Issue #18: What are the Major Misconceptions about the IST?

By Michael Scharf

This essay addresses four misconceptions about the Iraqi Special Tribunal (IST) that widely appeared in the media coverage in the aftermath of the first day of the Saddam Hussein trial.

MISCONCEPTION #1: “The IST does not apply a fair standard for proving guilt.”

FACT: The IST Statute (Article 19) provides that “the accused is presumed innocent until proven guilty before the Court.” Although the Statute does not stipulate the test for proving guilt, the Statute must be read together with the Iraqi Criminal Code and practice. Iraq, like over 100 other countries around the world, uses the Civil Law Inquisitorial System rather than the Common Law Adversarial System. In Iraq, as in most Civil Law countries, guilt must be proved “to a moral certainty.” When I discussed this standard while training the Iraqi Tribunal Judges in October 2004, they confirmed that this is the functional equivalent of the beyond reasonable doubt standard. Moreover, the IST Statute requires the Court to produce a written reasoned opinion, explaining in detail the factual and legal basis of its judgment – something that is not required of an American jury verdict.

MISCONCEPTION #2: “Defense Counsel has been unfairly denied the opportunity to meet with the defendants in private.”

FACT: In 1946, the ranking Nazi defendant tried at Nuremberg, Herman Goering, cheated justice by taking cyanide, which had been smuggled into the jail during the trial. Under the IST Statute, a trial can be held only when the defendant is alive and present. For this reason, Saddam Hussein is on a 24-hour suicide watch. On the opening day of the trial Saddam Hussein complained that he has not been allowed to have a pen – something that has been used by other high risk prisoners to take their own lives. In the same vain, a security guard stands quietly in the back of the meeting room during the defendant’s daily meetings with Defense Counsel to ensure that they don’t “pull a Herman Goering.” Even if the guard understood Arabic, which I’m assured by U.S. officials he does not, nothing he overhears can be used by the prosecution because of the IST’s exclusionary rule (Rule 59 of the August 11, 2005, Revised IST Rules of Procedure).

MISCONCEPTION #3: “The IST can use so-called ‘torture evidence.’”

FACT: Rule 59 of the August 11, 2005, Revised IST Rules of Procedure is the IST’s “exclusionary Rule.” (The unofficial translation of this rule on this website is not a very good translation; I am told that the text in Arabic is the same as the original February 2005 version of the rule (See Rule 79, available at http://www.law.case.edu/war-crimes-research-portal/instant_analysis.asp?id=15) which more clearly provides that the Tribunal will rule evidence inadmissible if the statement was not voluntary or if the means by which it was attained casts substantial doubt on its reliability. This is equivalent to how U.S. courts apply the Constitutional due process right in criminal cases. Since it does not employ a jury, the IST will enforce this exclusionary rule the way most European countries do, by prohibiting any mention of inadmissible evidence in the written judgment of the Tribunal, under Article 23(2) of the IST Statute.

MISCONCEPTION #4: “If the IST finds Saddam Hussein guilty, the Court must impose the death penalty within 30 days.”

FACT: Article 27 of the August 11, 2005 Revised IST Statute provides that the punishment must be implemented within 30 days of the date when the judgment becomes final and non-appealable. Critics maintain that this means that if found guilty and sentenced to death, Saddam Hussein would be executed at the end of the Dujail case, denying the IST the opportunity to prosecute him for the worst atrocities, such as the Anfal campaign and the extinction of the Marsh Arabs. The IST judges don’t want Saddam Hussein to be the modern version of Al Capone – the 1920s gangster and mass murderer who was only prosecuted for tax evasion. During the training sessions in London, the judges generally agreed that immediate enforcement of a death penalty at the end of the first case would undercut one of the main purposes of the IST, which is to create a historic record of the worst atrocities of the Saddam Hussein regime. If Saddam Hussein is convicted and sentenced to death, I am confident that the IST judges will interpret Article 27 in a way that permits them to stay execution until after Saddam Hussein has stood trial in the major cases.

Posted @ 1:20 AM | Experts Debate the Issues: The Dujail Trial