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Chinese Journal of International Law Advance Access originally published online on June 6, 2008
Chinese Journal of International Law 2008 7(2):459-483; doi:10.1093/chinesejil/jmn018
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© The Author 2008. Published by Oxford University Press. All rights reserved

COURTS & TRIBUNALS

The Legal Findings of Crimes against Humanity in the Al-Dujail Judgments of the Iraqi High Tribunal: A Forerunner for the ICC?

Bernhard Kuschnik *

The Iraqi High Tribunal's (IHT) trial-and-appeal judgments in Al-Dujail against Saddam Hussein et al. contain surprisingly detailed findings in international criminal law dogmatic, particularly regarding the elements of crimes against humanity. Since the statutory legal basis of crimes against humanity on which Al-Dujail is grounded is close to identical to its ICC counterpart set forth in Article 7 of the ICC Statute, the interpretations brought forward by the IHT might be of high relevance for future interpretation of Article 7 of the ICC Statute. This article discusses possibilities and limits thereof. Particular focus has been set on the problems of what shall be meant by "multiple" commissions of acts set forth in the legal definition of "attack", and what level of mens rea shall be required for "murder" as a crime against humanity.

* Legal Clerk at the Landgericht (Regional Court) Düsseldorf, Germany; First State Examination in Law, Oberlandesgericht (Higher Regional), Düsseldorf; LL.M., University of Aberdeen, Scotland, UK; PhD (aw.), Eberhard Karls University of Tübingen, Germany (email: b_kuschnik{at}gmx.de). This paper was completed on 25 March 2008. Frequently used abbreviations are: ICC for "International Criminal Court"; ICTR for "UN International Criminal Tribunal for Rwanda"; ICTY for "UN International Criminal Tribunal for the Former Yugoslavia"; IHT for "Iraqi High Tribunal", also known as "Iraqi Higher Criminal Court" (IHCC) and further formerly known as "Iraqi Special Tribunal" (IST); IMT for "International Military Tribunal" (Nürnberg).


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