Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR and SCSL

Abstract

In a few months, the trial of Saddam Hussein and other former Iraqi regime leaders will begin before the Iraqi Special Tribunal (IST). The IST is a unique "internationalized-domestic tribunal" whose Statute and Rules of Procedure are modeled upon the UN-created Yugoslavia War Crimes Tribunal (ICTY), Rwanda Genocide Tribunal (ICTR), and the Special Court for Sierra Leone (SCSL), but whose judges are all Iraqis and whose courtroom is in Baghdad. There is much the IST can learn both from the successes and missteps of the ICTY, ICTR, and SCSL; many of the issues that will arise in the trials of Saddam Hussein and other Ba'ath party leaders have been tested in the real-world judicial laboratory of the three ad hoc tribunals. This article thus analyzes the experience of the ICTY, ICTR, and SCSL with respect to the following ten questions: (1) What is the most effective prosecutorial strategy for the trial of Saddam Hussein; (2) How should the IST handle challenges to its legitimacy; (3) Must the IST permit Saddam Hussein to act as his own lawyer; (4) should the IST televise its proceedings; (5) should the IST employ international trial observers; (6) what steps should the IST take to protect witnesses; (7) should the IST employ plea bargaining; (8) should the IST employ a hearsay rule; (9) should the IST take judicial notice of certain historic facts; and (10) how should the IST handle some of the unique defenses that are often raised in war crimes trials such as the tu quoque (you also) defense.