More Signs that Sovereignty is Illusory: Iraqi Judges Not Permitted to Make Judgments

[ In a related story from the July 1 issue of the Guardian by Rory McCarthy, entitled, “US will override Baghdad in war on terrorism”:

American commanders will risk launching high-profile military actions at targets in Iraq even if they go directly against the wishes of the new Iraqi government, a senior US general said yesterday.

Lieutenant General Thomas Metz, the second most senior American officer in Iraq and the force’s tactical operations commander, said the US military was prepared to risk provoking “friction” with the new government in strikes against “professional terrorists.”

His frank admission, just two days after sovereignty was handed back to the Iraqis, cuts to the heart of a likely source of significant political disagreement between the fledgling government and the US military in the near future.

–BL ]

Prisoner 27075 learns limits of sovereignty

June 28, 2004 | Financial Times

by Nicolas Pelham in Baghdad

Iyad Akmush Kanum, 23, learnt the limits of sovereignty on Monday when US prosecutors refused to uphold an Iraqi judges’ order acquitting him of attempted murder of coalition troops.

US prosecutors said that he was being returned to the controversial Abu Ghraib prison because under the Geneva Conventions they were not bound by Iraqi law.

A few hundred metres from where outgoing administrator Paul Bremer formally ended the US occupation of Iraq on Monday, Mr Kanum – prisoner number 27075 – cowered handcuffed on a backroom floor in the Central Criminal Court, where Iraqis are tried for attacks against coalition forces.

“Iraqis who have been detained as a security threat can still be detained until firstly the coalition leaves or secondly they are considered to be no longer a threat,” said Michael Frank, deputy special prosecutor for Multinational Force-Iraq (MNFI), who oversaw the case dressed in military fatigues.

The prosecution alleges Mr Kanum was in the car from which a gunman was firing an AK-47 rifle at Iraqi and coalition troops on the outskirts of Baghdad. Mr Kanum denies the charges, saying it was a case of mistaken identity.

The Central Criminal Court is a hybrid legal institution, created by the American-led occupation, in which US lawyers prepare cases for Iraqi prosecutors to present to Iraqi judges, who were in turn chosen by the coalition.

It tries cases based on Iraqi law and coalition decrees.

Despite the end of the US occupation on Monday, US prosecutors said the Court would continue unchanged after the handover.

It was created by Mr Bremer last June to hear “significant security trials” and enable occupation troops to testify without leaving the Green Zone. Saddam Hussein is among the detainees intended to enter its dock.

Many Iraqis see the Central Criminal Court as a creature of the occupation which must be abolished now the US has handed sovereignty back to Iraqis.

Faisal Estrabadi, an Iraqi lawyer, said yesterday after the refusal to release Mr Kanum: “If the Iraqi courts have acquitted an individual he must be released. Anything else is a violation of sovereignty.”

“Iraq cannot be one large Guant?namo Bay.”

He added: “The Geneva Conventions no longer apply as of 10.26 this morning. Under UN Resolution the occupation has ended and the laws of war no longer apply.”

However Mr Frank said the measures were necessary because judges and prosecutors were reluctant to sentence Iraqis for attacking coalition forces.

Another prosecutor, Maher Soliman, an Egyptian-born US attorney, also expressed frustration.

“We could have established our own military court and sentenced them the way we see fit,” he said. “We didn’t want to do that. We wanted Iraqis to run the court.” Mr Soliman was initially contracted as an interrogator at Abu Ghraib jail.

Under laws introduced by the coalition, possessing illegal weapons carries a minimum sentence of 30 years and maximum of life imprisonment, but Iraqi judges routinely sentenced detainees to only six months, they said. “We have the feeling they’re not putting their heart into it,” said Mr Frank.

The court also sparked recent controversy after it was used to issue arrest warrants for rebel cleric Moqtada al-Sadr, and 15 members of Ahmed Chalabi’s Iraq National Congress, on charges including fraud and kidnapping. Last week the court issued an arrest warrant for another member of the Governing Council, Karim Mohammedawi, after he expressed support for Mr Sadr.

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