Issue # 16: Was the First Day of the Trial a Success?

YES: by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 119 (2006).

I spent the day on October 19, 2005, viewing the proceedings and commenting on the Saddam Trial for a variety of US and Foreign news media, including CNN, Fox News, ABC News, MSNBC, and the BBC (London). I was struck by the near consensus among American journalists that the first day of the trial was quite a success, and the near consensus among foreign journalists that it was a train wreck. While people of different countries are prone to see in a war crimes trial what they want to see, I think there are some objective indicators by which to measure the success of the first day of the Saddam Trial, which I discuss in this essay.

First, the judge selected to preside over the trial, Rizgar Mohammed Amin, was an inspired choice. Judge Amin proved himself to be among the very best and the brightest of the IST judges that I worked with in training sessions in London last fall and spring. The gray-haired Judge Amin is Kurdish, which is less objectionable in a trial involving mainly Shi’ite victims. But what I remembered most about him was his calm temperament, infectious smile, and patient demeanor. The man is a rock. Unlike Judge Richard May, who tried to shout down Slobodan Milosevic when he acted in a disrespectful or disruptive manner at the Yugoslavia Tribunal, Judge Amin deftly handled Saddam Hussein’s outbursts and refusal to answer his questions in a calm but firm manner. By the end of the hearing, Saddam Hussein went from defiant to cooperative, entering a plea of “not guilty” (rather than refuse to do so as Slobodan Milosevic had done in The Hague). Moreover, Judge Amin’s first decision in the trial was to grant the some of the defendants’ request to allow them to wear their head coverings in court, demonstrating that he was committed to being respectful of their fundamental rights.

Second, the judges decided to televise the proceedings gavel to gavel (with a twenty minute delay to handle witness protection and security concerns). Moreover, Judge Amin decided not to have his visage electronically obscured even though televising his identity would put him at great risk of assassination by Saddam Hussein’s supporters. During the training sessions, the judges talked about the importance of “transparency,” and showing the “face of justice,” so that the IST would not be subject to the kind of criticism leveled at some Latin American courts which have employed hooded judges. While there are risks that Saddam Hussein and his lawyers will try to use the televised trial as a political stage, the judges felt that on balance the importance of transparency outweighed this risk.

Third, despite some glitches with the video equipment which temporarily delayed the proceedings, the first day of the trial was very well choreographed, with a great deal of symbolism that was apparent to the Iraqi people if not the press. For example, by asking Saddam Hussein to identify himself and state his former profession, Judge Amin was demonstrating that in his courtroom Saddam Hussein was an ordinary criminal defendant, entitled to no better or worse treatment than any other criminal defendant. When the defendant refused to answer the question and began to attack the legitimacy of the proceedings, Judge Amin said quietly but resolutely, “Sit down. We’ll note that you are Saddam Hussein, former President.”

The Defendants were seated in a traditional Iraqi dock, which looks like a pen with four-foot high sides, as opposed to the “cage” that some media had reported would be used. It was particularly significant that the person seated next to Saddam Hussein in the first row of the defendant’s pen was Awad Hamed al-Bandar, who had been the Chief Judge of Saddam Hussein’s Revolutionary Court. In a previous essay, I address why the Dujail case was a good one to start with, but until I saw the assigned seating positions of the defendants on the first day of the trial, I had not focused on the fact that this is likely to be the ONE case in which the Revolutionary Court itself will be on trial. Under Saddam Hussein, the Revolutionary Court was used as a weapon against Saddam’s political opponents, and Judge Abandar himself allegedly signed the warrant to execute the victims of Dujail. In this way, the Dujail case will be similar to the Altstoetter (“Justice”) trial at Nuremberg, which was later portrayed in the Academy Award winning movie, “Judgement at Nuremberg,” staring Spencer Tracy, Judy Garland, Marlena Deitrich, Maximilian Shell, and William Shatner. This was said to be one of the most important of all of the Nuremberg trials, since it established the precedent that judges who participate in a court system which perverts the law can be held responsible as accomplices to crimes against humanity – a precedent that has not been employed in sixty years until the Dujail case.

After Judge Amin had the defendants identify themselves, he established that each was represented by counsel, and then took thirty minutes to explain to them their rights before the IST. Judge Amin used this opportunity to demonstrate to the defendants and the world that the IST was governed by the highest standards of due process and defense rights, imported from the Rules of Procedure of the Yugoslavia and Rwanda Tribunals.

This was followed by the Prosecutor’s recitation of the charges and the main facts that the Prosecution intended to prove at trial. The most significant revelation was that the Prosecutor intended to enter into evidence a written order, signed by Saddam Hussein himself, for the retaliatory actions against the town of Dujail and its citizens. In this way, the world learned that Saddam Hussein might be convicted on the strength of his own records, much like the Nazis were at Nuremberg.

As the three hours of proceedings drew to a close, Judge Amin announced that the Tribunal had decided to grant the defense motion for a temporary adjournment of the trial to give the defense team forty more days to further prepare its case, to give the Prosecution time to guarantee the safety of reluctant witnesses, and to give the Iraq government a chance to publish the new (August 11, 2005) revised version of the IST Statute in the Official Gazette (similar to the US Congressional Record) – which is necessary for it to come into force.

The proceedings didn’t all go like clockwork (there were some equipment glitches and Saddam Hussein got into a tussle with a security guard when he tried to escort the defendant by the arm on the way out of the courtroom). And like any war crimes trial, the rest of the trial is likely to see its share of errors and missteps. But I believe the first day will be remembered as a showdown between the defiant Saddam Hussein and the patient, avuncular Judge Amin. It will be remembered as a day in which the tribunal treated the defendants with respect and dedicated itself to ensuring their rights. It was a good day for the IST!

Posted @ 10:37 AM | Experts Debate the Issues: The Dujail Trial