Global Policy Forum

It is often said that just as courts try cases, so too do cases try courts. As the first trial before the Iraqi High Tribunal, the Dujail Case was the test-run for this novel judicial institution. The Iraqi High Tribunal (IHT) joins the War Crimes Chamber of the Court of Bosnia and Herzegovina as the first of a new breed of domestic tribunals that combine elements of international and domestic war crimes courts. Although it sits in Baghdad and its judges are all Iraqi, the IHT is independent from the ordinary Iraqi court system, it is assisted by international advisers, and its constituent instruments incorporate the definitions of crimes and due process rights contained in the statutes of the existing international war crimes tribunals and stipulate that the precedent of those tribunals are to guide the decisions of the IHT. In the future, internationalized domestic tribunals like the IHT may play an increasingly important role in the growing accountability web for atrocity crimes that also includes the International Criminal Court, the Security Council-created ad hoc war crimes tribunals for the former Yugoslavia and Rwanda, the U.N.-created hybrid war crimes tribunals for Sierra Leone, East Timor, and Cambodia, and ordinary national courts.

After the Nuremberg Trial sixty years ago, Chief Prosecutor Robert Jackson reported to President Truman that despite the many errors and missteps that occurred during the proceedings, he was consoled by the fact that the lessons from the WWII war crimes tribunal would be instructive for the future. In that spirit, on October 6-7, 2006, the Frederick K. Cox Center at Case Western Reserve University School of Law hosted an international conference and experts meeting titled "Lessons from the Saddam Trial." The meeting was co-sponsored by the International Bar Association and the Irish Centre for Human Rights, and was designated a Centennial Regional Meeting of the American Society of International Law, a Regional Conference of the International Law Association (American Branch), and the Annual Meeting of the International Association of Penal Law (American National Section). In addition to a number of leading academics, the two dozen expert participants included the Ambassador of Iraq to the United States, the Executive Director of Human Rights Watch, the Executive Director of the International Bar Association, the former Director of the Regime Crimes Liaison Office, the Deputy Director of the State Department Office for War Crimes Issues, a human rights observer who attended the Dujail trial, an advisor to Saddam Hussein's defense team, the former Chief Prosecutor of the Special Court for Sierra Leone, the legal advisor to the Chambers of the International Criminal Tribunal for Rwanda, the former Principal Public Defender of the Special Court for Sierra Leone, and the former Chair of the Drafting Committee for the International Criminal Court.

Although the views of the individuals who participated in the conference and experts meeting diverged on many points, they all agreed that much can be learned from the way the Dujail trial unfolded, and that these lessons can help improve the way the Iraqi High Tribunal tackles its upcoming trials, as well as the way the international community can help domestic prosecutions of former leaders accused of atrocities in other parts of the world. While not specifically endorsed by the participants, this document reflects the general points of consensus that emerged from the experts meeting. The articles contained in the upcoming symposium issue of the Case Journal of International Law (available in August 2007) provide further elaboration and analysis of these ten lessons.

Lesson # 1: There should be a presumption against undertaking domestic war crimes trials in countries languishing in a conflict environment.

The International Criminal Court's "complementarity regime" reflects international recognition that domestic trials have advantages over international trials and are to be preferred unless the national courts are unable or unwilling to prosecute. At the same time, it must be recognized that in the best of circumstances, undertaking international war crimes trials is arduous; in a country plagued by sectarian violence and devoid of reliable security mechanisms, the premature launching of such a trial can be reckless and potentially futile. It also runs the risk of negating the potential benefits to the broader criminal law system. In such circumstances, a more responsible and viable option may have been to utilize a neutral jurisdiction, preferably in the relevant region. In the current IHT trials, extreme and immediate steps must be taken to guarantee the protection of defense counsel, as well as the judges, prosecutors and witnesses - whether they desire such protection or not.

Lesson #2: Post-conflict countries that do undertake domestic war crimes trials need unbiased international assistance.

It is a misnomer to refer to the Iraqi High Tribunal as a "domestic" court. Behind the scenes, the United States played a crucial role in drafting the Court's Statute, collecting evidence to be used by the prosecution, and providing both security and financing to the Court. Although the United States, as an occupying force, should not have been the one to unilaterally play this role, international assistance for a domestic war crimes tribunal following the fall of an authoritarian regime is indispensable. In the future, transitional justice should be a key goal that attracts legal and administrative support from across the international spectrum. Serious consideration should be given to foregoing the death penalty as the price for obtaining international support and involvement. The international community should provide substantial training in international criminal law to jurists, including defense attorneys, serving on domestic war crimes tribunals. An international perspective on substantive and procedural law concerning crimes of genocide, war crimes, and crimes against humanity is essential, and international best practices serve to supplement established domestic norms to provide an integrated model.

Lesson #3: Steps should be taken to further internationalize the Iraqi High Tribunal.

Like the Statute of the War Crimes Chamber of the Court of Bosnia and Herzegovina, Article 3(5) of the IHT Statute provides for the appointment of one or more foreign judges to join the Iraqi judges on the bench, but without explanation none were ever appointed. Such an appointment of a distinguished Arabic-speaking judge from the region would greatly promote the perception of the IHT as a fair and competent judicial institution, without sacrificing the essential Iraqi character of the tribunal. In addition, the Statute provides for the appointment of international advisers to assist the judges, prosecutor, and defense team. To date, the identities of the non-US advisers working with the Tribunal have been kept confidential for their protection, but this has led to the misperception that the only foreign advisers are members of the US Department of Justice Regime Crimes Liaison Office, which in turn makes the Tribunal appear to be an American-controlled enterprise. In future trials, more advisors selected by respected NGOs such as the International Bar Association should be recruited to assist the Tribunal, and their contribution (if not their identities) needs to be made public.

Lesson #4: Steps should be taken to strengthen the independence of the Iraqi High Tribunal.

An independent and impartial court is a fundamental prerequisite for meeting international standards of fairness in a trial. Any appearance of government influence is a damning indictment of a court's independence. During the Saddam trial, there were several instances in which the government made inappropriate comments and attempted to interfere with the proceedings. Article 4(4) of the IHT Statute, which provides that the Iraqi Presidency Council may transfer judges from the IHT to the Higher Judicial Council for any reason, should be amended. Judges should only be removable for cause and only through a decision of the other IHT judges, not the unfettered whim of the Executive branch. In addition, Article 33, which provides that no person who was a member of the Ba'ath party shall serve as a judge or other officer of the IHT, should be revised to make clear that removal of judges on grounds of former Ba'ath party membership shall occur only via the IHT's internal fact finding and disciplinary procedures.

Lesson #5: Domestic war crimes trials should be kept short and focused.

Domestic war crimes courts should be judicious in deciding the charges brought against a defendant, particularly a Head of State, and in deciding the best sequence of cases. The Court must be very conscious of the balance between lengthy delays needed to adequately prepare for trial and the rights of potential defendants held for extended periods pending trial. The legal predisposition to charge all the crimes attributable to an individual in one conglomerated case can lead to overly long trials, while the practice of charging specific situations will generally necessitate repetitive trials of senior officials. In any event, the length of trial will be a critical factor in the public perceptions of the process. The IHT was correct in selecting, as its first case against Saddam Hussein, a relatively straightforward incident of criminality. The Dujail case was manageable and the documentary evidence was remarkably strong. This enabled the Court to more directly focus its case. On the other hand, the execution of Saddam Hussein following the Dujail verdict deprived victims of seeing him stand trial on other much more serious charges.

Lesson #6: Pre-Trial Motions need to be resolved as they arise.

Consistent with Iraqi and international law, Saddam's defense counsel filed a series of motions addressing issues such as the impartiality of the judges and access to witnesses and documents. One of the most glaring shortcomings of the Court was its failure to articulate a response to these motions until the final Trial Chamber opinion was issued at the end of the Dujail trial. The Court's silence significantly weakened its transparency and undermined the credibility of the judicial process. In future trials, the IHT should make it a practice to issue written opinions addressing such issues as they arise, consistent with the normal practice of Iraqi courts and the international war crimes tribunals. In addition, the IHT should maintain a regularly updated list of all motions filed and all scheduling decisions.

Lesson #7: Domestic War Crimes Tribunals must utilize accepted tactics to maintain control of the courtroom without trammeling on the rights of the defense.

Trying former leaders is always a messy affair, especially when a decision has been made to televise the proceedings gavel-to-gavel, and the defendants have indicated an intention to disrupt the trial, distract public attention from the evidence against them, and turn the televised trial into a political stage. To ensure decorum and protect the integrity of the process, the judges in a domestic war crimes trial should be prepared to take a number of steps, which have been undertaken successfully by other tribunals.

First, stand-by-counsel should be appointed at the start of the trial. They should be trained and assisted by international advisors. At the start of the trial, the judges should explain the existence of the stand-by counsel, release general information about their qualifications and experience, and describe the conditions in which they will be asked to take over for retained defense counsel. The use of such stand-by counsel had been successfully employed at the Yugoslavia Tribunal, Rwanda Tribunal, and Special Court for Sierra Leone. The very existence of such stand-by public defenders can deter misconduct by the Defense, since the defense lawyers know they can be replaced if necessary at a moment's notice. In addition, if misconduct persists after due warning, the Tribunal should not hesitate to hold retained counsel in contempt of court and subject them to appropriate disciplinary sanctions for conduct that would merit such action in an ordinary court. In such cases, the Presiding Judge needs to dispassionately explain in open court why the steps taken were warranted.

Second, defendants must be warned that they will lose their right of self-representation (or in the Iraqi context, their right to ask follow up questions after their lawyers are finished questioning a witness) and may face expulsion and other sanctions if they act disruptively or inappropriately in the courtroom. Persistent disruption after such a warning should result in temporary exclusion, followed by a calibrated response proportionate to the degree and persistence of disruption. If the defendant is expelled from the courtroom, he must be permitted to follow the courtroom proceedings and be able to speak with counsel remotely via communications link.

Lesson #8: The IHT Appeals process must be sufficiently deliberative.

The timing and substance of the Appeals Chamber decision was one of the most controversial aspects of the Dujail trial. The IHT should maintain a verbatim written transcript of court proceedings, which should be made available to the prosecution and defense in a timely manner so that they can prepare an appeal. Sufficient time must be allocated to all parties to raise specific allegations of factual or legal error. The Appeals Chamber decisions must sufficiently address each legal and factual issue raised in a detailed manner. The time required to compose the Appeals Chamber decision should be sufficient to prepare the opinion, and must not be driven by external political or emotional factors unrelated to the facts of the case.

Lesson #9: Domestic War Crimes Tribunals must make gender justice a priority.

Domestic war crimes tribunals should ensure fair representation of women judges, prosecutors and other staff. They must also include individuals in the Registry (including victims and witnesses units), Chambers, and Prosecution with legal expertise in sexual and gender violence, as well as expertise in trauma related to crimes of sexual violence. Such provisions recognize the fact that many of the victims of war crimes and related atrocities are women, and that women jurists, prosecutors, and other court staff bring important perspectives to the gender-crimes that such Tribunals should be prosecuting.

War crimes tribunals are designed not just to prosecute the leaders of regimes that have engaged in mass violations of humanitarian law, but also to serve as a model for a newly emerging judicial system by employing international rules for the protection of the rights of the defendant and standards of due process. They should also serve as a model of gender equality, by appointing women to serve visible roles as judges, prosecutors, and other figures of prominence. Domestic war crimes tribunals should disclose the gender representation of each trial bench, along with other basic information about the qualifications and experience of the judges (but not put them at risk by disclosing their identities). The same should be disclosed with regard to the prosecution office, registry and defense bar. Just as it is important that prominent members of government be women, so too should women be seen playing a prominent role in war crimes tribunals. Domestic war crimes tribunals should also provide, both before, and during trials, trainings for judges, prosecutors and other tribunal players, on gender sensitivity and dealing with sexual violence. Efforts must also be made to insure that such tribunals provide an enabling environment for victims of sexual violence prior to, and during their testimony, and keep victims of sexual violence informed about court proceedings thereafter. Prosecutors and investigating judges must make prosecuting and investigating gender crimes a priority from the outset.

Holding perpetrators of mass violations against women accountable for their acts has been a slow and tortuous process. Experience has shown that including women judges in war crimes tribunals particularly makes a difference. Tribunals should find creative and pro-active ways to bring around a local populace, rather than concluding that said society is just "not ready for this". Outreach to women in the diaspora should also be considered where it may be thought to be particularly difficult to enlist local women in visible roles. While gender parity and justice is never convenient, it is a fundamental aspect for lasting and credible justice.

Lesson # 10: Domestic War Crimes Tribunals must make effective public outreach a priority.

Domestic war crimes tribunals should create a public outreach office to provide regular briefings on the Court and trial developments. Not only would this enhance public knowledge about Court proceedings, it would impede the constant speculation, misinformation, and rumors that so often overwhelm high-profile trials. The IHT failed to create an effective public outreach office. Consequently, Iraqi citizens and the international community were essentially left to use their imaginations when judging the Court's proceedings. As evidenced by the decision to televise the proceedings, the IHT was designed in part to serve an educative function. But the procedural decisions of the IHT were usually shrouded in mystery, as little attempt was made to clarify the many public misconceptions as they arose during the Dujail trial. If the Iraqi people are ever going to feel ownership over the IHT proceedings, and if the international community is ever going to accept the Tribunal as legitimate and fair, they need to fully understand what is going on in the courtroom, and the message should not have to be filtered through the press.

To remedy this problem in the future, the Presiding Judge should explain procedural decisions in open court, even if this is not traditionally done in Iraqi trials. Where decisions are made in closed sessions, explanation for going into closed session should be given in open court, and a summary of what occurred in the closed session should also be delivered in open court after closed session. In addition, the IHT should appoint an experienced lawyer or experienced journalist with a legal background to head the Public Outreach Office (a role eventually undertaken by Chief Investigating Judge Ra'id). The IHT Public Outreach Officer should issue an official statement every day of the trial (in both Arabic and where resources allow in English and/or French), explaining what went on that day and answering the questions that the public and press are likely to have about the day's proceedings. Such official press statements, together with trial exhibits, transcripts, budgets, annual reports, and other court documents, should be posted (in both Arabic and where resources allow in English and/or French) on the Tribunal's website on a daily basis for world-wide viewing.

Domestic War Crimes Tribunals should also run public service announcements on local and international television and radio, hold town hall meetings via the radio, the tribunal website, and where security permits throughout the country. They should develop a media program with workshops, bringing in selected domestic and international journalists to cover the tribunal and its trials. They should prepare, publish, and disseminate to key stakeholders and the public a handbook titled "what you need to know about the [domestic"> war crimes tribunal." Public outreach should focus not only on the particulars of the day to day proceedings, but also on the importance of the right to a fair trial, and the presumption of innocence until proven guilty.