judge, the Trial Judge or the Investigative Judge
3. President: The President ofthe Supreme Iraqi Criminal Tribunal
4. Appellate Judge: Any judge of the Appeals Chamber
S. Presiding Judge: The judge presiding over the Trial Chamber, in accordance with the Law.
6. ChiefInvestigative Judge: the Tribunal’s ChiefInvestigative Judge
7. Investigative Judge: the designatedjudge
8. Prosecutions Department: The Prosecutions Department assigned the Tribunal
9. ChiefProsecutor: The ChiefProsecutor as referred to in the Law.
10. Public prosecutor: the Prosecutor assigned to the Tribunal.
11. Non-Iraqijudges: Those judges assigned to the Tribunal in accordance with this Law.
12. Experts: Those non-Iraqi nationals referred to in the Law.
13. Victim: A person against whom a crime over which the SICT has jurisdiction has allegedly or has been found to have been committed.
14. Suspect: A person conceming whom the Investigative Judge possesses reliable information which brings to believe that he may have committed a crime over which the SICT has jurisdiction.
15. Transaction: A number of acts or abstentions, whether occurring as one event or as a number of events, at the same or different locations, and being part of a common plan or strategy constituting a crime
16. Investigation: All acts and activities undertaken pursuant to the Law and these Rules for the collection of information and evidence, whether before or after issuing an indictment.
Rule 2: Procedures taken outside the Seat of the SICT
The Investigative Chamber or Investigative Judge may exercise part of its function outside Iraq, if so authorized by the President and if necessary. In so doing, the Chamber may resort to audio or video-link technology, email and other electronic devices, and take whatever measures it deems necessary for the implementation of this clause.
Rule 3: Non-compliance with the Rules
First: The litigant shall raise his requests on the grounds ofnon-compliance with the Law or these Rules to the Tribunal at the earliest opportunity. The Tribunal shall respond to such requests if it finds that the allegations and requests are proven.
Second: The response as per this Rule shall be determined as the SICT deems appropriate to ensure consistency with the fundamental principles of justice.
Rule 4: Time Limits
First: Unless otherwise mentioned in the Law or these Rules, the duration for any procedure shall follow the general rules as set forth in Iraqi laws.
Second: Unless otherwise ordered by the Trial Chamber, any plea to a request shall be filed within (14) days ofthe date of service of such plea on the requesting party. The response to the plea shall be filed within seven days of the date of service of such response.
SECTION TWO
Cooperation and Judicial Assistance
Rule 5: Pleas and Orders
1. If an Investigative Judge is convinced that a government official or other individual has failed to comply with a request made in accordance with Article 18 ofthe SICT Law, he may take legal measures against him and refer the case to the SICT in accordance with the clauses of the Code of Criminal Procedure.
SECTION THREE
Organizational Structure of the SICT
PART ONE
The oath
Rule 6: Texts of the oath
First: The Judges
All judges shall take the following oath before the President of the Federal Judicial Council as follows: "I swear by God to judge among the people with justice and to apply the law in all faithfulness. "
Second: Public Prosecutors
Before beginning their mission, public prosecutors shall take the following oath before the President of the Supreme Judicial Council: "I swear by God to perform the functions of my office and to apply the law in all faithfulness and loyalty."
Third: Judicial Investigators
Before beginning their mission, judicial investigators shall take the following oath before the Appeals Chamber: "I swear by God to perform the functions of my office with justice and to apply the law in all faithfulness."
Fourth: The minutes ofthe oath-taking ceremony shall be preserved in the Tribunal’s records.
PART TWO
The Judges
Rule 7:
First: Each Judge shall act with complete independence and shall not be subject or respond to instructions or directions issued by the Presidency of the Republic, the Council of Ministers, or any other government body or other party during his judicial mission.
Second: During the investigation, trial or appeal, the Judges must perform their duties with complete impartiality.
Third: A Judge must examine any case in which he has a personal interest or related concem or in which he has or had any personal association which might affect his impartiality.
Fourth: A Judge must withdraw from any case in which his impartiality or independence might reasonably be in doubt.
Fifth: The President must appoint another Trial Judge to replace the withdrawn Trial Judge when necessary. The ChiefInvestigative Judge must appoint another Investigative Judge to replace the withdrawn Investigative Judge, when necessary.
Rule 8:
Any litigant may submit a request to the Appeals Chamber, which is supported by evidence considered as legal, in which he feels that the Judge has lost his judicial capacity. He shall receive an answer within three days.
Rule 9: Absence and Termination of Service of Judges
First: Judges ofthe SICT shall fulfill their duties from the time they take their oath until such time as they are disqualified from holding office at the SICT or replaced by another Judge due to an expiration of the Judge's term of office.
Second: A Judge who decides to resign shall give notice ofhis resignation in writing to the President, who shall transmit this request to the Cabinet.
Third: If a Trial Judge, for any reason, is unable to continue sitting a case, the President must, as deemed necessary, appoint another Judge to this case.
Rule 10: Seniority
First: The seniority of Judges appointed on different dates shall take precedence according to the dates of their appointment. The seniority of Judges appointed on the same date shall take precedence according to their date of birth.
Second: In case of re-appointment, the total period of service as a Judge of the SICT shall be taken into account to assess his seniority.
Third: All Judges are considered equal in the exercise of their judicial functions, regardless of dates of appointment, age, duration of service, or nationality.
PART THREE
The Presidency
Rule 11: The Vice-President
The position of Vice-President shall be held by the most senior Judge among the members of the Appeals Chamber.
Rule 12: Temporary Solutions to Replace the President or Vice-President
Ifneither the President or the Vice-President are able to fulfill the functions ofthe Presidency, these shall be assumed by the next senior Judge, until such time as the President or Vice-President are able to resume their duties or a replacement President is elected.
PART FOUR
The Director of the Administration Department
Rule 13: The Administration Department Staff
The Director of the Administration Department shall set up the yearly staff as adequate for the efficient functioning of the Administration Department. This staff is subj ect to the discussion and approval ofthe Tribunal Plenary Body.
Rule 14: Functions of the Director of the Administration Department
First: The Director of the Administration Department shall provide administrative assistance and services to the SICT Trial Chambers, its plenary meetings, the Judges and the Public Prosecutors as well as the Defense Office in fulfilling their functions. Under the authority of the President, he shall be responsible for the administration and servicing of the Tribunal.
Second: While fulfilling his functions, the Director of the Administration Department shall present oral or written reports to the Tribunal's Chambers, related to any issue arising in the context of a particular case or that could affect the execution of these functions, including taking measures related to executing judicial decisions. He shall moreover take the necessary measures to notify the litigants when necessary.
Third: The Director of the Administration Department is responsible for the conditions of detention of suspects and accused persons. The Director, mindful of the need to ensure respect of human rights and fundamental freedoms (particularly the presumption of innocence until proven guilty), shall in consultation with the President, adopt or amend the instructions necessary to arrest persons, pending trial or appeal, or otherwise arrest persons as per other arrest proceedings.
Rule 15: Victims and Witnesses Unit
First: The Director of the Administration Department shall set up a Victims and Witnesses Unit, which shall fulfill a specific function in accordance with the Law and these Rules, and pursuant to the orders of the Chief Investigative Judge and the Chief Prosecutor.
The function of this unit is related to all the witnesses and victims who appear before the SICT and all other individuals who are at risk on account ofthe testimony they give. Sorne of the functions that this unit shall carry out towards all these people, in accordance with their particular needs and circumstances, are:
a- Present recommendations to the SICT on the adoption ofprotective and security measures for them;
b- Provide them with sufficient safety measures and security arrangements, and develop long or short term plans for their protection and support;
c- Make sure that they receive adequate support, counseling, medical assistance, physical and psychological rehabilitation, especially in cases of rape and sexual assault.
Second: The Unit personnel shall include experts in external adversity (or injury), including adversity related to crimes of sexual violence. When necessary, the Unit shall cooperate with non-governmental and intergovernmental agencies.
Rule 16: Minutes of the Plenary Meetings
The Director of the Administration Department and the administrative staff shall be responsible for taking the minutes of the Plenary Meetings of the SICT and the instructions of the President.
PART FIVE
The Chief Prosecutor
Rule 17: Appointment of the Chief Prosecutor and his Deputy
First: Pursuant to Article 9 (Fourth) ofthe Law, the ChiefProsecutor and his Deputy shall be appointed for a one-year, renewable termo
Second: If the Chief Prosecutor does not fulfill his work, resigns, or is removed from office before the expiration of his term, the other appointed prosecutors shall select a replacement from among their number for the remainder ofthe term, as per Article 9 (Fourth) ofthe Law.
PART SIX
The Investigative Judges
Rule 18: Appointment of the Chief Investigative Judge
First: The ChiefInvestigative Judge and his Deputy shall be elected by a majority ofvotes of the Investigative Judges. In the event that an equal number ofvotes are cast for the leading candidates, the candidate who has seniority shall become the Chief Investigative Judge, as per Rule 10.
Second: The ChiefInvestigative Judge and his Deputy shall be elected for a one-year, renewable termo
Third: If the Chief Investigative Judge does not fulfill his work, resigns, or is removed from office before the expiration ofhis term, the Investigative Judges shall appoint from among their number a successor for the remainder of the term.
Rule 19: Functions of the Chief Investigative Judge
First: The Chief Investigative Judge shall coordinate the work of the Investigative Judges and carry out all other functions conferred on him as per the Law and these Rules.
Second: The ChiefInvestigative Judge may, after consultation with other Investigative Judges, issue work instructions consistent with the Law and these Rules.
Rule 20: Functions of the Deputy Chief Investigative Judge
The Deputy Chief Investigative Judge shall carry out the functions of the Chief Investigative Judge, in case the latter is absent or unable to work.
SECTION FOUR
Non-Iraqi Advisors/Experts
Rule 21: Functions of the Non-Iragi Advisors and Experts
First: The Non-Iraqi advisors or experts, appointed in accordance with the Law, shall be assigned to the Prosecutions Department, Investigative Judges, the Trial Chambers and the Appeals Chamber, with each ofthese being considered as a separate functional entity. Anyone assigned as a non-Iraqi advisor or expert to one functional unit ofthe SICT may not concurrently act as an advisor to another functional unit of this Tribunal. However, a non¬Iraqi advisor or expert may be reassigned from one functional unit to another, upon the approval ofthe President. In the event ofa reassignment, the non-Iraqi advisor or expert may not participate to any degree in providing advice and expertise on a case he was previously associated with, prior to his reassignment.
Second: Upon approval of the President, the Director of the Administration Department shall provide non-Iraqi advisors or experts with all the necessary means and facilities for them to fulfill their functions.
Third: The non-Iraqi advisors or experts appointed to the Defense Office, as per Rule 30 of the present Rules, shall offer assistance in the administration of the Defense Office, including providing advice on any proposed amendments to these Rules or to any rules of the Code of Professional Conduct. They may not take any action that would stem from an attomey-client relationship with a suspect or accused, including representing a suspect or accused person in any proceedings before the SICT.
Fourth: The non-Iraqi advisor or expert assigned to the Investigative Judges, a Trial Chamber or the Appeals Chamber shall provide impartial, confidential and non-binding expert advice and recommendations. A non-Iraqi advisor or expert assigned to the Prosecutions Department or the Defense Office shall provide impartial, confidential and non-binding advice and recommendations.
SECTION FIVE
Investigations and Rights of the Accused
PART ONE
Initiation of an Investigation
Rule 22: Initiation of the Investigation
First: Investigative proceedings are initiated by an oral or written complaint raised to the Investigative Judge, pursuant to Article 18 of this Law.
Second: Iraqi ministers, govemmental bodies, investigative officers, intemational organizations, or any other agency or organization may raise a complaint to the Investigation Judge ofthe SICT.
PART TWO
Investigations
Rule 23: Conduct of Investigations
First: In the conduct of an investigation, the Investigative Judge shall:
a. Review witness statements, summon and question suspects, question victims and witnesses and record their statements, collect evidence and conduct on¬site investigations;
b. Take all measures deemed necessary for the investigation, including special measures to ensure the safety of secret witnesses and sources;
c. Seek, with the concurrence of the Chief Investigative Judge, the assistance of any govemmental authority or intemational body related to the issue, including the Intemational Criminal Police Organization (INTERPOL);
d. Present a deferral request, as per the law.
Second: An Investigative Judge shall gather both [sic] exculpatory evidence. The Prosecution Department may view all the evidence gathered by the Investigative Judge during his investigation.
Third: The Investigative Judge shall question the witness and victim away from the public, and pursuant to the regulations of the amended Penal Prosecutions Code 23 of 1971. However, this Rule does not prohibit a suspect's defense attorney from meeting individually with the secret victims and witnesses. The suspect or the defense attorney may provide evidence to an Investigative Judge and any of them may request the Investigative Judge to conduct any questioning of the witness that is deemed necessary and crucial.
Rule 24: Provisional Measures
First: The Investigative Judge may order any governmental authority to carry out the following, if it deems it adequate:
a. To arrest a suspect and place him under temporary detention as per the IST Law and these Rules, and other provisions of the Iraqi law as may be relevant;
b. To seize all material evidence;
c. To take adequate measures to prevent the escape of a suspect or an accused person, the harming or intimidation of a victim or witness, or the destruction or loss of evidence.
The Investigative Judge shall indicate in this written order the grounds upon which he based himself and, unless he simply wishes to question the suspect, he shall mention in the order the primary charge, with a summary of its contents upon which he has relied. He shall further specify the initial time limit for the temporary detention of the suspect.
If the suspect is notified of this order, he must be told of his rights as specified in this Rule, subsequently, given as soon as possible a copy ofthe Investigative Judge’s order.
Second: In deciding whether to issue such order, the Investigative Judge shall consider the following:
a. Whether there is a reliable body of evidence that brings to believe that the suspect may have committed a crime that falls within the jurisdiction of the SICT;
b. Whether temporary detention is a necessary measure to prevent the escape of the suspect, or to prevent the harming or intimidation of the victim or the witness, or the destruction or loss of evidence;
c. Whether temporary detention is necessary for the effective conduct of the investigation.
Third: The suspect shall be released if:
The Investigative Judge or the SICT issues a subsequent release order.
Rule 25: Orders of Temporary Detention
First:
1. The accused cannot be placed under temporary detention for a period exceeding 90 days, starting from the day following that in which he is consigned to any detention unit affiliated to the SICT. This detention period may be extended for an additional 30-day period, by further order of the Designated Judge. This term is renewable; however the total period must not exceed 180 days.
2. The l80-day period may only be extended by the Designated Judge following approval of the President.
3. The decisions mentioned in paragraphs (first - second) may be appealed.
Second: The provisions of Rules 35 and 36 ofthese Rules shall apply to the execution ofthe accused person' s temporary detention.
Third: The accused must be brought, without delay following his temporary detention, before the Investigative Judge who issued the initial arrest order, or another Investigative Judge appointed by the Chief Investigative Judge. The Investigative Judge shall establish that the right of the accused to counsel is respected. The accused is entitled, at his own expense, to a defense lawyer qualified under Rule 29 of these Rules. If the accused asks the principal lawyer to provide him with a defense lawyer, the Investigative Judge shall inquire into the accused’s ability to pay for the lawyer’s fees, and instruct the Defense Office to ensure such lawyer. The Defense Office shall charge the accused for any legal services provided unless the Trial Judge finds that the accused is unable to payo
Fourth: Subject to Rule 59 ofthese Rules, the accused may be detained until the conclusion ofhis trial if such arrest is deemed necessary to ensure his appearance before the tribunal, or to protect any victim or witness, or to prevent the destruction or los s of evidence.
Rule 26: Preservation of Information and Evidence
First: The Investigative Judge, Public Prosecutor or Investigator shall send a copy of information and material evidence to the unit responsible for collecting evidence and information affiliated to the Tribunal. This unit shall preserve this material.
Second: The Investigative Judge shall prepare an account of all the material gathered, including documents, books, papers, and other objects. He shall give a copy ofthis account to the individual from whom the material was seized. Material that is of no evidentiary value shall be inventoried and safeguarded until such time that it can be returned.
Third: In a case the Trial Chamber requests documents from the Information Unit, the latter shall ensure a secured place for its transportation and storage.
Rule 27: Rights of the Accused during the Investigative Judge’s Ouestioning
First: The accused questioned by the Investigative Judge is entitled to rights, which the Investigative Judge shall notify him of prior to the questioning, in the language the accused speaks and understands. These rights are:
a. The right to assistance of his own choosing, including the legal assistance provided by the Defense Office ifhe cannot afford to pay for the assistance;
b. The right to an interpreter' s services, free-of-charge, if he cannot understand or speak the language used during the questioning;
c. The right to remain silent. In this regard, the suspect or accused shall be cautioned that anything he says may be used against him in court.
Second: The accused may waive his right to legal assistance during the questioning, provided the Investigative Judge establishes that the waiver is made in allliberty and awareness.
Third: If the accused practices his right to legal assistance, the Investigative Judge shall not question him without the presence of the lawyer, if the suspect does not voluntarily waive this right immediately after, in full knowledge of his right to the presence of the lawyer. In case of a waiver, if the suspect subsequently expresses the wish for the presence of a lawyer, the questioning shall cease only to be resumed in presence of the lawyer.
Rule 28: The Investigative Judge’s Recording of the Ouestioning
If the Investigative Judge questions the accused, he may record this questioning by audio or visual recording, or by a recording clerk.
PART THREE
The Defense Counsel
Rule 29: Appointment of the lawyer
First: The lawyer appointed by the accused shall present his power of attorney to the designated judge at the earliest opportunity. The latter shall verify this lawyer' s qualification, as per the Iraqi Law.
Second: Pursuant to Articles 18 (Third) and 19 (Fourth) ofthe SICT Law, the accused may retain one or more non-Iraqi lawyers.
Third: In carrying out his functions, the lawyer shall adhere to the relevant provisions of the Law, these Rules and any other rules or regulations adopted by the SICT. Moreover, he shall adhere to any codes of practice and ethics goveming his profession.
Rule 30: The Defense Office
First: The Director of the Administration Department shall establish a Defense Office for the purpose of ensuring the rights of accused. The Defense Office shall be headed by a director chosen from among the lawyers, for a three-year, renewable termo The Director may remove the lawyer heading the office from his position for a valid reason, following a proper investigation and the approval of the President.
Second: In accordance with the Law and these Rules, the Defense Office shall provide counsel and assistance to each of the following:
a. The accused placed in temporary detention in accordance with Rule 22 of these Rules;
b. The accused who is being questioned by the Investigative Judge in accordance with Rule 27, even if the accused is not in detention;
C. The accused persons standing before the Tribunal.
Third: Sorne of the main functions of the Defense Office include:
a. Providing legal assistance to any accused unable to afford the service, or as ordered by the Tribunal;
b. To charge or appoint a lawyer that is not located far from the detention unit and the seat of the Tribunal, to present himself to the detention unit when he is charged with providing legal assistance to the suspect or accused;
c. Providing the required facilities to enable the lawyer in preparing his defense.
Fourth: The head ofthe Defense Office shall, in view ofproviding an effective defense for the accused, assign a highly qualified criminal defense lawyer.
Fifth: The demands and defense of the client, the accused, shall be presented by he lawyer with high precision.
Sixth:
a. Pursuant to Rule 21(Third) ofthese Rules, the Director may, in agreement with the head ofthe Defense Office, contract with non-Iraqi experts and advisors to provide assistance and expertise to the Defense Office.
b. The non-Iraqi advisors or experts shall be selected for their experience in Criminal Law in their countries, for their extensive knowledge of or expertise in intemational war crime trials, and for their integrity and high moral character.
Rule 31: Misconduct of Lawyer
First: The judge or the Trial Chamber may take legal measures against the lawyer if, in his/its opinion, the latter’s misconduct has become offensive and harmful, or demeans the dignity of the SICT, or obstructs the proceedings.
Second: In case of a lawyer's misconduct, the judge or Trial Chamber may, upon the consent of the President, communicate to the body regulating the professional conduct in this Lawyer’s country of such conduct.
SECTION SIX
Proceedings of the Investigation Judge
PART ONE
Multiple Crimes
Rule 32: Multiple Crimes
a. If a person is accused of multiple crimes, measures shall be taken against the accused in accordance with the provisions of Article 132 ofthe Iraqi Code of Criminal Procedure Nº 23 of 1971.
b. If a person is accused of more than one crime, he can be referred to the SICT to one case if these crimes are punishable by one article of the same law.
Rule 33: Non-Disclosure ofthe Indictment
First: The designated judge may order the non-disclosure to the public of any documents or information until further order, in exceptional circumstances and to serve the interest of justice.
Second: The Trial Chamber or designated judge may issue an order for the non-disclosure, in total or part, of any particular document or information, if necessary or is convinced that issuing such an order is required to give effect to the provisions of these Rules or to preserve the confidentiality of information obtained by the Investigative Judge or the Chief Investigative Judge, or otherwise serves the interests of justice.
PART TWO
Orders and Warrants
Rule 34: General Provisions
First: First based upon the request of any party or plaintiff, the Investigative Judge shall issue such orders, summonses, subpoenas, and warrants as may be necessary in the interests of justice for the purposes of the investigation.
Second: First based upon the request of any party or plaintiff, the designated judge or the Trial Chamber may issue orders, summonses, subpoenas and warrants as may be necessary for the purpose of summoning the accused or the conduct of the trial.
Rule 35: Enforcement of Arrest Warrants
First: Pursuant to Rule 24 of these Rules, an arrest warrant shall be signed by an Investigative Judge and shall bear the seal ofthe SICT. It shall be accompanied by an account ofthe criminal charges brought against the accused, the legal text or the bill of indictment, and a statement of the rights of the suspect or the accused. The Director of the Administration Department shall communicate to the relevant Iraqi authorities three sets of certified copies of these documents.
Second: Taking into account Rule 24 of these Rules, the Director of the Administration Department shall request from the aforementioned authorities the following:
a. To arrest ofthe suspect or the accused and transfer him to the Tribunal;
b. To inform the suspect of the accused of the set of aforementioned documents related to the suspect or accused, and to read those documents that need to be read to the accused in the language he understands, and inform him of his rights in that language;
c. To retum a copy ofthe documents with proof of service to the SICT.
Rule 36: Non-Enforcement of Arrest Warrants
First: When the relevant Iraqi authorities to whom the arrest warrant or orders referred to under Rule 24 or others, are unable to enforce the arrest warrant, they shall present a report to the Director ofthe Administration Department stating the reasons for their non- enforcement.
Second: Ifwithin a reasonable period after the arrest warrant or orders have been communicated to the relevant Iraqi authorities, no report has been presented about the action taken in this regard, this shall be considered as a non-enforcement ofthe arrest warrant or of the orders. The Presiding Judge of a Trial Chamber shall, upon his own initiative or at the request of an Investigative Judge, notify the President of this non-enforcement so that appropriate action can be taken.
Rule 37: Procedure upon Confession
First: If the accused pleads guilty for the charge brought against him or requests to change his plea to guilty, the Tribunal shall need to establish that:
a. The accused person makes his plea of his own free choice and will;
b. The plea is unequivocal and there is a sufficient factual ground to establish the accused's responsibility for the crime.
Second: Thereafter, the Trial Chamber may find him guilty if the conditions referred to in paragraph (First) ofthis clause are met, and the Trial Chamber is convinced of criminating the accused ofthe action to which he pled guilty. Thereupon, the Trial Chamber shall instruct of the end of the trial and set the date for pronouncing the judgment.
Third:
a. If the Trial Chamber is not convinced ofany ofthe factors in paragraph (First) of this clause, or if, under applicable law, the criminal act is punishable by death, then the Trial Chamber shall enter a not guilty plea and pursue the trial.
b. In case the Trial Chamber accepts the accused person’s 'not guilty' plea for the act punishable by death, and ifthis plea is pursuant to Rule 38 ofthe present Rules, and if the Chief Prosecutor has recommended a sentence that is less severe than the death penalty, then the Trial Chamber must close the trial and issue the sentence.
Rule 8[sic]: Agreement on Confession
The offer for pardon for those accused of ambiguous crimes shall be made in accordance with Article 129 ofthe Code of Criminal Procedure Nº 23 of 1971.
Rule 39: Detention and BaH
The detention and bail shall be in accordance with the Code of Criminal Procedure Nº 23 of 1971, provided the place of detention is located within the detention facilities ofthe Tribunal.
PART THREE
Presenting Evidence
Rule 40: The Prosecutor’s Disclosure of the Material Constituents of the Crime
First: Pursuant to Rules 33 and 51 of the present Rules, the Public Prosecutor shall:
a. Disclose to the defense lawyer all the witnesses' depositions and evidence, 45 days prior to the commencement of trial. F or purposes of this sub-Rule, the depositions ofwitnesses shall be in written form and signed by the accused, or the witnesses shall make their statements, which shall be read, during the trial. The Trial Chamber shall order that additional copies of the witnesses' depositions be made available to the Defense within a prescribed time.
b. Upon the request of the Defense, and pursuant to Rule 42 of the present Rules, the defense lawyer is allowed to examine the books, documents and photographs and obtain them in preparation for his Defense. He may also examine confidential materials peculiarities, books, documents, photographs and tangible material, or whatever he finds in the possession of the accused, and which is intended to be submitted as evidence to the Trial Chamber.
Second: During the investigation, and during the prosecutor’s examination of documents and information, he could discover other issues that come against the public interest or that can affect the national security interests of any State. In such case, the prosecutor shall ask the Chief Investigative Judge to entrust a designated Judge with the investigation in secret, and whose identity shall not be disclosed, as an exception to sub-Rule (a) ofthis Rule.
When taking such a procedure, the prosecutor shall provide the information and material that is kept as confidential.
Rule 41: Reciprocal Disclosure of Evidence
First: Regarding reciprocal disclosure of evidence, the following shall be done:
a. At least 45 days prior to the commencement of trial, the prosecutor shall notify the defense lawyer ofthe names ofwitnesses whose statements shall be heard to establish the responsibility of the act imputed to the accused.
b. The defense lawyer shall notify the prosecutor of the names of the witnesses who shall be called in for the rebuttal ofthe charge, ofwhich the prosecutor has received notice in accordance with sub-Rule (Third) ( a) of this Rule, or any charge that appears in the case during the period referred to in clause (3) (e) of this paragraph;
c. Fifteen days prior to the commencement of the trial, the defense lawyer shall tell, notify or inform the prosecutor the following:
1. Present the evidence that establishes that the accused was not present at the scene of the crime, and specify the place at which the accused was at the time of the crime, with the names and addresses of corroborating witnesses and any other evidence upon which the accused relies to establish his statement in such case;
2. Any special defense, including restraints on mental responsibility, with the names and addresses of witnesses and any other evidence upon which the accused relies to establish this special defense;
3. Stating or proving the victim's consent to the sexual assault perpetrated by the accused against her;
4. Hand the prosecutor any books, documents, photographs or tangible evidence which the court decides that the prosecutor needs to examine or copy.
d. At least 15 days prior to the commencement ofthe trial, the defense lawyer shall notify the prosecutor of the names of the defense witnesses who shall make a deposition.
Second: Failure ofthe defense lawyer to provide such information as per this Rule shall not preclude the accused from presenting his defense, and the issue of relying upon it shall be at the discretion of the Tribunal.
Third: In order to assist the prosecutor in fulfilling his obligations referred to in these Rules, the defense lawyer shall, at least 15 days prior to trial, provide the prosecutor with the Defense plea, which must include:
a. The nature of the charge ascribed to the accused in general;
b. An indication to the issues for which the Prosecutor was asked to take measures;
c. For every issue in the case, for which the Prosecutor took a measure, there should be a mention as to the reason for this measure.
Fourth: If either party discovers additional evidence or information or material which should have been produced earlier pursuant to these Rules, that party shall immediately notify the other party and the Tribunal of the existence of such additional evidence, information or material.
Rule 42: Disclosure of Exculpatory Evidence
First: In extraordinary circumstances, and based on a request by either party that serves the cause of justice, the Trial Chamber or the Chief Investigative Judge - depending on the situation - may delegate one of the court members or an Investigative Judge to hear a witness' testimony and take a deposition of it.
Second: The Prosecutor shall disclose to the defense lawyer the probative evidence he has available, which serves to exculpate the accused of the imputed crime or alleviate it, or that may affect the credibility of a prosecution witness or the validity of prosecution evidence. The Prosecutor shall continuously disclose the motives for penalties.
Rule 43: Matters not Subject to Disclosure
First: Taking into account the provisions of Rules 40 and 41 of the present Rules, reports, memoranda, and other internal documents put forward by one of the parties, and which help, or have any connection with the investigation or the preparation ofthe case, are not subject to disclosure or notification, in accordance with the aforementioned provisions.
Second: If the Tribunal is in possession of information presented to it on a confidential basis, and which it accepted on the grounds that it is confidential, and which was used solely for the purpose of generating new evidence, this information and its origin - notwithstanding Rule 42 of the present Rules - shall not be disclosed by the Tribunal without the consent of the person or party that provided this information.
Third: Upon the written consent of the person or party that provided information pursuant to sub-Rule (Second) ofthe present Rule, the Prosecutor shall chose any ofthis information as evidence in a testimony or present a document, or any other material so afforded, provided the accused receives prior notice ifthis, in accordance with Rule 42 ofthe present Rules. The Trial Chamber may not order either party to produce additional evidence obtained from a person or party, and may rule against presenting such additional information or using a person or a party's representative as witness or again, it may on the contrary, order their attendance.
Fourth: The right of the accused to disclaim the evidence presented in his case remains unaffected and is subject only to the precisions mentioned in sub-Rules (Third) and (Fourth) of the present Rule.
PART FOUR
Depositions
Rule 44: Depositions
At the request of either party with the view of serving justice, the Tribunal shall issue an order that a deposition be recorded outside the courtroom. To this end, it shall delegate one of its judges or an Investigative Judge to preside over the written deposition and prepare a record about this, taking into account the provisions of Rule 28 ofthe present Rules,
SECTION SEVEN
Trial Proceedings
PART ONE
Judgments
Rule 45: Trial Proceedings
The trial proceedings shall be in accordance with the Code of Criminal Procedure Nº 23 of 1971, and with the present Rules.
Rule 46: Intervenors in the lawsuit
The Trial Chamber may invite any organization or person to provide his expertise on any issue, if the Tribunal believes that such expertise can help it reach a fair decision in the case.
Rule 47: Medical Examination of the Accused
The Trial Chamber, at its own initiative or upon one ofthe parties' request, may order that a psychiatric or psychological examination of the accused be made.
Rule 48: Protection Measures of Harmed Victims (Victims) and Witnesses
First: Upon the initiative of the Trial Chamber or at the request of any party, the harmed person or the witness concemed, or the victims and witnesses together, who request appropriate security protective measures and measures for the special protection of the harmed person or the witness, provided these measures are consistent with the rights of the accused, the Tribunal shall order that such measures to protect the harmed person or the witness be taken before the indictment is confirmed or at any other time.
Second: The Tribunal shall hold private deliberations to determine the following:
a. Measures to prevent the disclosure to the public or the media of the whereabouts of the harmed person or the witness, or of the persons who are important in the offense, or the witnesses, by such means as:
1. Expunging the name and identifying information mentioned in records (minutes) ofthe SICT;
2. Non-disclosure to the public of any records identifying the harmed person or the witness;
3. Prohibition of filming the testimony, or registering it through voice¬altering devices or closed-circuit television, video link or other technological devices;
b. Holding closed sessions in accordance with Rule 71 of the present Rules;
Third: the Tribunal shall oversee the questioning of witnesses without harshness or intimidation.
Fourth: When taking a decision pursuant to sub-Rule (First) ofthis Rule, the Trial Chamber shall mention whether it is possible to copy the witnesses' statements and whether these can be made available in other proceedings before the SICT.
Fifth: Once protective measures have been ordered in any tri al before the SICT, such measures shall remain unless they have to be replaced in subsequent trials before the SICT, or rescinded, changed or augmented in accordance with the procedure set out in sub-Rule (Seventh) ofthe present Rule.
Sixth: In case of subsequent protective measures, or in case these are changed or augmented compared to those ordered the first time, the following shall apply:
a. This same protection remains standing in every Trial Chamber, regardless of its formation;
b. If the initial protection does not remain, then the Trial Chamber must retain the subsequent protection.
Seventh: Before applying sub-Rule (Sixth) ofthe present Rule, the Trial Chamber that retains the subsequent protective measures shall obtain all relevant information from the earlier protection and consult with any Judge who ordered the initial protective measures.
Eight: References in this Rule to the Trial Chamber includes the Judge of that Trial Chamber or the Designated Judge.
Rule 49: Solemn Oath of Interpreters and Translators
Before performing any duties, the interpreter, translator or expert shall solemnly swear to do so in all integrity, impartiality and independence, with full respect for the confidential nature ofthe duty.
Rule 50: Public Sessions
All trial sessions before the Trial Chamber shall be held in publico Photography, video, or audio broadcasting or recording of public proceedings shall be prohibited, unless authorized by the Trial Chamber or for recording purposes for the SICT pursuant to Rule 57 of the present Rules. Also, all deliberations of the Trial Chamber shall be confidential (closed).
Rule 51: Closed Sessions
First: The Trial Chamber shall order that the press and the public be excluded from sorne or all the Chamber' s sessions when:
a. If the release of information causes prejudice to the national security of Iraq;
b. It is necessary to ensure the security ofthe SICT;
C. It is necessary to protect the privacy of persons, as in cases of sexual assaults involving women and children;
d. Making the session public causes prejudice to the interests of justice.
Second: In case the Tribunal does not grant permission, no person is allowed to disclose information related to a closed session.
Third: If in the opinion of another sovereign State, the disclosure of information harms its national security, then reasonable steps to include such information in closed sessions shall be taken by the Trial Chamber to ensure that the security of this State are not prejudiced. If a State remains worried for its national security after the Trial Chamber has taken its decision, it can appeal this decision. Any such appeal must be raised within 7 days of the date it is issued, and the appeal shall be considered as an urgent issue but shall not hinder the continuation of the trial.
Rule 52: Control of Trial
First: The Trial Chamber may exclude any person from the trial in order to protect the right of the accused to a fair and public trial, or to preserve the solemnity of the tri al.
Second: The accused cannot be moved away from the courtroom during the prosecution, unless he acts in such a way that disrupts the order during the trial. The proceedings shall remain in this case until it is possible to continue the tri al in his presence. The Chamber shall notify him of the proceedings that took place during his absence.
Rule 53: Records of Trial and Preservation of Evidence
First: The Director of the Administration and Services preserve all records of the trial, including audio recordings, transcripts and, when deemed necessary by the Trial Chamber, video recordings of the trial.
Second: The Trial Chamber may order the disclosure of all or part of the records of closed sessions when the reasons for non-disclosure no longer stand.
Third: The Director of the Administration and Services shall preserve all physical evidence presented during the trial.
PART TWO
Trial Proceedings
Rule 54: Single and Joint (Group) Trials
The provisions ofthe Code of Criminal Procedure Nº 23 of 1971 shall be applied to Single and Joint (Group) trials.
Rule 55: Means of Restraint
The accused shall be brought to the courtroom without any form of restraint or handcuffs, and it is up to the Chamber to take the necessary measures to ensure order in the courtroom.
Rule 56: Commencement of Trial
Except where expressly required by the Law or the present Rules, the trial shall be conducted in accordance with the procedures stipulated in Article 167 ofthe Code ofCriminal Procedure No. 23 of 1971.
Rule 57: Presentation of Evidence
First: Taking into account the provisions of Article 168 of the Code of Criminal Procedure, in every case, the litigants must be allowed to question and examine the witness, in view of refuting his statements and re-questioning him. The party calling for the witness statement shall conduct the debate with the witnesses or their questioning. The party who did not call a witness shall conduct the cross-examination. After the debate and questioning, the party calling a witness shall conduct the re-examination. The party that called the witness shall conduct the questioning of the witness first. The Judge shall at any stage direct the question to the witness. The accused shall not question the witness directly except through the Trial Chamber).
Second: Evidence may be submitted directly to the Trial Chamber, [or] via such media communications, including video or satellite channels, and as the Tribunal may order.
Rule 58: The Judgment
First: The judgment of the accused shall be pronounced in public, during the session especially scheduled for its announcement.
Second: If the Trial Chamber issues a judgment that convicts the accused and orders a sentence, it shall order the forfeiture of any objects acquired from the crime, in accordance with Articles 101 and 117 of the Penal Code Nº 111 of 1969.
Third: The judgment shall be rendered by a majority ofthe five judges assigned to the Trial Chamber. The opinions of the dissenting judges shall be appended to it with each reason written separately, and the dissenting opinion shall be preserved in the file ofthe case.
SECTION THREE
Rules for Gathering Evidence
Rule 59: General Provisions
First: The Trial Chamber shall apply the rules of evidence stipulated in the Code of Criminal Procedure Nº 23 of 1971 as well as in these Rules, and shall not be bound by rules of evidence used in any other tribunal.
Second: In the absence of a law stipulating the application of rules of evidence, the Trial Chamber shall apply rules of evidence that are most adequate to achieve a fair decision and that are consistent with the spirit of the law and general principles of law.
Third: The Tribunal shall accept any relevant evidence that has probative value.
Fourth: The Trial Chamber may not accept evidence ifits probative value does not have a substantial impact and which may incur prejudice, undue delay, waste oftime, and is not needed as evidence.
Fifth: The following factors shall be taken into consideration when determining the admissibility of evidence under this Rule:
a. Confirming the authenticity of the evidence obtained outside the court;
b. Selecting those statements and circumstances that can verify or impugn the statement;
c. Respecting other extensions, limited to whenever these are of interest in that they confirm the validity of the evidence and its trustworthiness;
d. Considering the means by which the evidence was obtained and whether it is refused, as a basis for relying on it.
Rule 60: Testimony of Witnesses
First: The statement is given directly or as stipulated in Rule 60 of the present Rules. When sub-Rule (Fourth) ofthe Rule 59 is applied, the Chamber may accept that the testimony of witnesses be made by telephone, audiovisual or other means. In any case, when the Trial Chamber assesses the statement, it takes into consideration the variables in the testimonies and the extent to which these have an impact on the testimonies given be the witnesses.
Second: Prior to making his statement, the witness, who is over 15 years old, shall take the oath that he shall speak the truth and nothing but the truth. In case the witness is below the aforementioned age, he can be heard for the sake of argumentation, without him taking the oath.
Rule 61: False Testimony
If the Tribunal has strong grounds to believe that a witness has knowingly and willfully given a false testimony, it shall approach the Investigations Chambers to take the legal procedures against him.
Rule 62: Testimony of Experts
First: The testimony of experts is that which is given by witnesses qualified as experts by knowledge, skill, experience, training, or education, and who have scientific, technological, or other specialized expertise that will help the Trial Chamber in understanding the evidence.
Second: If any party wishes to provide a written statement in lieu of oral testimony, the full written statement of the witness shall be disclosed to the litigant as early as practicable.
Rule 63: Rules for Gathering Evidence in Cases of Sexual Assault
First: In cases of sexual assault and if there is reasonable cause, there is no need for the testimony of the harmed persono
Second: Consent as a defense shall not be allowed if the harmed person:
a. Is subject to threats with or has reason to fear violence, coercion, duress, detention or psychological harm, or believes that he is a victim of compulsion, threat or fear.
Third: The evidence submitted by the accused must prove the consent of the harmed person, devoid of any shortcomings in that consent.
SECTION FOUR
Procedures for Issuing the Judgment
Rule 64: Status of the Acguitted Person
First: When the judgment of acquittal or release is pronounced, the Prosecutor shall inform the Trial Chamber during the same session ofhis intention to file notice of appeal within the legal duration from the date on which the full judgment is rendered, and present subsequently the appeal plea. The Trial Chamber shall then order the continued detention of the accused, pending the result of the appeal.
Second: In case of acquittal or release, and the Prosecutor announces that he has no intention to appeal the judgment pursuant to sub-Rule (First), and in case there is no other case against the accused, the Trial Chamber shall order the release of the accused.
Rule 65: Sentences
First: In issuing a judgment, the Trial Chamber takes into account the factors mentioned in Article 24 of the Law, as well as the following factors:
a. The aggravating circumstances;
b. Any attenuating circumstances including the substantial cooperation of the criminal person with the Chief Prosecutor or the Investigative Judge before and after the conviction;
c. The provisions of Article 30 (Third) ofthe Law.
Second: The Trial Chamber shall decide whether multiple sentences of imprisonment shall be served consecutively or concurrently.
Third: The period of detention or arrest of the accused person shall be counted from the moment this person was detained or arrested until he was delivered to the SICT, either for the trial or pending the result ofthe appeal. This period does not include the time, if any, during which the accused was detained by the government of another sovereign State, unless that State was acting in a primary way, at the bequest of the Iraqi Council of Ministers or the successor government, taking into consideration that the date of the recovery of sovereignty is June 1, 2004.
Rule 66: Enforcement of Sentence
First: The sentence shall be enforced in accordance with the present Rules and the provisions ofthe Code o fCriminal Procedure Nº 23 of 1971.
Second: If the Trial Chamber had previously ordered that the convicted person be on conditional release or is otherwise at liberty, and is not present when the sentence is pronounced, the Trial Chamber shall issue a warrant for his arrest. Upon his arrest, he shall be notified of the conviction and the sentence, and shall follow the procedures stipulated in Rule 68 of the present Rules and Article 151 of the Code of Criminal Procedure Nº 23 of 1971.
Rule 67: Confiscation of Property
After a sentence of conviction or incrimination, which contains specific procedures as provided in Rule 58 (Second) ofthe present Rules, the Trial Chamber shall, at the request of the Prosecutor or at its own initiative, hold a special session to determine the matter of property forfeiture stipulated in the aforementioned clause, if it does not decide to forfeit the property taking into consideration Article 307 of the Code of Criminal Procedure Nº 23 of 1971 and Paragraph 7 of Article 24 of the Law.
Rule 68: The Appeal
The appeals proceedings and the time limit for the appeal should be consistent with the Law and the Code ofCriminal Procedure Nº 23 of 1971.
a. The judgment of the Investigation Judge may be appealed before the Appeals Chamber within 15 days starting from the date he was notified or considered to be notified.
b. The appeal before the Appeals Chamber ofthe verdicts andjudgments issued by the Trial Chamber shall be in accordance with the Code of Criminal Procedure No. 23 of 1971.
Rule 69: Retrial
The retrial procedures shall be consistent with the Law and the Code of Criminal Procedure Nº 23 of 1971.
Rule 70:
These Rules shall be considered as an addendum to Law 10 of 2005 of the SICT.
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