Penn Law Journal - Fall 2004

According to Fredman, the U.S. intelligence community, working with good information-gathering tools, should be able to support the Iraqi tribunal as it has previous tribunals on the former Yugoslavia and the bombing of Pan Am 103.

However, Fredman observed that thousands of documents and statements are held by a host of governments and non-governmental organizations, which may be challenging to integrate. Additionally, he said, the prosecution will need to establish the admissibility of such evidence, and decisions must be made by potential witnesses who may be afraid to testify.

Scheppele noted concerns about Iraqi competence to conduct such a high-stakes – and well-publicized - trial. “The Iraqis have no training in international criminal law,” she said. “Would you want your first war crimes tribunal to be manned by inexperienced staff and judges?” In her view, it is a problem as well that the tribunal could operate with rules of evidence that do not meet basic norms of procedural fairness.

Certainly, the American legal system would hold itself to a much higher standard. Robinson, the Penn Law professor, said the prosecution would have a harder task proving Hussein’s guilt if the trial were held in the United States.

Under American law, according to Robinson, the prosecution would have to show beyond a reasonable doubt that Hussein made a conscious effort to direct or aid the crimes. The Miranda rules of search and seizure would also apply, as would as our statute of limitations, which might bar some of these crimes that occurred more than 25 years ago, Robinson said.

But most damaging to the prosecution’s case, he emphasized, would be this country’s adherence to the rule of law, under which courts cannot prosecute defendants for crimes that were not expressly prohibited when they were committed. “If this were an American trial, this would be a tough set of calls to make,” said Robinson.