Saddam Hussein and the Impartiality Deficit in International Criminal Justice

Abstract

This article examines - in light of what here is called an impartiality deficit critique - the tribunal that is now scheduled to begin trial of deposed Iraqi President Saddam Hussein and his associates on October 19, 2005. The term is derived from democracy deficit, the label by which multilateral institutions are faulted for lack of accountability mechanisms common in modern constitutional states. Critics have extended that latter notion to a centerpiece of the international criminal justice project, the permanent International Criminal Court that began operations in 2002. In contrast, the impartiality deficit critique assumes the propriety of establishing international criminal justice mechanisms. In the hope of improving the quality of those mechanisms, it exposes instances in which defendants were denied any component of this injunction of the International Covenant on Civil and Political Rights: In the determination of any criminal charge against him, ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Within this analysis, one might examine several tribunals to see whether they meet a single fairness criterion, such as the duty of judges to act without bias; alternatively, one might assess a single tribunal in light of several criteria. This article opts for the latter course, applying the impartiality deficit critique to the Iraqi High Criminal Court, which stands poised to try persons charged with responsibility for torture, killings, and other crimes of repression over a thirty-five-year period. The article first lays out key concerns of the impartiality deficit critique and then evaluates the Court in light of them. It shows that initial implementation occurred in a manner so devoid of basic guarantees that there seemed little likelihood that the accused would receive either the appearance or reality of a fair trial.