Issue #1: Does Saddam Hussein have a right to represent himself before the Iraqi Special Tribunal like Slobodan Milosevic has done at The Hague?

YES by William Schabas

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 87 (2006).

Inspired by the example of Slobodan Milosevic, Saddam Hussein may choose to represent himself in court. He seems to have no shortage of lawyers. One report says that as many as 2,000 attorneys claim to be retained. But Saddam is surely an intelligent and articulate advocate, and can probably do a competent job.

Article 14 of the International Covenant on Civil and Political Rights, the principal human rights treaty governing Iraq, a person accused of a criminal offence ''''to defend himself in person or through legal assistance of his own choosing''''. There can be no ambiguity about the text of this provision. However, in its rulings on the Milosevic case, the International Criminal Tribunal for the former Yugoslavia has held that this is not an unlimited right, and that there are implicit exceptions.

One exception, of course, is the defendant who disrupts the proceedings. This should not be confused with an accused who undertakes an aggressive and vigorous defense. But where a defendant does not comport in an appropriate manner, he or she may be removed from the courtroom. Really, the rule is no different whether the defendant is represented by counsel or not. Nor is it any different with respect to any other individual in the courtroom.
Assuming, for the sake of argument, that Saddam is mature enough to behave appropriately, are there any other grounds allowing the court to deny him the right of self-representation?

The ICTY seems to have endorsed the idea that an accused person''''s ill health, at a level rendering him or her unable to put in a full day''''s work, might be a good reason. However, in the Milosevic case the Appeals Chamber did not seem to think that the medical problems of the accused, which had reduced the pace of the trial significantly, were so important as to justify counsel being imposed. It seems unfair, indeed discriminatory, to deny the right of self-defense because of poor health, which is, in effect, a form of disability. Would a blind man be denied the right of self-defense? The ICTY Appeals Chamber found one isolated decision in the United States that denied the right of self-defense to a stuttering defendant.

The Special Court for Sierra Leone has also ruled that the right of self-defense can be denied in the interests of a speedy trial. This is only one of several questionable decisions by that body. The ICTY Appeals Chamber passed in silence over the Special Court''''s ruling; if it had anything positive to say about it, surely the judgment would have been mentioned.

There is no support in the case law for the proposition that an important accused, like Saddam Hussein or Slobodan Milosevic, forfeits the right of self-defense because of his or her position, although this idea seems to have been entertained by some academic writers. Their logic is hard to follow. If they are right, why doesn''''t it apply to the right to defense generally? After all, the accused is certainly required to instruct defense counsel. How does denying an important accused the right of self-defense differ from denying such a person the right of defense altogether?

The right of self-defense is set out unambiguously in article 14 of the International Covenant, and any limitations have been applied very strictly by the ICTY Appeals Chamber. So while Saddam Hussein might forfeit this right by behaving inappropriately, as long as he follows the rules the right can''''t be taken away from him.

I have never believed the tired old saw about a man who defends himself having a fool for a client. Saddam Hussein knows the facts and the issues. No person can be more familiar with the case and the charges. He may well prove to be his best lawyer. Good luck to him!


NO: By Michael P. Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 84 (2006).

At the start of the Slobodan Milosevic trial before the International Criminal Tribunal for the Former Yugoslavia in February 2002, the presiding judge, Britain''''s Richard May, ruled that "under international law, the defendant has a right to counsel, but he also has a right not to have counsel." Judge May''''s ruling gave Milosevic the chance to make unfettered speeches throughout the trial. In contrast, a defendant is ordinarily able to address the court only when he takes the stand to give testimony during the defense=s case-in-chief, and in the usual case, the defendant is limited to giving evidence that is relevant to the charges, and he is subject to cross examination by the prosecution. The decision to permit Milosevic to represent himself in court also affected the ability of the judges to control the dignity of the proceedings. As his own defense counsel, Milosevic has been able to treat the witnesses, prosecutors and judges in a manner that would earn ordinary defense counsel a citation or incarceration for contempt of court. In addition to regularly making disparaging remarks about the court and browbeating witnesses, Milosevic digresses at length during cross-examination of every witness, despite repeated warnings from the bench. Milosevic, who spends his nights at the tribunal''''s detention center, has no incentive to heed the judges'''' admonitions.

To the extent that he is playing not to the court of law in The Hague, but to the court of public opinion back home in Serbia, Milosevic''''s tactics are proving quite effective. The daily broadcasts of his trial (paid for by the US Agency for International Development) have consistently ranked among the most popular television shows in Serbia. His approval rating in Serbia doubled during the first weeks of his trial. A poll taken half way through the trial found that thirty-nine percent of the Serb population rated Milosevic''''s trial performance as "superior," while less than twenty-five percent felt that he was getting a fair trial, and only thirty-three percent thought that he was actually responsible for war crimes. Milosevic has gone from the most reviled individual in Serbia to number four on the list of most admired Serbs, and in December 2003, Milosevic easily won a seat in the Serb parliament in a nation-wide election. The decision to permit Milosevic to represent himself has thus undermined one of the most important aims the Security Council sought to achieve in creating the Yugoslavia Tribunal: to educate the Serb people, who were long misled by Milosevic''''s propaganda, about the acts of genocide, crimes against humanity, and war crimes committed by his regime.

Like Milosevic, Saddam Hussein is also an attorney by training, with his law degree from the prestigious Cairo University. Taking a page out of Milosevic''''s play book, Saddam Hussein''''s legal staff is likely to file a pre-trial motion, asserting that Saddam Hussein has a right to represent himself before the IST. Must the IST grant Hussein''''s motion, thereby enabling Hussein to appear on the nightly news throughout the Middle East, riling against the illegal U.S. invasion of Iraq, insisting that the United States was complicit in Iraqi war crimes against Iran, and encouraging his followers to step up the acts of violence against the United States and new Iraqi government? The answer is no.

When the Iraqi Transitional National Assembly re-promulgated the IST Statute on August 11, 2005, it replaced the clause from the December 10, 2003 version of the IST Statute (Article 20(d)(4)) that had provided that the accused has a right "to defend himself in person or through legal assistance of his own choosing" with a new provision (Article 19(4)(d)) that states only that the accused has a right "to procure legal counsel of his choosing." Based on the Milosevic precedent, Saddam Hussein''''s lawyers are likely to argue that fundamental human rights law, enshrined in the Covenant on Civil and Political Rights, an international treaty to which Iraq is a party, requires that Hussein be allowed to represent himself, notwithstanding this change to the IST Statute. Like the original wording of the IST Statute, Article 14(3)(d) of the Covenant provides that a defendant has the right "to defend himself in person or through legal assistance of his own choosing." But the negotiating record of the Covenant indicates that the drafters'''' concern was with effective representation, not self-representation. Based on the negotiating record, distinguished commentators such as Cherif Bassiouni have concluded that "whenever it is in the best interest of justice and in the interest of adequate and effective representation of the accused, the court should disallow self-representation and appoint professional counsel." It is also significant that most civil law countries including France, Germany, Denmark, and Belgium, among others, require that defendants be represented by counsel in serious criminal cases. Interpreting the clause in the European Convention on Human Rights with the same language as Article 14(d)(3) of the Covenant, the European Court of Human Rights has affirmed the right of States to assign a defense against the will of the accused in the administration of justice.

Even if there is an international right to self-representation, it would be at most a qualified right. In its 1975 ruling in Feratta v. California, the U.S. Supreme Court held that there is a right to self-representation in U.S. courts, but that the "a right of self-representation is not a license to abuse the dignity of the courtroom." U.S. appellate courts have subsequently held that the right of self-representation is subject to exceptions -- such as when the defendant acts in a disruptive manner or when self-representation interferes with the dignity or integrity of the proceedings (as would be the case with Saddam Hussein). Drawing on this precedent, in September 2004, the Yugoslavia Tribunal reversed Judge May''''s earlier ruling, and held instead that Milosevic had to have trial counsel for the remainder of his trial. In the Yugoslavia Tribunal''''s view: "If at any stage of a trial there is a real prospect that it will be disrupted and the integrity of the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has a duty to put in place a regime which will avoid that. Should self-representation have that impact, we conclude that it is open to the Trial Chamber to assign counsel to conduct the defense case, if the Accused will not appoint his own counsel." This decision was affirmed by the Appeals Chamber of the Yugoslavia Tribunal in November 2004. Other international tribunals, including the Rwanda Tribunal in the Barayagwiza case and the Special Court for Sierra Leone in the Norman case have also assigned counsel over the objections of a defendant who wished to represent himself.

International Law requires that Saddam Hussein be afforded a fair trial, which can best be achieved by ensuring that he is vigilantly represented by distinguished legal counsel, not by permitting him to represent himself.

For a fuller treatment of this issue, See Michael P. Scharf and Christopher M. Rassi, Do Former Leaders have an International Right to Self-Representation in War Crimes Trials? 20 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 3-42 (2005).

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