Issue #28: Can the defense team be held in contempt of court for its antics?

by Michael A. Newton

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 145 (2006).

The very essence of a fair trial is the right to be judged based on the evidence produced in court rather than innuendo and emotion. Thus far, the defense antics in Baghdad have been the main obstacle to the calm and orderly consideration of evidence. I would daresay that there is no courtroom in the world that would tolerate a defendant hurling the insults at the bench that were heard in open court this week. No one who is seriously committed to justice and the provision of a fair and public hearing based on the evidence adduced in open court could expect the judge to smile politely and permit defendants to disrupt proceedings with extraneous insults and shouted denunciations. In fact, Iraqi criminal procedure law specifically empowers the judge to “prevent the parties and their representatives from speaking at undue length, or speaking outside the subject of the case.” [Paragraph 154 of Law Number 23 of 1971"> After the defendant refused requests to come to order, Judge Raouf Rashid Abdul-Rahman restored order in the only way possible by directing the removal of Barzan al-Tikriti. As our own Supreme Court said in Pounders v. Watson, 521 U.S. 982, 987–988 (1997), when “misconduct occurs in open court, the affront to the court's dignity is more widely observed, justifying summary vindication.” If one or more of the defendants refuses to attend open court, the proceedings can continue in accordance with international law and the accepted practice of international tribunals. For example, on April 19, 2005, Slobodan Milosevic absented himself from his trial in The Hague due to illness. The Trial Chamber simply proceeded in his absence and ordered that a video recording and a transcript of proceedings be delivered to his cell. The Iraqi Higher Criminal Court has gone a step beyond that by making a closed circuit video available in the detention center for any of the defendants who refuse to participate in the proceedings in person.

In contrast to the narcissistic grandiosity of the defendants that has been on open display, the defense counsel should be held to the professional standards of acceptable practice as they represent the interests of their clients. This is one reason why Article 19 of the Statute of the Iraqi Higher Criminal Court requires the principal lawyer for each defendant to be Iraqi. The lawyers who left the hearing without the permission of the bench could have immediately been detained for 24 hours or fined up to three dinars. [Paragraph 153 of Law Number 23 of 1971"> The Tribunal can initiate legal proceedings against counsel if, in its opinion, their conduct “becomes offensive or abusive or demeans the dignity and decorum of the Special Tribunal or obstructs the proceedings.” [Rule of Procedure 31">. The International Criminal Tribunal for the Former Yugoslavia imposed (and later suspended for health reasons) a sentence of four months imprisonment on a witness who defiantly refused to answer questions and comply with the court’s instructions. [“Contempt Proceedings Against Kosta Bulatovic”, Case No. IT-02-54-R77.4, “Decision on Contempt of the Tribunal”, 13 May 2005"> Another panel of international judges wrote that “the purpose and the scope of the law of contempt to be applied by this Tribunal is to punish conduct which tends to obstruct, prejudice or abuse its administration of justice in order to ensure that its exercise of the jurisdiction which is expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded.” [Prosecutor v. Aleksovski, Case No. IT-95-14/1-AR-R77, “Judgement on Appeal by Anto Nobilo against Finding of Contempt”, 30 May 2001 (“Aleksovski Contempt Appeal”), para. 36">: The practice of international judges has been to recognize that the pursuit of justice itself is the real victim of open and defiant contempt of court rather than the individual court or judge attempting to administer justice. In the face of persistent defense refusals to comport themselves with dignity and a seriousness appropriate to the enormity of the evidence, the judges in Baghdad should have no hesitation to order contempt proceedings for defense counsel who defy orders that are within their powers and appropriate in the circumstances.

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