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The historic trial of former Iraqi dictator Saddam Hussein, which is scheduled to begin on Oct. 19, will take place in the newest war crimes tribunal. At the same time, it promises the extraordinary spectacle of two of the greatest tyrants of the late 20th century-Slobodan Milosevic being the other-standing trial at the bar of justice simultaneously. The inevitable comparisons between the two cases are very much on point, as the Milosevic trial highlights serious questions about the ability of the International Criminal Tribunal for the former Yugoslavia (ICTFY) to cope with the leading figures responsible for the massive atrocities committed during the Yugoslav wars. The implicit challenge for the Hussein tribunal is to avoid the pitfalls that have emerged in the ICTFY. The sheer length of the Milosevic trial, for a start, is cause for serious concern. Fast approaching its fourth anniversary, it has been sputtering along, in stop-start fashion. To place it in perspective, the trial of the major war criminals at Nuremberg (the “progenitor” model of the ICTFY), with a total of 22 defendants, was conducted, from beginning to end in less than a year. Discrete, manageable charges The Hussein trial has started with an important step toward avoiding the spectacle at the ICTFY. Only discrete, manageable charges, arising out of a massacre of 143 people, and incarceration of hundreds more in the town of Dujail in 1982, have been leveled initially. Limiting the scope of the inquiry in this way minimizes the prospects of a drawn-out affair. While speed should never be of the essence in a criminal trial, the old maxim “justice delayed is justice denied” applies to all parties having an interest in a just outcome, including victims. A key factor in the drawn-out nature of the Milosevic trial, and at the same time a problem in itself, is the adeptness with which he has converted the proceedings into a platform for writing his own version of history: specifically, portraying his country as a victim of an international plot to break up Yugoslavia, e.g., per medium of NATO bombing. Milosevic has the advantage of modern technology, which ensures that his highly politicized speeches are beamed by television back into Serbia. And the circus atmosphere is compounded by bizarre episodes, such as the spectacle of several defendants at the ICTFY running for election in Serbia, using cellphones as well as public telephones at the detention center where they are being held to make policy speeches-and being elected! The prospect of Hussein using his trial as a political platform of his own, with considerable help in the Arab world from Al-Jazeera television, suggests that the role of the court should be to limit the evidence presented quite strictly, by reference to the touchstone of relevance. Inherent in all major trials is the historical dimension-in the case of the prosecution, presenting a detailed record of a regime for posterity; for the defense, seeking to publicize its own version. But when this leads to tension with the interests of justice, the lesson of the Milosevic trial may well be that historical considerations should take a backseat for both sides, in the interests of fairness. At the same time, the increasing resort to plea bargaining in the ICTFY leaves a decidedly unpleasant taste, when sentences for the most heinous crimes in the international legal vocabulary-genocide and crimes against humanity-are haggled over like bargains at a flea market. Thus, Biljana Plavsic, the former “Iron Lady of Bosnia,” could plead guilty, and be sentenced to 11 years’ imprisonment, despite the fact that, as a member of the three-person leadership team headed by Milosevic himself, she was centrally responsible for so much injury, suffering, devastation and death. She is now in a Swedish prison, which resembles a country club, and she has recently published her memoirs. Since the tribunal was established by the United Nations, the death sentence is not an option; this, coupled with resort to plea bargaining, means that the stakes are relatively low for even the most egregious offenders. In the case of the Iraqi tribunal, the death sentence is very much open, thereby diminishing the disparity between the magnitude of the crime and the available range of sentences. The international spotlight will be very much on the Hussein trial, taking place, as it will, in an essentially domestic tribunal, albeit with provision for international advice and consultancy. If the tribunal rises to the challenge, avoiding the problems highlighted by the ICTFY, it may well have a salutary effect in establishing a viable alternative to the model represented by the ICTFY. Harry Reicher, an NLJ columnist, teaches law and the Holocaust and international human rights at the University of Pennsylvania Law School.

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