A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal

Scholars and human rights organizations have repeatedly criticized Saddam Hussein's initial trial for violating the basic requirements of international due process. Although those criticisms are justified, they are only half the story. A trial is only as fair as the substantive and procedural law that a court applies; if either - or both - violate due process, a defendant's trial will be unfair no matter how decorously it is conducted. Indeed, in the context of a court like the Iraqi High Tribunal (IHT), which is intended to hear multiple cases over a period of many years, the underlying substantive and procedural law are arguably more important than the fairness of any individual trial: although trial conduct in general can be improved by appointing better judges, substantive and procedural reform requires legislative action, a slow and unpredictable process in the best of circumstances - and one that may be nearly impossible in a political environment as troubled as Iraq's. In the wake of Saddam's initial trial, then, it is critical to ask whether the IHT's substantive and procedural law satisfies the requirements of international due process. Unfortunately, the answer is no: although it is not without positive aspects, the law applied by the IHT is deficient at every stage of criminal proceedings, from the earliest moments of the investigation to the final confirmation of a death sentence. This essay systematically catalogs those due process violations and suggests ways in which the IHT's substantive and procedural law could be amended to eliminate them.