Issue #2: Should the Saddam Hussein trial be televised?

NO: By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 90 (2006).

When I met with the IST judges in London in October 2004 as one of the expert trainers enlisted by the Regime Crimes Liaison Office, we discussed the issue of televising the Saddam Hussein trial. I cautioned the judges that there were many risks associated with televising a major criminal trial, as can be seen in the cases of Slobodan Milosevic and O.J. Simpson, but the judges seemed generally to favor televising their proceedings.

The judges felt that public support for the IST would be enhanced through television cameras in the courtroom by showing the Iraqi people a fair judicial process and exposing them to the evidence submitted to the Court. Rule 50 of the Revised IST Rules of Evidence and Procedure (August 2005), provides that broadcasting the IST''s proceedings is prohibited unless the IST Trial Chamber specifically rules that it is permitted. The decision whether to televise the Saddam Hussein trial will thus not be made until the beginning of the trial.

The use of television cameras in U.S. courtrooms has also been the subject of much debate and controversy. In the 1965 case of Estes v. Texas, the U.S. Supreme Court ruled that the Sixth Amendment right to a public trial does not mean that a trial should be televised. While U.S. Federal Courts to this day do not permit the televising of criminal trials, several state courts have experimented with televised trials with mixed results. For example, the presence of broadcast media can inhibit witnesses from testifying, thereby, impairing the ability of the prosecution and defense from obtaining evidence; cameras encourage some judges and lawyers to play to the cameras, creating a celebrity status for them and thus depriving defendants of effective counsel and fair and impartial decisions by judges; and heightened public clamor resulting from television coverage will inevitably result in prejudice.

The record of televising international war crimes trials has also been mixed. Slobodan Milosevic played to the cameras throughout his trial and his dramatic courtroom antics have garnered him admiration in Serbia. In the Media Trial before the Rwanda Tribunal, the presiding judge had to go to extraordinary lengths to suppress the dramatic antics of defense counsel who was playing to the broadcast media.

To avoid these problems, rather than televise the Saddam Hussein trial gavel to gavel, the IST Press Office should release daily televised highlights of the trial to the media pool. And at the end of the trial, a documentary should be produced by the IST with extensive footage from the trial, so that a video record of the case can be made available to the Iraqi public in an easily accessible form.

YES: By Christopher M. Rassi

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 88 (2006).

My first thought was that Saddam Hussein's trial should not be televised for fear of taking away from the seriousness of the trial and making it seem like entertainment, especially at a time when Iraqis are concerned about survival and building their country. However, if it is not televised, the Iraqi Special Tribunal ("IST") could be taking away from the importance of his trial as it can serve several important functions in the transition to democracy and the rule of law in Iraq. The strongest arguments not to televise the trial have led me to believe that it should in fact be transmitted across the country and the Middle East. If the IST is to have a positive effect on the new Iraq, the trial of Saddam Hussein must be perceived by the Iraqi people and those around the Middle East as legitimate and fair. Only time will tell if this will happen, but assuming that it can be portrayed as such by Iraqis from the outset is unrealistic unless Iraqis are involved in the whole process, and aware of all developments surrounding the trial. As such, the IST Trial Chamber should permit the broadcasting of the trial under Rule 50 of the Rules of Procedure and Evidence.

At first glance, one would think that the IST should take a page from the Milosevic trial in deciding whether to televise the Saddam Hussein trial. On the surface, a lesson from the televised trial of the former Yugoslav president is that a televised trial in a country that is still recovering from massive destruction can make viewers believe that the trial is not going as planned, and shift the blame from those being tried to those that caused much of the current destruction and plight. Milosevic's antics in court and his accusations played on Serbs back home watching the trial.

However, it should be noted that the Saddam Hussein trial does not have the same inherent shortcoming of the Milosevic trial. The Judges can continue to maintain decorum in the courtroom. Unlike the televised trial of Milosevic at the International Criminal Tribunal for the former Yugoslavia in The Hague, the trial of Saddam Hussein has the potential to be civilized from the outset. With attorneys present, the Judges at the IST will not have to deal with Saddam Hussein personally making a mockery of the court room in his treatment of the witnesses, prosecutors, and themselves in a manner that would earn ordinary defense counsel expulsion from the courtroom. Also due to the presence of attorneys, the Judges will be able to keep Saddam Hussein from making disparaging remarks about the IST.

When it comes down to it, broadcasting the trial appears the honest and most reliable method for legitimizing the IST with Iraqis. The media will be flooding the trial and will portray the proceedings in their own way, with their own bias. Limiting the video clips chosen by the IST media office to snippets of the trial on the news can be seen by Iraqis and those in the Middle East as attempts to portray propaganda - after all, how could everyone know what is really taking place when only televised portions and highlights are released. Rules 48 ("the arrangements of protecting the victims and the witnesses) and 51 ("closed sessions") offer safeguards to protect against the presence of broadcast media, as well as any other type of media, in the most sensitive and secret of proceedings.

Much depends on whether the IST is seen as legitimate by the Iraqis, and the rest of the world. There is too much at stake not to have it televised around the country, and around the Middle East, this early in the process. Let us not forget that although prosecutors will pin prime responsibility on Saddam Hussein and other top Ba'ath figures, and disclose the way the Iraqi armed forces and security services were compelled to commit war crimes and crimes against humanity against foreign nationals and Iraqi citizens alike, Iraqis faced much devastation as a result of the occupation, even up until today. The IST will not address these plights. The IST will not address the legality of the occupation. But what the trial will do is broadcast in the region what the people of Iraq suffered through the regime of Saddam Hussein. As such, even though the trial might not vindicate the occupation and the tragedy that resulted from the war, it might nonetheless facilitate national reconciliation in the short term. There is a need to document the mass scale of these atrocities and share it with the rest of the country. This might not, in the eyes of Iraqis, justify the American invasion and diminish support for opposition groups which continue to wage a guerilla war against U.S. and other foreign troops and officials stationed in Iraq, but every Iraqi should be informed about the trial. It is vital that the Iraqi people be convinced that the IST is fair and impartial.

Posted @ 9:22 AM | Experts Debate the Issues: The Dujail Trial