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

Abstract

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."