Foreword: lessons from the Saddam trial.

• Author: Scharf, Michael P.

1. INTRODUCTION

   The emerging system of international criminal justice is composed of a spectrum of institutions, from purely international courts (such as the International Criminal Court and the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia) to hybrid international-domestic tribunals (such as the ad hoc Court for East Timor, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia) to purely domestic courts and war crimes commissions. A recent addition to that list that falls somewhere between hybrid tribunals and domestic courts is the so-called "internationalized domestic tribunal," exemplified by the Bosnian War Crimes Chamber in Sarajevo and the Iraqi High Tribunal (IHT) in Baghdad.

   The IHT merits characterization as an internationalized domestic tribunal because its statute and rules of procedure are modeled on the U.N. war crimes tribunals for the former Yugoslavia, Rwanda, and Sierra Leone, and its statute provides that the IHT is to be guided by the precedent of the U.N. tribunals and that its judges and prosecutors are to be assisted by international experts. (1) But the IHT is not fully international or even international enough to be dubbed a hybrid court, since it is seated in Baghdad, its prosecutor is Iraqi, it uses the Iraqi Criminal Code to supplement the provisions of its statute and rules, and its bench is composed exclusively of Iraqi judges.

   Internationalized domestic tribunals are seen as a potentially vital supplement to the International Criminal Court, which lacks the resources and personnel to prosecute all but a tiny portion of cases in situations where the domestic system is unable or unwilling to do so. As one of the first internationalized domestic tribunals, the perceived success or failure of the IHT is likely to have an affect on the future use of that model of international justice.

   Unfortunately, the IHT was snake-bitten from its conception. Many countries, international organizations, and human rights NGOs opposed the IHT from the start because it followed an invasion that they believed to be unlawful, provided for the death penalty, and was seen as preventing deployment of a truly international court. And then, once the Dujail trial began, the proceedings were marred by the assassination of three defense counsel, the resignation of the presiding judge, the boycott of the defense team, the disruptive conduct of the defendants, and finally by an execution that everyone agrees was an utter fiasco. In light of all that went awry, attempting to provide an objective appraisal of the IHT is a bit like assessing the tragic evening of April 14, 1865 by inquiring, "Well, other than that, Mrs. Lincoln, how did you enjoy the show?"

   But an objective assessment of the IHT would have to acknowledge that there were in fact some positive aspects as well. For example, the IHT Statute and Rules represent a novel attempt to blend international standards of due process with Middle Eastern legal traditions. It is particularly noteworthy that the Dujail trial was the first-ever televised criminal proceeding in the Middle East, enabling millions of people throughout the region to see the process of justice unfold, warts and all. While the judges of the IHT might not have followed every provision of the tribunal's internationally-inspired Statute and Rules as scrupulously as they should have, the judges bent over backward to grant Saddam Hussein the right to personally cross-examine his accusers and make statements to the bench--an opportunity he took advantage of thirty-nine times during the trial. And while the media reported that the court-appointed public defenders who represented the defendants while their retained lawyers boycotted most of the trial were not up to the task, in fact they were ably assisted by a distinguished British judge who had previously served as defense counsel in cases before the Yugoslavia and Rwanda tribunals. The four-hour closing argument delivered by the public defenders was particularly impressive and ultimately led to the acquittal of one of the seven Dujail defendants and relatively light sentences for three others.

   Most importantly, the 298-page, single-spaced opinion of the Trial Chamber, (2) which was issued on November 22, 2006, meticulously described the court's findings of fact and conclusions of law, with numerous citations to the past decisions of international tribunals. To assist the judges in preparing their opinion, the U.S. Embassy's Regime Crimes Liaison Office provided translations of the major war crimes judgments of our time, from Nuremberg to The Hague--the first time this body of jurisprudence has ever been made available in Arabic.

   The trial chamber's opinion--the first fifty-four pages of which are devoted to responding to the numerous motions and arguments of the defense counsel--addresses many of the objections of the tribunal's critics. For example, the opinion convincingly explains why recusal of the presiding judge was not warranted. While the defense team has publicly complained that it did not have access to all of the evidence in a timely manner, the opinion documents that both the defense and prosecution were provided the entire dossier prepared by the investigative judge, containing all of the evidence the judges considered in arriving at their verdict, three months before the trial commenced.

   The opinion also explains that the assassinations of the three defense counsel could have been prevented if the three had accepted the security measures that protected the judges, witnesses, prosecutors, and the rest of the one hundred-member defense team. And throughout, the opinion applies the "beyond reasonable doubt" standard, which should mollify critics who had complained that this standard was not explicitly provided for in the IHT Statute or Rules.

   Two points stand out in the Dujail Trial Chamber opinion for establishing noteworthy legal precedent. First, Saddam's main defense was that as a leader, he was entitled to take action against a town that had tried to assassinate him and was populated by insurgents and terrorists allied with Iran at a time when Iraq and Iran were at war. The opinion details why the actions taken against the town of Dujail and its inhabitants "was not necessary to stop an immediate and imminent danger" and how the actions were disproportionate to the threat. In this way, the opinion makes clear that there is a line to be drawn in every country's fight against terrorism and that Saddam Hussein and his co-defendants crossed that line. Second, it is significant that the opinion begins with the case against Awad al-Bandar, the president of Saddam's Revolutionary Court, who was charged with using his court as a weapon by conducting an "illusionary trial" and then ordering the execution of 148 villagers of Dujail, including several individuals who were under eighteen years of age. Ironically, al-Bandar was convicted of doing the very thing critics have accused the IHT of doing: presiding over a trial devoid of due process of law. But the many details of the case against Al-Bandar contained in the Dujail Trial Chamber opinion make it clear how fundamentally different the IHT is from Saddam Hussein's Revolutionary Courts. In any event, the legal analysis of the case against...