Essay #22: Who Won the Battle of Wills In the December Proceedings of the Saddam Trial?

Essays by David Crane, David Scheffer, Michael Scharf, Ruth Wedgwood, Christopher Rassi, Cherif Bassiouni, and Leila Sadat

On December 8, 2005, LA Times Reporter Henry Weinstein e-mailed our panel of experts the following question:

“I would like your assessments of who, for lack of a better word, “prevailed” in the battle today where Saddam Hussein skipped a session of the trial after declaring that he would not participate in a trial where there was no justice. How do you think the presiding judge handled what happened in the courtroom over the past two days? Did Saddam seem to gain anything from this, or does it look like he backed down? Also, I'd like to know the accuracy of something said by a legal analyst to CNN that no defendant in the past decade or so of crimes-against-humanity trials has ever skipped a trial date by simply refusing to show up.”

The following essays address this issue.

David Crane (former Chief Prosecutor of the Special Court for Sierra Leone):

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 128 (2006).

The histrionics we have viewed this past few days is very typical of these tyrants who have been brought low by the law. Regardless of the circumstances, they tend to do this, e.g. Goering at Nuremberg, Milosovic at The Hague, Hinga Norman at Freetown. These are men who all believed they were above the law and used the law as a tool for their own gain. I suspect when the former President of Liberia, Charles Taylor, whom I indicted for 17 counts of war crimes and crimes against humanity while sitting as President (only the second time in history), is brought to the tribunal in Freetown, Sierra Leone that he too will rage against the system, so to speak.

All in all I think, despite the confusion, which invariably happens at the beginning of any new tribunal, from Nuremberg to the present, the judge did a credible job. Despite the perception (which can't be discounted), the judge won. Stop and think...here we have the most powerful man in the middle east, a tyrant who ruled absolutely for over 30 years, humbled before the law and made to follow the rules. He even whined about having dirty underwear and a dirty shirt. This happened at the tribunal in Sierra Leone as well.

The tribunal in Sierra Leone is largely done with a year or so to go. 2/3 of the prosecution cases are done, 80% of the defendants chose not to go to court after the first few day or weeks. The rule is that as long as they choose to do so, and they are represented by counsel in court, it marches forward. In Sierra Leone, we had them sign a waiver each day and we gave them a television monitor to watch in the detention center should they choose to do so. Thus the commentary on CNN is erroneous.

Note, though I mention Nuremberg, and other international tribunals by way of illustration, as I have told you before, the IST is a far cry from any of them, yet it will be, unfortunately, the only way we can seek justice for the victims and the people of Iraq. So be it.

David Scheffer (former US Ambassador at Large for War Crimes Issues):

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 129 (2006).

I suspect I'm the CNN legal analyst you describe in your email, but you've got a garbled reading of what I recall saying, or at least intending to say. At the end of a long interview I was asked whether any defendant had not shown up for a trial before an international criminal tribunal. My first point was to emphasize, because of the context of all we had just discussed in the interview about Saddam's tactics, that no defendant had shut down his criminal trial before an international tribunal in the past 15 years by simply refusing to show up in the courtroom (following arrest or surrender, obviously). I was just starting to explain the nuances to that by mentioning ICTR defendants who had balked at appearing, and was going then to proceed to the excellent Sierra Leone precedents cited by David Crane below and arrangements that can be made with counsel and with the defendant consenting (and I had been emphasizing earlier in the interview the important role Saddam's counsel was fulfilling in his absence today), and then I wanted to mention the unique Rule 61 proceedings of the ICTY, when my television journalism 10 seconds were up as the producer voiced into my left ear, "Please end your answer now!" Thus the point had to be concluded prematurely. I don't think I was erroneous; I just did not have the air time necessary to complete my explanation on this question.

Professor Michael Scharf:

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 129 (2006).

As to "who won the battle of wills," let me begin by noting that this is a common defense tactic, not just in international trials, but also in highly politicized domestic trials even in the U.S. The most notable example was the Chicago Seven Trial (Abbey Hoffman, et. al), in which the leaders of the anti-war movement were prosecuted on the charge of conspiring to cause riots to disrupt the 1968 Democratic National Convention in Chicago. At one point in that trial, the judge had to gag and bound defendant Bobby Seales to constrain him from making frequent outbursts in an effort to disrupt the trial. This only led to a greater sense that the trial was unfair, which was the very point the defendants were seeking to establish. Interestingly, Ramsey Clark was involved in that trial too, as an adviser to the Defense team. In fact, when the defense tried to call Ramsey as a witness, the judge refused to allow him to testify, and the defense counsel shouted out that the decision was the greatest miscarriage of justice in the history of American jurisprudence, earning the lawyer a contempt citation from the judge. Ramsey Clark is clearly importing the disruptive trial strategies that were perfected in the Chicago Seven Trial for use in the trial of Saddam Hussein, seeking to achieve similar results.

Consistent with international standards of due process, Judge Amin could have Saddam Hussein brought to the courtroom by force, and he could have him placed in a glass booth like Adolf Eichmann was at his trial in Israel, to prevent him from disrupting the trial with outbursts. But that would only add to the appearance of injustice, which Judge Amin is desperately trying to avoid. So, instead, he is likely to arrange for Saddam to follow the trial by video link from the detention center, a strategy that other international trials have successfully employed. Most likely, Saddam will quickly choose to come back to court once he realizes that his absence has not derailed the trial, since he can score more points being in court than from the detention center.

It is also noteworthy that Saddam Hussein's outbursts and pledge to boycott the proceedings followed the testimony of witness A, a female victim of his atrocities. Saddam knew that her moving testimony could be extremely damaging to his standing within the Iraqi Suni community unless he could find a way to quickly distract media and public attention from it. In this he succeeded, as the media has devoted far more attention to Saddam's outbursts and "battle of the wills with the judge" than to the substance of the compelling witness testimony. But with 40 witnesses still to go, I don't think he'll be able to successfully repeat that feat over and over. So while Saddam may have scored more points in the first three days of the trial, Judge Amin, with his patient but firm approach, is likely to prevail over the long haul.

Professor Ruth Wedwood:

On Saddam's antics -- I worry most about the calculated intimidation of the witnesses and of the Iraqi people ..... In Eichmann's trial, the defendant was seated in the courtroom in a bullet-proof glass cubicle ... here, the trial judge also has the option of removing him from the courtroom if he persistently disrupts the proceedings (with an audio link to his defense counsel for necessary consultations, if possible).

But I sure wouldn't let Saddam shout his way through a trial process that is meant to be probative -- in this country, as in Iraq, a judge has a right to protect court proceedings from being interrupted, and he has a right to protect the solemnity of the proceedings as well.

Iraq has some brave judges!

Professor Christopher Rassi:

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 131 (2006).

Like Saddam Hussein, in the famous Media Case (Judgment from December 2003) at the International Criminal Tribunal for Rwanda, the defendant Jean-Bosco Barayagwiza boycotted the trial. Barayagwiza, also a lawyer by training like Saddam Hussein, was a high ranking board member of the Comité d’initiative of the RTLM and founding member of the Coalition for the Defence of Republic(CDR). He also held the post of Director of Political Affairs in the Ministry of Foreign Affairs.

Early on in the proceedings, not only did he boycott, but he did not want legal counsel or any assigned counsel. Barayagwiza sought the withdrawal of his first counsel citing reasons of “lack of competence, honesty, loyalty, diligence, and interest.” He then declined to accept assigned counsel and instructed them not be attend the trial and represent him, based on his inability to have a fair trial. Nonetheless, the ICTR Trial Chamber ordered counsel to continue representing Barayagwiza, even after they filed a motion to withdraw. The ICTR Trial Chamber held Barayagwiza’s behavior to be an attempt to obstruct proceedings, and that the judiciary must ensure the rights of the accused, taking into account what is at stake for him. The ICTR Trial Chamber further noted that assigned counsel represents the interest of the court to ensure that the accused receives a fair trial, efficient representation and adversarial proceedings. Eventually, the ICTR Trial Chamber directed the Registrar to withdraw their assignment and appoint new counsel for Barayagwiza because he had terminated their mandate.

Unlike the case of Milosevic and Barayagwiza, Saddam Hussein does not appear to be refusing counsel. Actually, it is quite the opposite, and from the looks of it, the interaction between his counsel and Judge Amin suggests the contrary. It appears as though his counsel is his trusted representative in court. If this is the case, this is just a one-day ploy, and not unheard of in international trials of such magnitude.

Professor Cherif Bassiouni:

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 132 (2006).

I'm presently in Egypt where Arab television is covering the trial extensively. The problems I anticipated have materialized, and I'm afraid that the defendants and their lawyers will cause a lot of havoc.
I understand from my contacts in Iraq that this is turning into a spectator's sport, where people are keeping score on who is making points in the oral debates. Obviously, the ability of the defendants and their lawyers to cause difficulties in the proceedings is succeeding. My impression is that there are two distinct scenes that are playing out contemporaneously. The first is the witnesses' testimony which is touching people's hearts, and the defendants and their lawyers, which are playing on national pride since the trial is seen in part as being the US vs. Saddam. In short, it is like having a 2-ring circus.

Professor Leila Sadat:

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 132 (2006).

As a matter of strategy, I think that Saddam does himself a disservice by not showing up, because with the Sunni insurgency, and at least some Iraqis and other Arabs, he is making good points about the legitimacy of the proceedings that he just cannot make if he doesn't appear. In fact, I think that he was doing quite well, although, as Cherif notes, there is also tremendous sympathy for the victim's of the crimes. What does he gain by not appearing? Very, very little, in my view, maybe a better suit, or cleaner clothes, but as a strategic matter, it doesn't make sense for him not to appear, making me wonder whose idea it really was.

Saddam's antics are of course legally irrelevant to the questions posed by the Dujail indictment, but the issues that his defense team is trying to raise about the legitimacy of the entire affair are completely relevant and unfortunately, will never really be aired. No one can feel sympathy for Saddam, particularly hearing the testimony of the survivors. But the question remains whether Iraqis might come to hate the United States and everything about it even more than they despise their former leader, and there is enough of a grain of truth in his categorization of the Iraqis participating in the trial as "collaborators" that he may ultimately win a great deal of public support for that position. Thus, there is a real risk that this trial may exacerbate rather than ameliorate that reality. Abu Ghraib, the alleged use of incendiary phosphorus again civilians, estimates as high as 100,000 Iraqi deaths (recall that the Nato bombing campaign had fewer than 500 total casualties, even by Serb estimates) * these stories turn the U.S. effort to make this a real time morality play into hypocritical words, at best. It seems to me that most U.S. commentators on the trial simply brush aside the "technical" issue of the court's establishment by an occupying foreign power that killed thousands, maybe hundreds of thousands, of Iraqis in order to give Iraqis the "privilege" of putting their former leader on trial (at a cost of $US 130 million). Yet the Iraqis live with that reality daily, which is why, even though so many of them hated Saddam, they sympathize with opponents of the U.S. (and the tribunal).

Having Saddam watch proceedings offstage, so to speak, will hurt the credibility of the proceedings, I believe, although David's comments about Sierra Leone suggest that perhaps that was not the case there (but as far as I can tell, the U.S. RCLO hasn't been leading "town meetings" as David did in Sierra Leone, to establish support for the court). At best, there will be an uneasy truce * Saddam and his retinue will be executed, the U.S. will pull out, and Iraq will be poorer and less stable than before. Whether or not Ramsey Clark is involved in organizing the defense, I think the outbursts and antics are a logical approach for Saddam to use, given that he has been given no real legal forum in which to challenge the legality of the tribunal. Indeed, I note that proceedings have not been stayed so that the tribunal can consider the allegations of illegitimacy, presenting yet another striking difference between the conduct of these proceedings and international tribunal proceedings * think about the carefully reasoned and very important decisions in the Tadic case on the question of jurisdiction.

In any event, as David Crane has noted, since the U.S. government decided this was to be the policy, we all have to live with it and hope for the best. Would that wiser and more experienced heads had prevailed.

Posted @ 3:06 PM | Experts Debate the Issues: The Dujail Trial