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Human Rights Through The Rule of Law

Women and the Iraqi High Tribunal: Q and A

"I can't sit down and remain silent when it's said that an Iraqi woman was raped," he said. "This couldn't happen while Saddam Hussein is alive."
—Saddam Hussein, in response to the prosecutor's open statements in the Anfal Campaign, New York Times, August 22, 2006

1. Why is the Iraq War Crimes Tribunal Critical to the Future of Iraqi Women's Legal Rights?

The Iraq War Crimes Tribunal (officially the Iraqi High Tribunal or IHT) is critical to establishing the rule of law in Iraq and, by the very nature of its mandate, will be critical to the future enforceability of women's rights. The Iraqi Tribunal Judges, for the first time in their careers are charged with enforcing international law on war crimes. The 2005 Iraq Tribunal statute is modeled after the Rome Treaty that established the ICC and includes the ICC gender crimes. The IHT is now part of domestic law, coexisting with the 1969 Penal Code (hereinafter "the Penal Code") provisions which govern the same (non war time) criminal behavior. Because the IHT guarantees of "gender justice" stand in such stark contrast to the discriminatory Penal Code, the Tribunal will inevitably be faced with trying to reconcile them, particularly since the IHT refers to the Penal Code for penalties for rape and mitigations of sentences for honor killings.[1] As one Tribunal Judge acknowledged, "...we are aware that our pronouncements on human rights principles in our decisions will influence domestic Iraqi law."[2]

If the Tribunal Judges assiduously enforce the human rights treaties and other international laws applicable to Iraq, they will establish a precedential legal framework for enforcing Iraq women's rights to be free from gender-based violence. Besides the IHT statute, other law which apply include United Nations Security Council Resolution 1325 (1325), the Convention for the Elimination of all Forms of Discrimination against Women (CEDAW), and the International Convention on Civil and Political Rights (ICCPR). Together or individually, the human rights laws invalidate the domestic laws which discriminate against women by perpetuating inequity and denying access to justice.

2. Why is it Important that the Iraq Tribunal Specifically Prosecute Crimes against Women Defined in the Tribunal Law?

The fact that Saddam Hussein and others are being tried for war crimes, genocide and crimes against humanity is a milestone in international justice, particularly since the Mideast has no regional human rights adjudicatory body and has never before held war crimes trials. Because a key purpose of any war crimes tribunal is to construct a record of historic accountability, it is essential that the IHT specifically prosecute the "hidden" gender crimes inflicted on women including rape and torture. No group of criminals should escape accountability for their crimes because an entire group of victims (women, who are the majority of the population) feel "ashamed" or afraid to report the crime due to its sexual nature. International law contains strong anti-discrimination and equality mandates,[3] which require the Tribunal to take all affirmative steps necessary to prosecute perpetrators of rape and other gender crimes.

Further, 1325, passed in 2000 as part of other equality mandates, requires that war crimes tribunals address gender-based violence. The Secretary-General pointed to the recent advances in gender crimes law by the ad hoc tribunals as examples and noted that it is critical that these achievements are maintained and further expanded. Other forms of violence affecting women and girls must also be recognized and adequately acknowledged in the legal regime."[4]

3. What Can Be Done Now to Urge the IHT to Prosecute for Gender Crimes?

The Tribunal had scheduled 12 separate trials for various high level perpetrators of war crimes from 1968-2003 under thematic groupings such as the Dujal massacres trial, which is concluding,[5] and the Anfal trial, scheduled to begin at the end of the summer. There is the evidence, the time, and the opportunity to arrest additional perpetrators and add gender crimes charges. However, experience both with the IHT and other tribunals make it clear that gender crimes prosecutions do not happen without advocacy efforts by the victims groups and the international human rights community. Despite the precedential role of this Tribunal in international justice, there has been no formal advocacy on women's rights or gender crimes from the international community.

In addition, to encourage women victims of gender crimes to come forward, the Tribunal must publicly implement those provisions in the statute specifically designed to encourage women to testify (including protection of the privacy of all witnesses, no corroboration for rape requirement, the taking of testimony via video from outside the country, and the right to anonymity). The Tribunal should establish the gender/psychological counseling services required by the IHT and publicize the fact that reparations are guaranteed under the new Iraq Constitution. If women victims of gender crimes over a period of 30 years are de facto excluded from transitional justice, and if the perpetrators of sex crimes are given their traditional impunity, the stigmatization of women victims/survivors of sexual violence will be legitimized.

4. Are the Iraq Tribunal Judges Enforcing Domestic or International Law?

The IHT Statute almost completely replicates the war crimes law set forth in the ICC and thus contains the most progressive codifications of gender crimes globally. The IHT specifically directs Tribunal Judges to use precedents from the other international tribunals.[6] In addition, the Judges are bound by the Iraq Constitution and international law including women's rights under 1325, ICCPR, and CEDAW.[7] Because the ICC only came into force in 2002, it has not yet issued any decisions. The Iraq Judges will be among the first to interpret and enforce what is essentially the ICC statutory language on gender crimes under genocide, crimes against humanity and war crimes.[8]

The Tribunal Judges have jurisdiction over four categories of crimes, the first three mirroring their ICC counterparts: 1) crimes against humanity (any of the IHT of crimes carried out on a "widespread" or "systematic" basis), 2) war crimes (derived from the Geneva Conventions of 1948 and the additional protocols) and 3) genocide (defined by the International Convention on the Prevention and Punishment of the Crime of Genocide). All of these categories include gender crimes (rape, sexual slavery, trafficking, and "any other form of sexual violence"). The fourth category is for other specified crimes under Iraqi law (intervention in the judiciary, wastage or spoilage of natural resources, and aggression against an Arab country).[9]

The IHT Statute charges the Judges to look to "analogous" crimes under the domestic criminal code for the penalties for the crimes enumerated in the IHT. This penalty provision raises serious issues in terms of women's rights since it is unclear whether there even are domestic crimes "analogous" to the full scope of gender crimes, particularly given the discriminatory treatment of women victims of sexual crimes and the various mitigating factors allowed.

5. In What Ways Could the Tribunal Decisions Advance the Legal Rights of Iraqi Women?

Some of the most significant advances for women's human rights in the past decade have come out of the decisions of the various war crimes tribunals and the IHT can advance women's rights both by adopting the prior precedents and by setting new ones.[10] For example, the Akayesu decision from the International Criminal Tribunal for Rwanda (ICTR) is the first conviction of rape as a crime against humanity and the first decision finding rape equivalent to torture.[11] The Akayesu precedent then led to multiple convictions of rape, outrages upon personal dignity and torture by means of rape at the International Criminal Tribunal for the Former Yugoslavia (ICTY).[12] This culminated with the codification of a progressive definition of rape as a war crime and other gender crimes in the Rome Treaty establishing the ICC.

The sixty plus Tribunal Judges have the opportunity to add to this body of international law by citing to CEDAW, 1325, and the ICCPR as support for affirmative actions regarding to prosecutions of gender crimes. In addition, Tribunal Judges may also be faced with interpreting key provisions of the new constitution including those on equality rights and the enforceability of international law. Finally, Tribunal decisions could be influential—if not determinative—on the continuing validity of various discriminatory Penal Code provisions. After the Tribunal ends, the Tribunal Judges will continue as influential Iraq jurists, which increases the potential for the Tribunal to begin the integration of international human rights jurisprudence into Iraq law.

6. How does the Iraq Tribunal Function?

The Coalition Provisional Authority (CPA) first established the Tribunal in 2003. The current Tribunal operates independently from all branches of government under a revised statute enacted by the Iraqi Transitional National Assembly on August 11, 2005, along with new criminal procedures to supplement the 1971 Iraq Criminal Procedure Law.[13] Tribunal personnel include prosecutors, defense lawyers, and some sixty plus judges, all male with the exception of one woman judge. The Tribunal is charged with prosecuting Saddam Hussein and members of his regime for specified crimes committed between 1968 and 2003. Although Iraq Criminal Courts, at least theoretically, have concurrent jurisdiction over these crimes, the Tribunal has priority over the war crimes prosecutions and can order any such cases in other criminal courts transferred back to them.[14]

The Iraq Tribunal has investigative judges and several separate chambers of trial judges, one of which is currently trying Saddam in the Dujal trial. The Tribunal follows the inquisitorial system used in Iraq (based on the French legal system), where in the first stage the investigative judges are responsible for gathering all of the evidence.[15] Thus the investigative judges are critical to bringing gender crimes prosecutions. The trial judges then hear the evidence and decide on its weight, i.e. if the evidence supports the charges. The defense team responds after hearing the evidence and charges. After a judgment is made, the final remaining stage is the appeal.

In an inquisitorial system, the trial judge is charged with deciding the facts and the legal issues. Thus it is usually judges, not lawyers, who ask the witnesses and defendants questions. The fact that experts (i.e. the judges), and not lay juries, decide facts and guilt or innocence is often given as the reasoning behind fewer legal protections for the defendant and a lesser burden of proof.

7. How does the Iraqi Tribunal differ from the International Criminal Court (ICC) and other International War Crimes Tribunals?

Unlike the ad hoc tribunals (ICTR and ICTY), the ICC is a permanent, treaty-based organization with jurisdiction over crimes within a ratifying state and over nationals of states party to the treaty. The UN Security Council may, under certain circumstances, refer crimes to the ICC that involve a non-state national or which occur on the territory of a non-signatory state, as happened with the Sudan. Under Articles 17 to 19, the ICC can prosecute only after a state demonstrates its inability or unwillingness to carry out an investigation. In the Rome Statue, there is an explicit provision for reparations and some recourse to a trust fund. Section 22 of the IHT Statue provides that victims can bring civil suits and the Iraq Constitution goes further to guarantee care and compensation for victims of the regime and victims of terrorism.[16]

The IHT Statute superimposes the adversarial system onto the existing inquisitorial Iraq legal system. While the ICC is also a mixed system, there is not the same layering of laws and the judges come from different legal backgrounds.[17] The ICC judges are multinational, whereas the Iraq Tribunal is composed solely of domestic judges. Finally, the ICC gender equality requirement of "fair representation" of women judges means that currently 39% (seven out of 18) of the judges are women, a vast contrast to the make up of the Iraq Tribunal where there is only one woman out of some 40 judges and prosecutors.

The Iraq Tribunal is similar to other tribunals, such as the ICTR, ICTY, Sierra Leone, East Timor and Cambodia in that it is prosecuting war crimes under international law over a defined period of time.[18] The Tribunal authorizing statute however, is part of the permanent Iraq Criminal Code and will remain so after the Tribunal itself is dissolved. The Rwanda and the Former Yugoslavia Tribunals were established by the United Nations and the trials are taking place outside of the countries (Arusha, Tanzania for Rwanda and The Hague, Netherlands for Yugoslavia) with experts in international law selected as Tribunal Judges. The war crimes tribunals for Sierra Leone and East Timor were also established by the United Nations, but are called hybrid tribunals because they include domestic judges from Cambodia and East Timor as well as international judges.

A very significant difference is the absence of women judges on the Iraq Tribunal. The enabling statutes for the ICTR and ICTY require gender equality in the procedures and makeup of the courts, and of the number of women judges—21% percent in Yugoslavia and 36% in Rwanda—clearly differentiating those Courts from the Tribunal, which has only one woman judge out of approximately sixty. Although there are only seven women out of 708 judges in Iraq due to the 1984 prohibition of female judges by Saddam, one critique of the Tribunal is that lawyers were appointed to sit as judges, therefore appointment of women lawyers could have been used to increase the number of women.[19]

8. How do the Gender Crimes in the IHT Statute Differ from those in the Iraq Penal Code?

The IHT Statute defines the gender crimes under its jurisdiction (regime crimes between 1968-2003) expansively and includes "women-sensitive" procedural protections such as not requiring corroboration or allowing a consent defense.[20] Under the IHT Statute, rape and other crimes of sexual violence are treated with equal gravity as other war crimes and crimes against humanity. The IHT Statute also codifies as crimes "sexual slavery, forcible prostitution, forced pregnancy, or any other form of sexual violence of comparable gravity."[21] Under the IHT Statute, rape is a "sex-neutral" crime, meaning both men and women can be victims (or perpetrators).

Ironically this very progressive Iraq law exists side by side with the most repressive sections of the Penal Code, those that cover rape and sex crimes. The Penal Code does not consider rape as a violent assault, and in fact the 1971 amended criminal procedure law clearly states that rape prosecutions can only be initiated by the rape victim or someone in her place, because rape is a "private" offence, as opposed to a public offense, meaning that the government cannot prosecute the perpetrator unless a victim comes forward.[22] The Penal Code limits rape prosecutions to those which occur within the country (except with permission of the justice minister) and excludes gender crimes committed by the regime outside Iraq such as in Kuwait or Iran (which is covered by the IHT).[23] The Penal Code defines rape as only against women, only by conventional sexual intercourse and only "serious enough" for compensation if the woman proves that she was a virgin.[24] (The hymen of women, dead or alive, is checked as part of routine forensic examinations when such charges are brought.)

Under the Penal Code, if the accused marries the victim, "any action becomes void and any investigation or other procedure is discontinued, and if a sentence has already been passed in respect of such action, then the sentence will be quashed."[25] The accused, the public prosecutor, or the victim (even a minor) can make a motion for marriage to take advantage of Article 39. Proponents of this Article argue that it enhances victims' rights since it reinstates the victim's honor after the incident of sexual violence.[26] In reality, this law merely heightens the shame of rape by making the victim forever connected to her perpetrator. It effectively compounds the devastating impact of rape on a victim.

9. How do Iraq Rape Laws and Honor Killings Impede Women's Access to Justice?

Honor crimes are acts of violence or abuse perpetuated against individuals, usually women, by male members of their community in defense of their family's honor.[27] The stigma against reporting any form of sex crime in Iraq is exacerbated and perpetuated by Iraq laws which condone the killing of rape victims by their own families.[28] The cultural and historic shame associated with sex crimes, which puts the victims in danger from their own families, was legitimized by the Penal Code provisions that mitigate sentences for honor killings.[29] These were supplemented by Saddam Hussein's Revolutionary Command Council Order Number 6 of 2001 which reads: "Considering the killing of one's wife or a close female relative (muharam) for honor reasons a mitigating factor under law," the reduced penalty is one year, or even only six months, imprisonment.[30] Such proclamations account for why women are reluctant to come to the Tribunal about gender crimes.

The UN Special Rapporteur for Violence against Women reported that more than 4,000 women have been victims of so-called "honor killings" since 1991, when Saddam Hussein introduced Article 128 of Law 111 of the Penal Code.[31] Article 128 reads:

"...The commission of an offence with honorable motives or in response to the unjustified and serious provocation of a victim of an offence is considered a mitigating excuse."

Under the Penal Code, the normal penalty for murder is life imprisonment or the death penalty, but in cases where the perpetrator murders his wife or female relative upon catching her in the act of adultery, the penalty is a maximum of three years.[32]

In 2000, the CEDAW Committee reiterated its misgivings about violence against women and particularly that it was "deeply concerned by the violence against women perpetrated through honor killings."[33] It urged the Iraqi government to condemn honor killings and "ensure that these crimes are prosecuted and punished in the same way as other homicides."[34]

The lack of international support for the Tribunal, fueled by the continuing debates about its legitimacy and procedures could prove to be short sighted. Inaction and acquiescence to the Tribunal's invisibility on gender rights will only increase the risk that Tribunal decisions, even indirectly and unintentionally, might reinforce discriminatory aspects of the Penal Code. These include Article 393, which defines rape and the various discriminatory penalty provisions for crimes against women including for honor killings.

10. How does Security Council Resolution 1325 apply to the Tribunal?

On October 31, 2000, the Security Council of the United Nations adopted Resolution 1325, a landmark document on women, peace, and security.[35] Citing CEDAW, the Geneva Convention, the Beijing Declaration and Platform for Action[36] as well as other international consensus documents, 1325 reaffirmed the international community's commitment to gender equality. The adoption of 1325 sent a strong message to the entire international community, and particularly UN Member States, that efforts must be made to protect the human rights of women and to adopt a gender perspective in pre-conflict, conflict, and post-conflict situations.

Resolution 1325 is legally binding on Iraq. It specifically denounces gender-based violence and requires accountability for perpetrators of such violence. However, by maintaining a gender-discriminatory political and legal regime and failing to take affirmative measures to bring justice to victims of sexual violence, Iraq has clearly fallen short of its obligations under 1325.

In its reports and resolutions pertaining to Iraq, the Security Council has made reference to 1325 and the importance of protecting women's rights in Iraq. In Resolution 1483, for example, the Security Council encouraged the efforts to create a representative government in Iraq that affords equal rights to people, regardless of their gender, and made specific reference to 1325.[37] In a response report to Resolution 1483, "the need for an accounting for past crimes, respect for human rights and the rule of law" was emphasized.[38] Indeed, the report stated that "providing a mechanism whereby the Iraqi people can come to terms with the past are urgent priorities."[39] In discussing the security situation in Iraq, the report noted that women particularly are affected by the fear of violence.[40] "Immediately after the conflict, many women were confined to their homes in the cities amidst reports of increased harassment and violence directed towards them."[41] The Security Council has aptly acknowledged the important role that Resolution 1325 must take in reconstructing Iraq. Moreover, the United Nations recently heard testimony that Resolution 1325 will be relied upon and argued within the Iraqi High Tribunal. As such, new legal and political institutions in Iraq, including the Iraqi High Tribunal, cannot ignore this critical international mandate.

Proponents of women's rights in Iraq also recognize that insecurity and fear of violence are primary barriers to women's equality. According to Women for Women International's paper on women in post-conflict Iraq, "Reducing the level of violence is essential to creating a stable foundation for women's broader social participation."[42] Women Waging Peace advocates for the creation of support organizations to provide aid to victims of sexual crimes.[43] It also noted that, under the auspices of 1325, all state and non-state actors must be held accountable for crimes against women. [44]

11. Why Haven't Human Rights Organizations Been More Active with the Tribunal and how is this changing?

A number of the major international human rights organizations have chosen not to proactively support the Tribunal in Iraq, opting instead to criticize the Tribunal's shortcomings. An obvious concern for many human rights organizations is the Tribunal's ability to impose the death penalty. Other concerns include doubts as to the fairness and legitimacy of the adjudicatory process, as well as a fear that support of the Tribunal may be viewed as approval or support for the U.S. invasion of Iraq.[45] These concerns, however legitimate, were not weighed against the Tribunal's potential to legitimize and enforce women's rights in Iraq and to set persuasive legal precedent for future tribunals.

Given the challenges posed in creating positive legal reform aimed at protecting the rights of women, it is clear that a broad-based coalition of Iraqi groups and NGOs and members of the international community must cooperate to encourage Tribunal Judges to adopt a progressive approach to the way gender crimes are tried during the war crimes proceedings and after. An effort by the international community to utilize the Tribunal as an avenue of justice for Iraqi women has recently emerged. A meeting of human rights experts, gender and conflict experts, as well as Iraqi groups in London in June 2006 led to the establishment of a new organization, the "International Coordination for Gender Justice in Iraq", which will examine the Tribunal and possible strategies for working within the existing framework to protect the rights granted to women under the IHT Statute. This coalition will submit amicus briefs to the court urging the implementation of gender sensitive law in Iraq. Such a massive legal effort can only be successful when matched with strong advocacy to pressure judges to adhere to best practices in international law and affect the social climate around gender crimes and discrimination.

12. Why is the Global Justice Center working with the Tribunal?

Although we understand the serious concerns about the Iraq Tribunal—and concerns about other tribunals—the GJC is committed to advocating for the enforceability of Iraqi women's legal rights on all fronts. The Tribunal is open to this gender advocacy and the Court itself has requested gender and international law training as well as input from Iraqi women's organizations. The unique and difficult circumstances surrounding the Tribunal and the Judges trying these crimes increases the pressure placed on them. Their desire to promote justice and the rights of Iraqi women must be strengthened by support from the international community.

The judiciary can play a key role in promoting equality, yet is rarely or ever an independent force in calling for quotas and women's participation during the beginning stages of democracy building. Whatever rights Iraqi women have been given by the new Iraqi government and in the Tribunal authorizing statute, those rights will have no effect unless they are enforceable. It is in this regard that the Tribunal is invaluable; by giving effect to these rights, the Tribunal has the power to change the political, cultural and legal norms that currently govern the lives of Iraqi women. The Tribunal is also an avenue for creating a new public dialogue,[46] both in Iraq and throughout the region and the world on the crimes of violence perpetrated against women and the impunity granted to these perpetrators, both under the Saddam regime and which continue to the present day.

The Global Justice Center takes a calculated approach to the judiciary: the GJC approaches the issue of the enforcement of women's rights not as a purely political question, but as a means of providing tools for women leaders (not only lawyers), promoting cross-fertilization among regions and disciplines, and devising innovative and strategic ways to enforce women's rights through the judiciary.

As a new legal body that has yet to render a decision, the IHT is not bound by past discriminatory precedent; it is a blank slate, one which ought to strive to build a better Iraq and one that should recognize the importance of justice for women.

  • [1] Statute of the Iraqi High Tribunal, art. 24 (Oct. 18, 2005) [hereinafter IHT Statute].
  • [2] Letter from Ruad Juhi, Chief Investigative Judge, Iraqi High Tribunal, to Janet Benshoof, President, Global Justice Center (June 20, 2006) (on file at the Global Justice Center).
  • [3] See the Geneva Conventions of Aug. 12 1949; "Convention on the Elimination of All Forms of Discrimination Against Women," U.N. Doc. A/RES/34/180 (Sept. 3, 1981); "Women, Peace and Security," S.C. Res. 1325, U.N. Doc. S/RES/1325 (Oct. 31, 2000); "International Covenant on Civil and Political Rights," (Dec. 16, 1966), 999 U.N.T.S. 171; "Universal Declaration of Human Rights," U.N. G.A. Res. 217 (Dec. 10, 1948).
  • [4] The Secretary-General, Report of the Secretary General on Women, Peace and Security, para. 24, U.N. Doc. S/2002/1154 (16 October 2002).
  • [5] The defense will present its closing arguments on July 10.
  • [6] "To interpret Articles 11, 12, 13 of this law, the Cassation Court and Panel may resort to the relevant decisions of the international criminal courts." IHT Statute, art. 17, para. 2.
  • [7] Iraq has reservations entered in regard to Articles 2(f), 2(g), 9, and 16 of CEDAW. Despite the reservations, there is still an obligation to follow the Convention and, additionally, it can be argued that some of the reservations are invalid as incompatible with the objective of the Convention.
  • [8] Rome Statute of the International Criminal Court, art. 7, para. 1(g), art. 8, para. 2(b)(xxii), art. 8, para. 2(e)(vi), U.N. Doc. A/CONF.183/9 (July 17, 1998).
  • [9] IHT Statute, arts. 11-14.
  • [10] Kelly Askin, A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003, 11 Hum. Rts. Br. 16 (2004).
  • [11] "The trial Chamber noted that sexual violence is "within the scope of 'other inhuman acts' as crimes against humanity, 'outrages upon the personal dignity' off the war crimes provision of the Statute, and serious bodily or mental harm' of the genocide prescriptions." While rape was not charged as torture in the indictment, the Trial Chamber compared the act of rape to torture, stating that rape is a "form of aggression" and that the elements of the crime "cannot be captured in a mechanical description of objects and body parts." The Chamber also recognized that "[l]ike torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, and control or destruction of a person. Like torture rape is a violation of personal dignity and rape in fact constitutes torture" when all of the elements of torture are met." Alex Obote-Odora, Rape and Sexual Violence in International Law: ICTR Contribution, 12 New Eng. J. Int'l & Comp. L. 135, 147-148 (2005).
  • [12] According to the United Nations Development Fund for Women (UNIFEM), "[b] y March 1999, the ICTY had indicted twenty-seven individuals in relation to 130 individual crimes that involved either rape or sexual assault." UNIFEM Women, War, Peace and Justice available at http://www.womenwarpeace.org/issues/justice/justice.htm (last visited June 12, 2006).
  • [13] Rules of Evidence and Procedure for the Iraq High Tribunal (Oct. 18, 2005).
  • [14] IHT Statute, art. 29.
  • [15] M. Cherif Bassiouni, Post-Conflict Justice in Iraq: An Appraisal of the Iraq Special Tribunal, 38 Cornell Int'l L.J. 327, 381 (2005).
  • [16] "First: The State shall guarantee care for the families of the martyrs, political prisoners, and victims of the oppressive practices of the defunct dictatorial regime. Second: The State shall guarantee compensation to the families of the martyrs and the injured as a result of terrorist acts." Iraq Const., art. 132 (2005).
  • [17] Claus Kress, The Procedure Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise, J. Int'l Crim. Just. 603 (2003).
  • [18] In the past 15 years there have been five Tribunals created that could be considered international tribunals—Rwanda, the Former Yugoslavia, East Timor, Sierra Leone, Cambodia as well as hearings for fact finding and historical record, such as the Truth and Reconciliation Commission in South Africa and the hearings for the Comfort Women during World War II. The Iraq Tribunal is similar to Cambodia, Sierra Leone and East Timor in that it is a hybrid court with a mix of international and domestic prosecutors, judges and defense attorneys.
  • [19] United Nations/World Bank Joint Iraq Needs Assessment 47 (October 2003) available at http://lnweb18.worldbank.org/mna/mena.nsf/Attachments/
    Iraq+Joint+Needs+Assessment/$File/Joint+Needs+Assessment.pdf    .
  • [20] IHT Statute.
  • [21] Id., art. 12, para. 1(g).
  • [22] Law on Criminal Proceedings with Amendments (1971).
  • [23] Iraqi Penal Code (1969) [hereinafter Penal Code].
  • [24] Id. para. 393(4).
  • [25] Id. para. 398.
  • [26] Iraq Legal Development Project, The Status of Women in Iraq: An Assessment of Iraq's De Jure and De Facto Compliance with International Legal Standards 33 (July 2005).
  • [27] Nazand Begikhani, Honour-based Violence among the Kurds: the Case of Iraqi Kurdistan, in "Honour" Crimes, Paradigms, and Violence against Women 210 (Lynn Welchman & Sara Hossain eds., 2005). Note: Honor crimes are not just limited to murder; they are also at times supported by women as well as men.
  • [28] Penal Code para. 128.
  • [29] Penal Code, paras. 409, 128, 130-132. (This was amended in Iraqi Kurdistan to remove the provisions for mitigated sentences for honor crimes.)
  • [30] Revolution Command Council Order Number 6 (2001).
  • [31] U.N. Commission on Human Rights, Integration of the Human Rights of Women and the Gender Perspective, U.N. Doc. E/CN.4/2002/83/Add.1 (Jan. 28, 2002) (prepared by Radhika Coomaraswamy).
  • [32] Penal Code, art. 409.
  • [33] Committee on the Elimination of Discrimination against Women, Report of the Committee on the Elimination of Discrimination against Women, para. 193, U.N. Doc. A/55/38 (2000).
  • [34] Id. para. 193-194.
  • [35] S.C. Res. 1325, U.N. Doc. S/RES/1325 (Oct. 31, 2000).
  • [36] Fourth World Conference on Women, Sept. 4-15, 1995, Report, U.N. Doc. A/ CONF.177/20 (Oct. 17, 1995)
  • [37] S.C. Res. 1483, para. 5, U.N. Doc. S/RES/1483 (May 22, 2003).
  • [38] The Secretary General, Report of the Secretary-General pursuant to paragraph 24 of Security Council resolution 1483, para. 13, U.N. Doc S/2003/715 (July 17, 2003).
  • [39] Id. para. 44.
  • [40] Id. para. 35.
  • [41] Id. para. 49.
  • [42] Women for Women International, Windows of Opportunity: The Pursuit of Gender Equality in Post-War Iraq 10 (Jan.23, 2005) (re-released in March 2005).
  • [43] Women Waging Peace, Winning the Peace Conference Report: Women's Role in Post-Conflict Iraq (April 2003), available at http://wwics.si.edu/events/docs/ACF34.pdf.
  • [44] Id.
  • [45] See e.g. Human Rights Watch, The Former Iraqi Government on Trial (Oct. 16, 2005), available at http://hrw.org/backgrounder/mena/iraq1005/iraq1005/iraq1005.pdf.
  • [46] See International Center for Transitional Justice, Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (May 2004), available at http://www.ictj.org/images/content/1/0/108.pdf. This report was based on focus groups and individual survey responses taken after the fall of Baghdad. Although women made of 45.3 percent of people interviewed, they never met as a separate focus group. Additionally, none of the questions addressed gender crimes at all. See Appendix 2.