Building the Iraqi

Special Tribunal

Lessons from Experiences in 

International Criminal Justice

Summary

• On December 10, 2003, the Iraqi Governing Council adopted the “Statute of the Iraqi 

Special Tribunal,” providing the legal foundation and laying out the jurisdiction and basic 

structure for the Tribunal that will be responsible for prosecuting acts of genocide, crimes 

against humanity, and war crimes committed in Iraq between 1968 and 2003.

• Cases of mass violations of human rights and international humanitarian law present 

exceptional legal and logistical challenges due to the huge numbers of victims, witnesses, incidents, and evidentiary documents involved, as well as the legal complexities of the crimes in question. These challenges are magnified in situations such as 

Iraq where there is a need to build from the ground up a new judicial institution to 

handle the cases. 

• The process of establishing the Iraqi Special Tribunal can be made smoother and more 

efficient by examining the lessons learned from the creation and operation of other 

international criminal tribunals, such as the International Criminal Tribunals for the 

former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the East Timor 

Serious Crimes Unit, as well as from the experiences of domestic legal processes for 

adjudicating mass violations of human rights and international law.

• These lessons relate both to the legal issues that will be faced by the Iraqi Special 

Tribunal and to the practical aspects of establishing a Tribunal that effectively 

contributes to justice and reconciliation, operates efficiently, and adheres to a high 

standard of due process.

• Legal matters that will require attention in the process of establishing the Tribunal 

include crafting rules of procedure and evidence, rules of detention, and sentencing 

guidelines. Practical matters include organization of the start-up phase, design of a 

management structure, and creation of a defense counsel system. Issues particular 

to the Iraqi Special Tribunal, such as precise definition of the role of international 

personnel called for in the Statute, will need to be addressed as well.

www.usip.org

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SPECIAL REPORT 122 JUNE 2004

ABOUT THE REPORT

A process is now underway in Iraq to establish a new 

institution, the Iraqi Special Tribunal, that will try 

members of the former regime for serious violations 

of international and Iraqi law. The United States 

Institute of Peace’s Rule of Law Program is engaged 

in an ongoing effort to facilitate the development 

of this Tribunal in a way that contributes to justice 

and reconciliation in Iraq, operates efficiently, and 

adheres to a high standard of due process. As part of 

this effort, the Institute held a conference in March 

2004 in Amsterdam, The Netherlands, that brought 

together Iraqis involved in establishing the Tribunal 

with experts on international criminal law and the 

practical operations of special tribunals from nine 

countries. The conference was organized by the United 

States Institute of Peace and co-sponsored by the 

Institute and the Institute for International Criminal 

Investigation. This report is based largely on the 

principal views and insights shared at the conference 

regarding the work that will need to be undertaken to 

establish the Iraqi Special Tribunal. The suggestions 

in this report reflect “lessons learned” from the work 

of the International Criminal Tribunals for the Former 

Yugoslavia and Rwanda, the Special Court for Sierra 

Leone, the East Timor Serious Crimes Unit, and various 

national judicial processes concerning accountability 

for mass violations of human rights and international 

humanitarian law. Laurel Miller of the Institute’s Rule 

of Law Program wrote this report.

The views expressed in this report do not necessarily 

reflect views of the United States Institute of Peace, 

which does not advocate specific policy positions.

UNITED STATES INSTITUTE OF PEACE

CONTENTS

Introduction 2

‘Lessons Learned’on Establishing Tribunals 3

Conclusion 12

 

SPECIAL REPORT
• Based on the experience of other similar tribunals as described by the experts at the 

Amsterdam meeting, this report provides recommendations concerning each of the 

above issues, as well as others ranging from the importance of establishing a strong 

public outreach program early in the Tribunal’s life cycle, to the impact of defense 

counsel fee arrangements on the pace of trials, to the value of separating trial and 

sentencing phases of proceedings. 

Introduction

On December 10, 2003, the Iraqi Governing Council adopted the “Statute of the Iraqi 

Special Tribunal” (IST). The Statute provides the legal foundation for the IST, and lays 

out its organization, jurisdiction, and basic procedures. Under the terms of the Statute, 

the IST will be independent of any Iraqi government bodies, and will have jurisdiction over specified crimes committed by any Iraqi nationals or residents between July 

17, 1968 and May 1, 2003, the period of the Baath party rule. The IST will have nine 

appellate, at least five trial, and up to 20 investigative judges (plus up to 10 “reserve” 

investigative judges), as well as up to 20 prosecutors, all appointed by the Governing 

Council. The President of the IST will be selected by the Appeals Chamber from among 

its members, and an Administration Department will be headed by a Director appointed 

by the Governing Council. The Statute permits, but does not require, the Governing 

Council to appoint non-Iraqis as judges. It requires, on the other hand, that non-Iraqis 

be appointed to serve in “advisory capacities” or as “observers” to the Trial and Appeals 

Chambers, to the investigative judges, and to the prosecutors. 

The IST’s subject matter jurisdiction covers the international crimes of genocide, 

crimes against humanity, and war crimes, which are defined in the Statute both explicitly 

and by reference to international conventions. The statute also incorporates jurisdiction over three specified crimes under Iraqi law involving manipulation of the judiciary, 

squandering of public assets, and “the pursuit of policies that may lead to the threat of 

war or the use of the armed forces of Iraq against an Arab country.” The Statute requires 

the IST judges to adopt special rules of procedure and evidence to regulate the Tribunal’s 

work, and also specifies provisions of Iraqi criminal law and criminal procedure law that 

will apply in IST proceedings.

The Rule of Law Program of the United States Institute of Peace is engaged in an 

on-going effort to facilitate the development of the IST in a manner that will contribute 

to justice and reconciliation in Iraq, operate efficiently, and adhere to internationally 

accepted standards of due process, which will be essential to the IST’s legitimacy and 

impact. As part of this effort, the Institute held a conference in March 2004 in Amsterdam, The Netherlands, that brought together Iraqis involved in establishing the IST with 

high-level experts on international criminal law and the practical operations of special 

tribunals from nine countries. The conference focused on key legal and practical questions related to implementation of the IST Statute. The comments of conference participants largely reflected “lessons learned” from the work of the International Criminal 

Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR), the Special Court for 

Sierra Leone, the East Timor Serious Crimes Unit, and various national judicial processes 

concerning accountability for mass violations of human rights and international humanitarian law. Experts at the conference included practitioners who had served in judicial, 

prosecutorial, administrative, and defense capacities at the various tribunals, as well 

as others with academic expertise in international criminal justice. This report is based 

largely on the principal views and insights shared at the conference regarding the work 

that will need to be undertaken to establish the Iraqi Special Tribunal.

Following the conference, on April 20, 2004, it was announced that the first appointments to the IST were made in Baghdad. The appointments included a Director of AdminABOUT THE INSTITUTE

The United States Institute of Peace is an 

independent, nonpartisan federal institution 

created by Congress to promote the prevention, 

management, and peaceful resolution of international conflicts. Established in 1984, the Institute 

meets its congressional mandate through an array 

of programs, including research grants, fellowships, professional training, education programs 

from high school through graduate school, 

conferences and workshops, library services, and 

publications. The Institute’s Board of Directors is 

appointed by the President of the United States 

and confirmed by the Senate.

BOARD OF DIRECTORS

Chester A. Crocker (Chairman), James R. Schlesinger 

Professor of Strategic Studies, School of Foreign Service, 

Georgetown University • Seymour Martin Lipset (Vice 

Chairman), Hazel Professor of Public Policy, George Mason 

University • Betty F. Bumpers, Founder and former

 President, Peace Links, Washington, D.C. 

• Holly J. Burkhalter, Advocacy Director, Physicians for 

Human Rights, Washington, D.C. • Laurie S. Fulton, Williams and Connolly, Washington, D.C. • Charles Horner,

Senior Fellow, Hudson Institute, Washington, D.C. • 

Stephen D. Krasner, Graham H. Stuart Professor of International Relations, Stanford University • Mora L. McLean, 

Esq., President, Africa-America Institute, New York, N.Y. 

• María Otero, President, ACCION International, Boston, 

Mass. • Daniel Pipes, Director, Middle East Forum, Philadelphia, Pa. • Barbara W. 

Snelling, former State Senator and former Lieutenant 

Governor, Shelburne, Vt. • J. Robinson West, Chairman, 

PFC Energy, Washington, D.C.

MEMBERS EX OFFICIO

Lorne W. Craner, Assistant Secretary of State 

for Democracy, Human Rights, and Labor 

• Michael M. Dunn, Lieutenant General, 

U.S. Air Force; President, National Defense University 

• Peter W. Rodman, Assistant Secretary of Defense for 

International Security Affairs • Richard H. Solomon,

President, United States Institute of Peace (nonvoting)

2
istration, seven investigative judges, and four prosecutors; as of this publication, only 

the Director of Administration has been publicly named.

‘Lessons Learned’ on Establishing Tribunals

The Start-Up Phase: Process, Timeline, and Staffing

Cases of mass violations of human rights and international humanitarian law, such 

as genocide, war crimes, and crimes against humanity, present exceptional legal and 

logistical challenges due to the huge numbers of victims, witnesses, incidents, and evidentiary documents that often must be considered, examined, and organized for use in 

court. These challenges are magnified when dealing with such cases through a special 

domestic process or through an ad hoc international forum that calls for building a 

new judicial institution from the ground up. Establishment of the IST, a new institution 

charged with investigating, prosecuting, and trying major complex crimes, presents the 

full range of legal and logistical challenges that have been faced most prominently in 

recent years by the ICTY, ICTR, Special Court for Sierra Leone, and East Timor Serious 

Crimes Unit.

Experience with other tribunals shows that the first key step will be to create a 

strategy that takes account of the IST’s purpose and what it realistically can achieve. 

Each organ of the tribunal should be involved in formulating the strategy. Based on the 

strategy, a timeline for the IST’s work should be drawn up. The Special Court for Sierra 

Leone, for example, established a ten-phase strategy covering start-up through trials 

over a period of three years. In light of the urgency with which the Iraqi people (including victims) and the international community appear to regard the IST’s objectives, five 

years may be a reasonable timeframe for completing the IST’s work; a shorter period 

is likely to be unrealistic. It will be important to assess realistically and communicate 

openly how much can be achieved in whatever timeframe is agreed upon. Other tribunals, for example in East Timor, have failed to make such a realistic assessment, leading 

to inordinate expectations by the public.

Once a strategy is formulated, developing an outreach program should be an 

immediate next step. It will be important to inform the Iraqi people of the IST’s 

plans, including the proposed timeframe for its activity, and what the IST intends 

to achieve within it; if the process to be pursued by the IST is not well understood, 

there is a risk that the IST will not be seen as a credible contributor to justice and 

stability. As the work of the IST proceeds, it will be important to explain indictments that are issued, what they include and do not include, and why. Experiences 

elsewhere strongly indicate the importance of open and transparent public outreach. The ICTY, for example, is widely regarded to have failed to conduct effective 

outreach—the ICTY reached out to elements of the international community that 

provided its funding, but largely did not reach out to the people of the region 

concerned with its work. This has resulted in the ICTY lacking credibility in the 

eyes of many in the region and not playing the role in reconciliation that it was 

mandated to perform and could have played. Even today, the outreach function is 

not included in the budget of the ICTY and has to be separately funded through 

voluntary contributions. In contrast, the strong emphasis that the Special Court for 

Sierra Leone has placed on outreach (e.g., town hall forums around the country, 

ongoing communications through local media, and regular meetings and consultations with a broad range of civil society representatives) from its start is considered 

to have contributed significantly to its credibility among the local population. An 

outreach program needs to be understood from the beginning as a vital function 

of the IST. In addition to providing the public with information about the Tribunal, 

the outreach program needs also to ensure broad public access to the IST’s hear3

The Rule of Law Program of the 

United States Institute of Peace 

is engaged in an ongoing effort to 

facilitate the development 

of a Tribunal that will contribute 

to justice and reconciliation 

in Iraq, operate efficiently, 

and adhere to internationally 

accepted standards of due process.

Cases of mass violations of 

human rights and international 

humanitarian law . . . present 

exceptional legal and logistical 

challenges. 

An outreach program needs to be 

understood from the beginning as 

a vital function of the IST.
ings, both through provision of an adequate public gallery in the courtroom and 

through television and radio coverage of the proceedings.

A third early priority should be development of a sound information management 

system based on the priorities of the investigative judges and prosecution. Time and 

money will be wasted if the IST develops its own system from the ground up; rather, 

it would be prudent to look at the systems adopted by other tribunals and select the 

best, bearing in mind the lessons learned concerning information management through 

difficult experience at other tribunals. The ICTY, for example, underestimated in its early 

period the importance of creating effective means and procedures for storing, reviewing 

and analyzing documents, resulting in inefficiencies and delays. In addition to acquiring 

appropriate software and technical mechanisms for document management, an analysts 

unit should be put in place to review and assess documents. 

Dealing with documentary evidence will be a huge task in the Iraq context (reportedly, 

there are about nine miles of documents to be reviewed), and therefore should begin 

promptly. However, it will be exceedingly important not to rush into putting evidence 

into a database before determining how the evidence and the database system will need 

to be used. The ICTY, for instance, has changed its document management system several 

times, and each time has had to scan the documents into the new system and renumber 

millions of pages. Moreover, the ICTY did not develop a plan for systems for the whole 

tribunal, and only now is working to bring the office of the prosecutor, judges’ chambers, 

and registry together into a single “enterprise” system.

The IST’s document management system should be designed with the use of documents in 

court proceedings kept in mind, as well as the need to use the same documents in multiple 

proceedings simultaneously. At the ICTY, for example, a poorly designed system reportedly 

resulted in $1.5 million being spent just in the search for exculpatory documentary evidence 

to turn over to the defense in the Milosevic case.

Ensuring an adequate legal framework (i.e., a basis in the substantive law applied in 

Iraq) for prosecution of the crimes within the IST’s jurisdiction should be an early priority 

as well. The legal framework should fully specify the elements of the crimes within the 

IST’s jurisdiction (i.e., genocide, crimes against humanity, war crimes, and certain crimes 

under Iraqi law), the elements of the underlying acts (e.g., murder, persecution, sexual 

violence, etc.), the forms of individual criminal responsibility (e.g., planning, ordering, 

instigating, etc.), and the defenses available to the accused. Analysis of all documents 

and evidence should then follow this framework, ensuring that all information to be 

entered into any system is reviewed and tagged as it relates to these legal elements.

Developing a staffing structure for the IST will be another key task in the start-up phase. 

Creating the structure should follow crafting of the overall strategy for the IST, as it should 

be based on the strategy, rather than the other way around. If large numbers of personnel 

are hired before the strategy is established, it is likely that they will be inappropriately or 

underutilized, will complicate the development and implementation of a clear strategy, and 

may be difficult to dismiss. In East Timor, for example, a radical revision of the Serious Crimes 

Unit’s strategy after a large number of staff were hired who could not be readily dismissed 

led to such problems in proper utilization of personnel. In Sierra Leone, in order to avoid 

such problems, the Special Court hired a core staff of seven for the start-up phase, including a chief of investigations, chief of prosecutions, operations officer, and special assistant; 

after the first 30 days, the Special Court’s strategy and timeline were reviewed and adjusted, 

and hiring of additional staff began. Establishment and publicizing of transparent recruiting 

procedures that emphasize the need for practical judicial and legal experience should help 

the IST to resist political pressures on the hiring of personnel.

Another priority in the start-up phase should include arranging security for the IST’s 

personnel. Efforts in this regard are already underway in Iraq. Security will be a dominant 

issue not only for the IST’s personnel, but also for many Iraqis with whom they will need 

to engage in order to conduct their work. Specifically, a strong witness protection program will need to be in place as soon as investigators begin contacting witnesses.

4

Dealing with documentary evidence will be a huge task in the 

Iraq context . . . and therefore 

should begin promptly.
In addition, written protocols will be needed that spell out how the various elements 

of the IST are to conduct their work, in order to regularize procedures and ensure consistency in the IST’s work overall. For example, protocols are needed to describe how to take 

a witness statement, and how to handle evidence (such as forensic evidence from a mass 

grave) in order to ensure that it is usable in court. 

Finally, to the extent non-Iraqis who do not speak Arabic will be involved in the IST’s 

work, very high quality translators and interpreters will be needed; recruitment and training of these individuals should be included among the start-up tasks. Ensuring quality 

translation and interpretation has been a significant challenge at other tribunals.

Management Structure

Efficient operation of the IST will require careful attention in the development stage 

of the tribunal to the design of an effective management structure. The management 

structure should be designed to ensure both the coherence of the IST as a whole and the 

independence of its three branches (the judiciary, the Prosecutions Department, and the 

Administration Department). Other tribunals have employed a coordination council, in 

which the heads of the branches meet regularly to resolve management issues, as a key 

element of the structure.

While independence of the branches is important (the judiciary, for example, should 

not have management or budgetary control over the Prosecutions Department in order to 

preserve the integrity of the legal process), and while communication and cooperation 

among the leaders of the branches is essential, making clear who will be in charge overall 

of setting the policy direction for the IST will be key. Without a clear chain of authority, 

conflicts, confusion, and deadlocks can result. Presently, the IST Statute is unclear on this 

point. In Sierra Leone, for example, the Special Court has a senior management board on 

which the different branches are represented, but it is clear that the chief prosecutor has 

the dominant role in setting the Special Court’s direction, and that the president has a 

relatively limited role. For the IST, the president, chief investigative judge, or chief prosecutor could have the leading role, so long as the determination is clear.

Attention also will be needed to ensure that the branches of the IST have comparable 

resources and staffing in both quality and quantity. Disparities in the strength and degree 

of organization among the different elements of the IST will weaken the tribunal overall. 

In East Timor, for example, the reputation of the Serious Crimes Unit remains clouded by 

the fact that the tribunal started with a very strong prosecutorial branch but weak defense 

counsel system and understaffed judicial branch.

The organizational structure of the IST will need to take account of the importance of 

providing services to victims and witnesses with whom IST personnel will interact. One 

option is to place a victims and witnesses unit within a neutral element of the IST, such 

as the administrative branch, in order to avoid any appearance of deals with witnesses to 

do favors in exchange for testimony. Another option is to establish such a unit under the 

authority of the Chief Investigative Judge, or in the Prosecutions Department, recognizing that prosecutors or investigative judges may be well-placed to communicate with and 

assist victims and witnesses because of their early contact and relationships with them. 

At the Special Court for Sierra Leone, for example, the witness management unit is placed 

within the Office of the Prosecutor. This unit is responsible for assessing the risk to witnesses, arranging their protection (to include moving them and their families out of the 

country, when necessary), re-checking their stories, and maintaining contact with them. 

At the ICTY, the Office of the Prosecutor and the defense handle witnesses during the 

pre-trial phase, and the victims and witnesses section of the Registry (i.e., administrative 

branch) handles all witnesses once a trial is underway. The Registry’s services include support (transportation, accommodations, making available social workers), protection, and 

other logistics. The Registry considers ensuring the safety of the approximately 700 witnesses who appear at the ICTY each year to be its highest priority. Protection techniques 

5

Efficient operation of the IST 

will require careful attention in 

the development stage of the 

tribunal to the design of an 

effective management structure.
include use of pseudonyms, voice distortion and shielding of faces during live testimony, 

closed court sessions, and redaction of transcripts to prevent disclosure of names. One 

witness at the ICTY early on testified in complete anonymity (i.e., the defense was not 

told the witness’s identity), but this practice was greatly criticized on legal grounds and 

not repeated. A small number of witnesses and their families have been relocated to other 

countries, pursuant to agreements between the ICTY and those countries, and in some 

cases have been given new identities.

The IST may wish to consider establishing field offices, specifically in Kuwait and Iran, 

similar to the field offices that the ICTY, for example, operates in the capitals of the states of 

the former Yugoslavia. Such offices provide a useful base from which investigators can work 

and conduct interviews, as well as a capacity for liaison with local officials. Field offices can 

be small, while providing a bridgehead to which additional staff can be deployed as needed. 

Unlike the ICTY, which has authority under Chapter VII of the UN Charter, the IST would need 

to conclude agreements with countries in which it wished to establish field offices.

Coordination Between Investigative Judges and Prosecutors

The IST Statute maintains the system of investigative judges now operating in Iraq, under 

which such judges gather evidence and issue subpoenas, arrest warrants, and indictments 

with respect to individuals whom they are investigating. At the same time, the Statute 

seeks to enhance the currently weak role of prosecutors in the Iraqi legal system, in 

particular by providing that a prosecutor assigned to a case “shall have the right to be 

involved in the investigative stages” of that case, in addition to prosecuting the case at 

trial. In this way, the IST Statute appears to combine elements of the current Iraqi legal 

system with elements of other systems in which prosecutors play a much more significant 

role. A difficulty with this approach is that the distinction between the respective roles of 

the investigative judges and the prosecutors is insufficiently clear. For example, does the 

right to be “involved” in the investigative stages of a case permit a prosecutor to engage 

in collecting evidence for use at trial, or is the investigative judge uniquely responsible for 

that task? Such lack of clarity could be a serious threat to the effective functioning of the 

IST. Creating active, competing roles for both prosecutors and investigative judges within 

one system could undermine the effort to maintain a unified strategy that all parts of the 

IST follow. At a minimum, this approach will require extraordinary cooperation between 

the chief investigative judge and the chief prosecutor.

Experts’ views vary as to whether a civil law type system, in which investigative judges 

play the dominant role in investigating and preparing a case for trial, or a common law 

type system, in which prosecutors play the leading role, is more suited to the current 

situation in Iraq and the anticipated role of the IST. Some consider that the investigative judge system normally has the merit of minimizing discrimination between poor and 

wealthy defendants (because the investigative judge collects evidence on behalf of both 

the prosecution and defense equally, and defendants need not use their own resources to 

investigate avenues of defense). But it can be questioned whether in Iraq today it will 

be realistic to expect investigative judges to look for exculpatory evidence on behalf of, 

as an example, Saddam Hussein—and therefore whether an adversarial system would be 

more appropriate. On the other hand, maintaining the investigative judge system now 

in place in Iraq could be most efficient, because a change in the system would require 

significant re-training of judges and lawyers accustomed to the civil law tradition. In 

addition, trials tend to be shorter and there is less need to test evidence in court under 

an investigative judge system, because there is judicial involvement from the start of the 

case, and because a good investigative judge can carefully define the scope of a trial. In 

contrast, the process of examination and cross-examination of witnesses in the common 

law system can be very time-consuming. Consequently, in light of the huge scope of time, 

crimes, and documents with which the IST will have to contend, an investigative judge 

system may be more practical and cost-efficient. 

6

Experts’ views vary as to whether 

a civil law type system, in which 

investigative judges play the 

dominant role in investigating 

and preparing a case for trial, or 

a common law type system, in 

which prosecutors play the leading role, is more suited to the 

current situation in Iraq.
Regardless of the approach ultimately applied, it will be important to ensure that 

offices of individual investigative judges and offices of individual prosecutors do not work 

as separate and isolated units. The need to share information and work jointly both among 

and between prosecutors and investigative judges is particularly acute when dealing with 

complex state crimes, which are not individual acts, but all part of one fabric.

Establishment of a Defense Counsel System

Legal aid for indigent defendants is likely to be an expensive element of the IST. At the 

ICTY, for example, legal aid consumes about ten percent of the budget ($10-$13 million 

per year), and is used for at least some of their expenses by more than 90 percent of the 

accused. The Special Court for Sierra Leone, due to its relatively limited budget, established 

a ‘public defender’ office within the Court structure that administers the defense counsel 

system. The chief public defender (who serves on the senior management board) and the 

three lawyers on her staff arrange flat fee contracts for defense counsel. In most cases, 

the fee is $300,000 per defense team.

Based on hard-won experience at other tribunals, experts recommended that the IST 

pay lump sum fees (based on the complexity of the case) to defense counsel in installments, rather than hourly fees. At the ICTY, an hourly fee system was employed for the 

first eight to nine years, and this system was too often abused. The hourly fee system 

also was considered to have contributed to the slow pace of proceedings because defense 

counsel had no incentive to work expeditiously. Delays at both the ICTY and ICTR were 

sometimes the result of defense attorneys drawing out proceedings unnecessarily in order 

to maintain an income flow.

A recent improvement in the defense counsel system at the ICTY has been to establish a 

“closed list” of attorneys from which accused persons may choose representatives (previously, 

the accused could add attorneys of their choice to the “open” list). This change has allowed 

more careful vetting of the qualifications of defense counsel. The ICTY also intends to put in 

place soon more rigorous experience requirements for those who seek to be on the list.

A defense counsel system will need to be established at least by the time indictments 

are first issued—and perhaps even earlier, while investigations and interrogations are 

underway, particularly if an adversarial system is to be employed. The defense counsel 

regime should provide defense teams with the same type of resources (e.g., investigation 

capacity) as those of the prosecution, but not necessarily the same level or amount of 

resources, as the prosecution bears the burden of proof in a case.

The defense counsel system is considered to have been the weakest link in the structures 

of all of the previous recent tribunals. The IST would do well, therefore, to begin early to organize the system, particularly as members of the defense bar will likely require considerable 

training before they are ready to appear in court in the types of cases the IST will handle.

The IST would benefit from establishing a code of conduct for defense lawyers. Among 

the problems that have been encountered at the ICTY and ICTR were a number of cases of 

defense counsel illegitimately splitting their fees with their clients in exchange for being 

selected for a case. Grandstanding by defense counsel is another problem that has affected 

proceedings in various forums. In domestic proceedings in Rwanda, for example, it was 

often difficult to find qualified local lawyers willing to defend those accused of genocide, 

but some foreign lawyers who appeared instead turned proceedings into political shows. 

Recalcitrant defendants who refuse professional legal counsel (such as Slobodan Milosevic, as well as some former junta members tried in Argentina) present a different challenge that the IST may well encounter. Staff at the ICTY debated intensely how to deal 

with Milosevic; civil law lawyers argued that counsel should be appointed for him even if 

he refused, whereas common law lawyers disagreed on the ground that counsel must be 

instructed by the client. The tribunal’s compromise—appointing amicus curiae—is considered by experts not to have worked well. The best way to prevent politics from becoming 

the dominant dimension of the trials at the IST may be to appoint strong judges who 

7

The best way to prevent politics 

from becoming the dominant 

dimension of the trials at the 

IST may be to appoint strong 

judges who will stop any political shows early on.
will stop any political shows early on, and who will control the proceedings to exclude 

any attempt at grandstanding or any defense presentation not pertinent to the specific 

charges.

Role of International Personnel in the IST

As noted above, the IST Statute permits the Governing Council to appoint non-Iraqis as 

judges, and requires the appointment of non-Iraqis to serve in “advisory capacities” or 

as “observers” to the Trial and Appeals Chambers, to the investigative judges, and to the 

prosecutors. A variety of experts have expressed the view that robust non-Iraqi participation in the IST would contribute significantly to its legitimacy and credibility in the eyes 

of the international community, and could also encourage international financial support. 

Some have suggested further that a mix of foreign and Iraqi judges should be appointed 

to the IST, because international crimes are at issue—crimes against all of humanity, not 

only the Iraqi people, and because of lack of experience with international criminal law 

among Iraqi judges. A credible process for appointment of foreign judges would be needed. Among the many options would be selection by the UN Secretary General; nomination 

or appointment by a committee of presidents of the ICTY, International Court of Justice, 

and International Criminal Court; or nomination or selection by some other combination 

of leaders of such institutions and/or non-governmental organizations. 

Political circumstances in Iraq suggest that appointment of foreign judges currently is 

not likely, however. The provision permitting the appointment of foreign judges, a lastminute addition to the Statute, reportedly was strongly urged on the Governing Council 

by the CPA, and has not been warmly welcomed. It is unclear what the attitude of a new 

post-June 30 interim government may be with respect to the appointment of foreign 

judges. In addition, it is unlikely that the CPA’s suspension of the death penalty will be 

continued after the planned June 30 transfer of authority in Iraq, making it doubtful that 

any UN organs would be willing to play a role in appointing IST judges. 

Aside from the issue of appointing foreign judges, clear definition is needed of the role 

envisioned for the non-Iraqi nationals required by the Statute to be appointed “to act in 

advisory capacities or as observers . . . , and to monitor the protection by the Tribunal 

of general due process of law standards” as well as the “performance” of particular elements of the Tribunal. These individuals are to be appointed by the IST’s President, Chief 

Investigative Judge and Chief Prosecutor to function within their respective departments. 

The provisions on this subject in the IST Statute require considerable elaboration in the 

anticipated rules of procedure or elsewhere. A principal question raised by the Statute 

provisions is to whom would “observers” or “monitor[s]” be accountable. While the Iraqi 

effort to invite outside scrutiny and to ensure that the IST adheres to international standards is commendable, it is difficult to envision how an effective role could be crafted for 

observers or monitors appointed by the IST itself, as it is doubtful whether such persons 

would be independent of the IST, and whether they would have a forum outside the IST in 

which to raise any concerns. Monitors or observers appointed by the judicial system being 

monitored/observed would lack credibility at least from an international perspective. 

One alternative would be to provide for the selection, appointment, and payment of the 

foreign monitors by a non-Iraqi organization or committee, to ensure their independence 

even while carrying out their observer duties from within the Tribunal. Another option 

would be simply to invite external groups to carry out monitoring instead. In this regard, 

steps should be taken to promote local civil society, so that Iraqi groups, complemented 

by foreign organizations, can take a leading role in monitoring the IST. Under this latter scenario, instead of operating as observers or monitors, the non-Iraqi personnel 

appointed to the IST should be involved in its ongoing work, for example, by providing 

advice and training on substantive international criminal law.

A question the IST probably will need to address is whether to accept secondments 

of non-Iraqi personnel from foreign governments, international organizations, or NGOs, 

8

Steps should be taken to promote 

local civil society, so that Iraqi 

groups, complemented by foreign 

organizations, can take a leading 

role in monitoring the IST.
or whether to recruit and hire such personnel directly. Accepting secondments or gratis 

personnel would save money; the Special Court for Sierra Leone, for example, has saved 

about $1 million per year in personnel costs in this manner. However, such personnel 

generally have loyalties to the place to which they will return, and will often experience 

pressure to report back to their sending state or organization. In some cases, though, 

secondees may actually be more independent than persons directly hired, because they 

know they have a job to return to. The lack of independence of seconded personnel can 

be minimized by (1) insisting on having at least three candidates for each position open 

to non-Iraqis; (2) reserving the right to reject any candidates and to dismiss any foreign 

personnel without appeal; and (3) requiring at least a one-year commitment from any 

foreign personnel accepted. If the security situation permits, accepting non-Iraqi interns 

should be considered also, as they are inexpensive and can be valuable (interns have been 

used effectively at the Special Court for Sierra Leone, for example), but they should be 

required to serve at least six months in order to be effective. 

Role of International NGOs in Assisting the IST

Experience with other tribunals shows that non-governmental organizations could provide 

valuable help to the IST. Such support could include (1) direct assistance with tasks such 

as forensic work at mass graves; (2) providing ‘lessons learned’ from other tribunals; (3) 

rallying support from outside actors (such as governments who might provide funding); 

(4) providing friendly and discreet advice; (5) providing consultants in the start-up phase 

to assess needs; (6) training; (7) legal research support; (8) help with outreach; and (9) 

independent monitoring. 

Assistance from international NGOs was crucial for the Serious Crimes Unit in East 

Timor, as they filled gaps that the UN did not anticipate (e.g., NGOs paid for 35 interpreters), and prepared useful legal briefs. Local NGOs and civil society groups can play 

an important role as well. In Sierra Leone, an advisory council of civil society representatives explains the role of the Special Court to their communities and provides feedback to 

the Court as to how its work is perceived. In addition, the Special Court’s registrar holds 

monthly stakeholders’ meetings involving senior personnel of the Court and representatives of international and national NGOs; the Court uses these meetings to request help in 

particular areas as well as to keep others informed. The Special Court also has established 

a consortium of academic institutions that provides useful legal support to the trial and 

appellate divisions.

Rules of Procedure and Evidence

Though the IST judges have the authority under the Statute to decide upon the rules of 

procedure and evidence, it will be important for them to consult with the investigative 

judges, prosecutors, defense bar, and administrative arm of the tribunal in developing 

the rules. This is a lesson learned through experience at the ICTY and ICTR, for example, 

which eventually established committees for consultation among the branches on rule 

changes.

In formulating the rules, it will be necessary to decide how trials at the IST should 

be conducted—for example, what role examination and cross-examination of witnesses 

will play. In particular, it will be important to determine to what extent the trials 

will rely on the “oral tradition” of live witness testimony, or on the use of witness 

statements (the ICTY, for example, now permits the introduction at trial of witness 

statements, except when the witness’s testimony directly pertains to the conduct of 

the accused and the defense wishes to cross-examine). These issues will bear on the 

length of trials.

The rules also will need to address how evidence is to be tested in court. The ICTY 

and ICTR, for example, have adopted a very open approach to what can be presented as

9

Experience with other tribunals 

shows that non-governmental 

organizations could provide 

valuable help to the IST.
evidence in court, along the lines of a civil law system. Those tribunals have no hearsay 

rule for excluding evidence, for instance; instead, judges use their discretion to consider the 

probative value and reliability of evidence, and decide how much weight to accord it.

The rules should specify the degree of disclosure of evidence to the defense that will 

be required. The ICTY rules, for example, do not require the prosecutor to turn over the 

entire case file to the defense, unless the defense does the same, but they do require the 

prosecutor to turn over exculpatory evidence. If the IST retains the investigative judge 

system, then reciprocal disclosure of evidence will not be needed, as the investigative 

judge will collect evidence on behalf of both sides.

The provisions on pre-trial procedures in the rules should make clear how, at the pretrial stage of the proceedings, the issues and cases can be narrowed as much as possible, 

in order to ensure that trials are not too lengthy. For example, the procedures for the 

Special Court for Sierra Leone require presentation of a defense statement during pre-trial, 

based on which the court can narrow the issues for trial.

Either the rules of procedure and evidence or a separate document laying out the elements and theories of individual liability for the crimes within the IST’s jurisdiction should 

specify the permissible theories of defense. This will give clear notice to the accused at 

the outset, will help the prosecution set the direction of cases, and will provide a very 

helpful guide to judges on the IST. Some experts have cautioned that the pertinent ICC 

documents should not be used as a model, as they are too detailed and contain some 

points that are not universally accepted by international lawyers.

The rules will need to address clearly the position of the accused at trial—i.e., whether 

he will be permitted to speak in court only if he takes the stand as a witness (as in the 

common law legal system), or will be permitted to make a statement, about which the judge 

can decide the probative value, without actually appearing as a witness (as in the practice 

of the ICTY).

Utilizing as models the rules of other tribunals likely will be of some, but limited, value 

to the IST. As it will be important for Iraqi judges, prosecutors, and defense counsel to 

understand well the procedures, the rules should be grounded in Iraqi law. Even within 

wholly domestic processes for prosecuting regime crimes, however, there is precedent for 

departing from standard and established rules. For example, in the domestic prosecutions 

in Argentina of former junta members, the country’s regular code of criminal procedure 

was not used, and special procedures were developed instead to accommodate the masses 

of information and huge numbers of victims involved as compared to ordinary crimes. 

Particularly to the extent that the rules depart from established Iraqi law, very detailed 

explanations and clarity in the rules will be essential.

It is probable that the IST will, at times, wish to close proceedings to the press and 

public when confidential witnesses appear, or perhaps when especially sensitive evidence 

is introduced. The circumstances in which closed court sessions are permitted should be 

specified in the rules, but should be very limited, as the closure of proceedings is likely 

to affect seriously the public perception of the fairness of the process. 

Among the many other issues that the rules of procedure and evidence will need to 

address, several that merit particular attention, in light of experience at other tribunals, 

include: (1) provision for live witness testimony from remote locations (e.g., via video 

hook-up) in order to facilitate witness protection; (2) flexibility in the evidence rules so 

that circumstantial evidence of deaths that occurred many years ago can be introduced 

(the existing rules for ordinary crimes probably do not accommodate such a scenario); 

(3) clarity as to whether provisional release pending trial will be allowed, even if release 

seems out of the question under current circumstances in Iraq, as the circumstances may 

change; (4) provision for any foreign governments that provide evidence to the IST to 

require protection of the confidentiality of such evidence on national security grounds; 

and (5) clarity as to what privileges not to disclose information will apply (the question of 

privileges has been the subject of much litigation at the ICTY—for example, as to whether 

journalists or the ICRC may assert a privilege).

10
Rules of Detention

At present, Iraqi authorities do not have control over detainees being held in Iraq who are 

likely to be targets for prosecution and trial by the IST. Once Iraqi authorities do gain such 

control and commence investigations, including questioning, of such persons, rules of detention will need to be in place both to ensure the reasonableness of the conditions of detention 

and to prevent troublesome conduct by detainees. Among other things, such rules should 

address the permissible length of time between indictment and trial, regulation of visits 

to detainees, conditions for meetings between detainees and defense counsel, access for 

accused persons to materials needed to prepare their defenses, and access to means of communication. The detention rules of the ICTY probably would serve as a useful model for the 

IST, even though the detention practice at the ICTY has been problematic (accused persons 

have waited up to two years in detention for trials that often last a year or more).

Establishing good conditions of detention will provide an opportunity to demonstrate 

the distinctions between a democratic government and a dictatorship. Many UN documents 

set out widely recognized principles for detention conditions. The most important priority 

with respect to conditions will be to ensure that prisoners are not abused. Also, leadership 

figures should be detained separately from the rank and file, in order to avoid organized 

trouble-making and to protect some prisoners from others, but distinctions should not be 

drawn between the comfort level in detention of “big fish” and “small fish.” 

The detention rules should provide for monitoring communications of detainees in 

order to avoid disclosure of sensitive information or documents, or of the identity of any 

confidential witness, and in order to limit the ability of detainees to direct witness intimidation. Two detainees of the Special Court for Sierra Leone, for example, have attempted 

to foment rebellion from their cells. Attorney-client communications should not be monitored, however; any abuse of such confidentiality by attorneys can properly be dealt with 

only through contempt proceedings against the offending attorneys.

Arranging for external monitoring of conditions of detention would go a long way 

toward establishing the credibility and fairness of the IST’s detention rules and practices. 

Based on its broad experience in this area, the International Committee of the Red Cross 

would be best placed to perform this function. 

Sentencing Guidelines

Though the IST Statute does not address this issue, creation of sentencing guidelines for 

the IST judges will be important in particular to ensure comparable results across trials 

conducted in different trial chambers. Notably, the ICTY, which has been criticized for 

inconsistent sentencing, has only recently set up a working group of judges to establish 

sentencing guidelines. Such guidelines also may be helpful in determining sentences for 

international crimes that do not have penalty provisions under Iraqi law. The IST Statute 

refers to “international precedents” as a factor to be considered in sentencing in such 

cases, but experts regard these precedents as too inconsistent to be useful guides.

The IST’s procedures should provide for sentencing proceedings to be conducted separately from trial proceedings, most essentially in the death penalty context, due to the 

different kinds of witnesses and evidence needed in those phases. Separation of the phases 

also will enable judges to consider sentences more dispassionately. The Special Court for 

Sierra Leone employs such a separation, but the ICTY does not (a fact that some experts 

consider unfortunate). The time gap between the phases need not be great (possibly only 

days or a week), and sentencing hearings could in many cases be limited to one day. 

Under the terms of current Iraqi law as referenced in the IST statute, penalties may 

include capital punishment. Very specific guidelines for imposition of the death penalty, if 

it is to be available, will be extremely important in order to ensure its fair and consistent 

application. For example, a unanimous (rather than the usual majority) vote of judges 

should be required for imposition of the death penalty, and extra latitude should be pro11

Establishing good conditions of 

detention will provide an opportunity to demonstrate the distinctions between a democratic 

government and a dictatorship.
For more information on this topic, 

see our website (www.usip.org), 

which has an online edition of this 

report containing links to related 

websites, as well as additional 

information on the subject.

United States 

Institute of Peace

1200 17th Street NW

Washington, DC 20036

www.usip.org

vided to defendants in presenting evidence against imposition of the death penalty.

Making available the death penalty for cases before the IST is likely to pose a variety of 

complications for the operation of the IST and its ability to fulfill its mission. For example, 

the IST might wish to consider the negative impact wide application of the death penalty 

could have on the reconciliation process in Iraq if most of those prosecuted are from one 

particular ethnic or religious group. In light of such a consideration in Rwanda, which 

has prosecuted over 6,000 genocide cases, the death sentence, though lawful, has been 

carried out only upon one occasion, and has been subject to a moratorium on its use for 

about six years. In addition, some have suggested that rejection by the IST of the death 

penalty for Saddam Hussein and other leading figures would signal a major change in the 

Arab world, and that life imprisonment of such persons would have the benefit of serving 

as a daily reminder that they have been punished for their crimes. In Sierra Leone, where 

local law provides for capital punishment but the rules of the Special Court do not, Court 

officials have emphasized in their outreach efforts that the convicted perpetrators will be 

compelled every day of their lives to think about what they did to cause their imprisonment, and believe this message has resonated with the population. Finally, the availability 

of the death penalty could lead many foreign governments, international organizations, 

and international NGOs that oppose the death penalty to be reluctant or unwilling to 

provide assistance to or share information with the IST.

Conclusion

The process of establishing the IST from the ground up presents the full range of legal 

and logistical challenges that have confronted over the last decade the ICTY, ICTR, Special 

Court for Sierra Leone, and East Timor Serious Crimes Unit. This process can, however, be 

made smoother and more efficient by examining and applying the lessons learned—often 

through adverse experience and initial error—from the creation and operation of these 

other international criminal tribunals, as well as from the experiences of domestic legal 

processes for adjudicating mass violations of human rights and international law. This 

report and the conference on which it is largely based represent an initial step toward 

collecting the lessons that are likely to be useful to the IST. Further such steps, and continued engagement between Iraqis responsible for the IST and international experts, will 

facilitate the development of an IST that contributes to justice and reconciliation in Iraq, 

operates efficiently, adheres to a high standard of due process, and achieves credibility in 

the eyes of the Iraqi people and the international community. 

Making available the death 

penalty for cases before the IST 

is likely to pose a variety of 

complications for the operation 

of the IST and its ability to 

fulfill its mission.