Foreword: Lessons from the Saddam Trial
Scharf, Michael P., Case Western Reserve Journal of International Law
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. …