Issue #27: An Assessment of Ra'uf Abdel-Rhaman's First Day as Presiding Judge

Chaos in the Courtroom...So What's New?
By 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 142 (2006).

The antics by various accused and their counsel this past Sunday, 29 January, brought an interesting clash of the power of the rule of law with the power of greed, corruption, and a twisted arrogance towards that rule of law. Disruptive indictees in international tribunals are common in the early stages of a tribunal's work. It happened at Nuremberg, at the Hague, Arusha, Freetown, and now the internationalized domestic court in Baghdad. It will happen again. It is a painful realization for these accused that the law now controls them and not the other way around. The accused in Baghdad, like their predecessors in history, are going through an emotional process of tyrants being humbled publicly before those they terrorized and they don't like it.

Refusing ! ! to go to court, defense counsel resigning or refusing to go to court, ranting at the judges and the public gallery by the accused and counsel are manifestations of this emotional catharsis they are going through. Their antics and acting out are not signs of a court or tribunal in disarray. They are signs of the powerful realizing that the rule of law truly is more powerful than the rule of the gun.

The very same antics took place in Freetown just shortly after I gave my opening statements in the joint criminal trial against the leadership of the Civil Defense Force, as well as the joint criminal trial against the leadership of the Revolutionary United Front. Using the standing rules of procedure and evidence, the judges in those trial chambers, though initially flustered, took general control and followed the tribunal's rules. Within a month the ebb and flow of witnesses giving evidence began and the trials moved fo! ! rward, in most instances without the accused, and at times with court appointed counsel from the Principle Defender's office. Defense counsel came and went, yet the trials continued justly forward under the rules. The rights of all of the accused were scrupulously followed. Such hi jinks are not suprising in Baghdad.

It is very instructive that the reaction of the Iraqi people who watched this on television on Sunday were generally impressed with the new chief judge. However, Judge Abdel Rahman needs to stay calm and collected and not joust with the accused. The respect of this court by the Iraqi people (and the international community) is tenuous at best. Firm and patient judging will most likely get the proceedings on track. It not, a grave injustice will have taken place and the role of the law in Iraq's future will be shaken indeed.


The Battle of the Wills -- Part Two
By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 143 (2006).

As expected, Judge Ra’uf Abdel-Rhaman has brought to the Saddam Trial a much firmer hand. Unlike Judge Rizgar Mohamed Amin, Judge Ra’uf has not hesitated to employ a number of tools at his disposal in an effort to assert greater control over the defendants and their lawyers.

Indeed, Judge Ra'uf closely followed the prescription that appeared in my essay #25 (see below) posted on January 17. He began by reading the defendants the riot act, making it clear that he would not permit any further disruptive or disrespectful behavior during the remainder of the proceedings. Next, he appointed stand-by defense counsel, ready to step in if Saddam’s lawyers once again attempted to derail the trial with a boycott. Later, he had some of the defendants and defense counsel removed from the courtroom when they attempted to disrupt the trial with offensive outbursts. And he told Saddam that he could watch the rest of the proceedings via close circuit video from his detention center when he tried to stage a walkout. The media focused almost entirely on the chaotic exchanges that ensued as Judge Ra’uf asserted his authority, but the fireworks only took up the first hour of the four and a half hours of the day’s proceedings. Following Saddam’s unceremonious departure, the trial proceeded quite smoothly with four of the eight defendants sitting quietly in the courtroom as three more witnesses completed their testimony.

The tools Judge Ra’uf’s employed on his first day were field-tested by the international war crimes tribunals in The Hague, Arusha, and Freetown, and are considered to be consistent with internationally recognized due process and fair trial rights. The risk, however, is that if Judge Ra’uf completely shuts down the “Saddam show,” the former dictator will refuse to return to the courtroom for the rest of the trial. Under such circumstances, he will have waived his right to be present, but a trial without the presence of Saddam (and his world famous attorneys) will still seem like a trial in absentia -- a show trial without the star atraction. Such a situation would diminish the cathartic effect of the trial for victims who desire to see Saddam confronted by his accusers. The international and local media would quickly lose interest, and broadcasts would be reduced from gavel to gavel to a few highlights a day, thereby diminishing the educative function of the trial.

Two possible solutions exist to this problem. The first is to erect a soundproof plexi-glass booth around the defense dock, and force Saddam Hussein to appear in court against his will. We’ll call that the “Eichmann approach,” made famous in Robert Shaw’s acclaimed Broadway play and film, “The Man in the Glass Booth,” about the trial of the former Nazi in Jerusalem. The second approach, a bit more innovative and less heavy-handed, is for the Tribunal to install a video camera so that the public can watch Saddam while he watches the trial from the detention center. By using cut-aways or split screen format (made famous in the Bush-Gore Presidential debates), the broadcasts could show Saddam’s reactions to the proceedings as they unfold without necessitating that he be physically in the courtroom.

Dispite the chaotic exchanges with the defendants and their lawyers, I give Judge Ra’uf high marks for his first day on the job -- with one exception. I am concerned by the fact that he seemed to lose his temper in the face of the vitriolic insults that were hurled at him by the defendants. It is absolutely critical that Judge Ra’uf not play into the defendant’s attempts to provoke him into an angry response. Since the judges serve as the jury in this case, shows of anger by the presiding judge will only fuel the perception that the proceedings are unfair, as was the case in the early months of the Milosevic trial. Judge Rizgar Amin may not have been as firm as some wished with the defendants, but he never lost his cool – an important lesson that Judge Ra’uf should take to heart.


A Turning Point in the Saddam Trial
By Paul Williams


Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 144 (2006).

In any country judges are subject to media and public criticism. While it is unfortunate that Judge Amin resigned, it is important to remember though that this is no ordinary trial, and that Judge Amin did not step down because he was biased, but because he realized he had lost control of his courtroom. I suspect in most other countries if a judge had clearly lost his ability to maintain order in his courtroom he too would resign in order to permit a new judge to assume the chair and to re-establish order in the court room. The change of judges also makes a bit more sense in light of the absence of traditional mechanisms like contempt of court citations frequently used to maintain order.

Sunday, January 29 marked a clear turning point in the Saddam trial. The approach of the previous Judge, Mr. Amin, had been to allow both Saddam and his lawyers great leeway in the courtroom. This was an appropriate approach given the need to create an environment conducive to a fair trial. The flexibility of the judge was taken as a weakness and was exploited by Saddam and his lawyers. The new judge Abdel-Rahman, who was originally scheduled to try the Anfal case, clearly saw it as his duty to regain control of the courtroom. Today’s showdown was to be expected as Abdel-Rahman reasserted psychological and physical control over both Saddam and his lawyers.

The psychological contest in the courtroom mirrors the contest between the Iraqi government and the insurgents outside the courtroom. Within the trial chamber, as well as throughout Iraq, the new Iraqi institutions are trying to assert their control over the former Baathist forces. While chaotic, today’s session was an important turning point for the Tribunal is it firmly reasserted control over the proceedings. The focus will hopefully now shift from Saddam’s courtroom antics to the question of his culpability for the alleged crimes.

Despite the antics of Saddam, the Iraqi Tribunal has moved ahead at a pace comparable to trials conducted before the international tribunals for Yugoslavia and Rwanda. At the end of the day this is Iraqi justice for the Iraqi people. Most local commentators in Yugoslavia and Rwanda assert that while the international community has achieved some measure of justice, the victims have been forgotten and are detached from the trials being conducted in The Hague or Arusha. Despite the difficulties faced by the Iraqi Tribunal, the fact that it is being held in Iraq and that Saddam and others are being tried by Iraqis will contribute immeasurably to the healing process for victims, and to the sense among Iraqis that they are now in control of their own destiny

Posted @ 11:43 AM | Experts Debate the Issues: The Dujail Trial