Unfortunate Legacies: Hearsay, Ex Parte Affidavits and Anonymous Witnesses at the IHT

Abstract:     
This brief essay was part of a symposium entitled Fairness and Evidence in War Crimes Trials. To mark the commencement of the first international criminal trials taking place at the International Criminal Court in The Hague, this special issue was devoted to the question whether a person facing charges for war crimes or crimes against humanity can receive a fair trial on the evidence.

The Editors of ICE asked a number of experts in the field of international criminal law and evidence, including judges, practitioners, and academics, to submit short pieces on this topic.

Unfortunate Legacies Details how The Iraqi High Tribunal (IHT) carried forward three unfortunate practices from previous war crimes tribunals. The IHT allowed hearsay evidence and the reading of ex parte affidavits as evidence, two of the most criticized practices of the Nuremberg Tribunal.

The IHT also allowed the admission of testimony by anonymous witnesses, a legacy of the Yugoslavia Tribunal which has since been rejected by that same court. This article argues that the admission of such evidence by the IHT was improper and wholly unnecessary given the extensive documentary evidence in the case. The article concludes that the IHT and other tribunals should explicitly detail the evidence which was not relied upon in making major factual findings, particularly when dealing with unreliable evidence. Only through such explicit rejection can tribunals prove that a defendant can get a fair trial on the evidence.

Number of Pages in PDF File: 11

Keywords: iraqi high tribunal, saddam hussein, evidence, international criminal law, hearsay, ex parte, affidavits, anonymous witnesses, war crimes, international humanitarian law, crimes against humanity, reliability, unreliable

JEL Classification: K3, K33, N4, N40, K10, K14

Accepted Paper Series