Issue #29: Has the Iraqi Tribunal learned the lessons of the Milosevic trial?

by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 151 (2006).

At the conclusion of the Nuremberg Trial in 1946, Chief Prosecutor Robert Jackson said “Many mistakes have been made and many inadequacies must be confessed. But I am consoled by the fact that in proceedings of this novelty, errors and missteps may also be instructive to the future.” Flash forward sixty years. Today (February 12, 2006) is the fourth anniversary of the start of the Slobodan Milosevic Trial at The Hague. As William Schabas and I document in our book “Slobodan Milosevic on Trial” (Continuum Press), the Milosevic proceedings have been subject to frequent disruptions due to difficulties obtaining witnesses, the outlandish behavior and health problems of the defendant, and the death of the presiding judge two years into the trial. During the training sessions for the Saddam Trial judges which I participated in last year, there were many discussions about the lessons from the Milosevic Trial. This essay assesses how well the Saddam Tribunal has learned from the major errors and missteps of the Milosevic proceedings.

Lesson #1: Keep in short. The Milosevic trial involves a mega-case. The charges against the former Serb leader span atrocities committed in three conflicts (Croatia, and Bosnia, and Kosovo) over a period of a decade. Hundreds of witnesses have testified and thousands of documents have been admitted into evidence. After four years of proceedings, the end of the Milosevic trial may still be over a year away. Critics maintain that the trial has lost its focus and the world has lost interest as the proceedings in The Hague drag on and on.

In an attempt to avoid this problem, the Iraqi Tribunal decided to conduct a dozen mini-trials rather than one mega-trial for Saddam Hussein. The first case focused on a single atrocity -- the retaliatory attack on the town of Dujail and the torture and murder of 143 inhabitants in 1982. This “air tight” case was expected to take no more than thirty court-days, and could be concluded in less than three months. But the Saddam Trial has been subject to a series of postponements to give the defense time to prepare its case, to provide better security to defense counsel and witnesses, to allow for national elections and religious holidays, and to deal with a recurring defense boycott. In over four months, the Tribunal has held only nine days of trial. Unless the pace begins to accelerate, this will be anything but the short trial that was envisioned, and collectively the trials of the Saddam Regime may drag on for years.

Lesson #2: Keep it fair. The Milosevic Trial was presided over by Richard May, a judge from the United Kingdom, one of the countries that led the 1999 military intervention against Serbia. For many Serbs, the selection of a Brit to preside over the case was taken as a sign that the Tribunal would not be capable of fairly judging Milosevic, an impression that was magnified by the fact that Judge May sometimes responded to Milosevic’s outbursts by shouting at the former Serb leader. Then, when Judge May died of a brain tumor, he was replaced by another British judge, who had not even been present for the first two years of the trial. Unlike Nuremberg, which had four alternate judges who observed the trial, to save money the Yugoslavia Tribunal had not appointed even a single reserve judge. Seen in this light, it should come as no great surprise that opinion polls have indicated that most Serbs view the Milosevic trial as unfair.

In an effort to achieve a greater perception of fairness in the Saddam Trial, the decision was made to select a Kurd to serve as presiding judge for the Dujail case, which involved Shi’ite victims and Sunni perpetrators. The man selected for the task, Rizgar Amin, was known for his calm judicial temperament. This was not a judge who could be provoked into yelling at the defendant. In addition, two reserve judges were appointed. Their job was to watch the proceedings and be ready to step in if any of the five judges had to step down for any reason. Unfortunately, Judge Rizgar resigned after five days of trial in the face of intense media and government criticism of his lenient judging style. He was replaced by Judge al-Hamashi, who in turn immediately resigned in the face of accusations that he had been a member of the Ba’ath party. Judge al-Hamashi was then replaced by Judge Ra’uf Abdul Rhaman, who had not been one of the reserve judges assigned to the Dujail case. And then last week, the media reported that Judge Ra’uf may have been tried in absentia and sentenced to life imprison by the Ba’ath regime for anti-governmental activity in the 1970s – an accusation that the Judge will have to address to avoid the appearance of bias. Within minutes of taking over, Judge Ra’uf was already yelling at the defendants and defense counsel, who he ultimately threw out of the courtroom – a move that has been subject to sharp criticism by human rights groups around the world. The damage all this has done to the credibility of the proceedings may be hard for the Tribunal to overcome, no matter how smoothly things run from here on out. And, with defendants and defense counsel who are committed to disrupting and derailing the trial, things are not likely to run smoothly.

Lesson #3: Keep it under control. At the beginning of the Milosevic trial, Judge May ruled that Milosevic had a right to represent himself in the courtroom. Having so ruled, there was little Judge May could do to reign in the defendant as he used self-representation to make disparaging remarks about the Tribunal, to threaten and insult witnesses, and to turn the proceedings into a trial of the US/UK military action against Serbia. After judge May died midway through the trial, the Tribunal reversed his earlier ruling, and appointed a lawyer to step in if Milosevic’s poor health or disruptive tactics threatened to disrupt the trial. Milosevic’s behavior immediately improved, and the pace of the trial sped up considerably.

A year ago, I provided a 60-page memorandum to the Iraqi Tribunal, detailing why Saddam Hussein did not have an international right to self-representation, and explaining the risks of permitting Saddam to act as his own lawyer before the Tribunal. Consistent with my recommendation, in August 2005, the Iraqi National Assembly enacted a revised version of the Tribunal’s Statute and Rules, which made clear that Saddam had to act through legal counsel, so that he could not use self-representation to turn the trial into a political stage from which to attack the United States and new Iraqi Government. In keeping with Iraqi legal traditions, however, Judge Rizgar and Judge Ra’uf have both allowed the defendants to pose questions to the witnesses following their cross examination by defense counsel. This has given Saddam an opportunity to make disparaging and offensive remarks about the witnesses, the Tribunal, the Iraqi Government, and the United States during the televised proceedings. Clearly, the proceedings would have run much more smoothly if the judges had taken the position that Saddam had to act through his appointed counsel and could not speak in the courtroom until such time as he took the stand to testify. Given the fact that Saddam has abused the traditional Iraqi privilege to participate in the questioning of witnesses, it is not too late for Judge Ra’uf to make a mid-trial correction … provided he can first get Saddam to return to the courtroom.

Judge Ra’uf’s attempts to restore greater control over the proceedings were met by a walk-out by defense counsel. Judge Ra’uf responded by telling them “you can’t walk out, you are fired,” and by continuing the trial in their absence with court-appointed public defenders. Saddam and his co-defendants responded by refusing to return to the court. Although the trial sessions have run much more smoothly in the absence of the unruly defendants and their high-powered lawyers, the media and human rights groups have begun to criticize the proceedings as resembling an unfair trial in absentia. To answer this criticism, Judge Ra’uf must do a much better job of explaining his judicial decisions to the public, either by releasing written opinions or by taking a few minutes to do so orally at the beginning of each trial session. In particular, he needs to explain that the defense counsel have (at least temporarily) forfeited their right to continue to represent the defendants through their actions, and that public defenders have been appointed to replace them. He needs to explain that the actions of the defendants constitute a waiver of the right to be present in the courtroom, and that they will watch the proceedings and communicate with their new lawyers from the detention center if they refuse to come to court. And he needs to cite the precedents of the Yugoslavia Tribunal, the Rwanda Tribunal, the Special Court for Sierra Leone, and domestic courts, which indicate that his response to the situation is perfectly consistent with international due process and fair trial standards.

During the training sessions for the Saddam Trial judges last year, one of the judges (it may even have been Judge Ra’uf) asked whether the international trainers thought future war crimes trial judges in other parts of the world would be examining the precedents that were set in the Saddam Trial as we had been looking at the decisions of the Nuremberg and the Yugoslavia Tribunal. For good and bad, the answer is clearly yes.


A Response by Professor David M. Crane:
The Rule of Law is More Powerful than the Rule of the Gun


Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 154 (2006).

Over these past several weeks, tormented and shouting, Sadaam Hussein and his henchmen have tried to turn their trial into political theater. To some extent they have. Yet, as we have seen in the past, from Nuremberg, The Hague, Arusha, and Freetown, eventually the calm deliberation of the law, administered by sober and serious judges will generally win the day. It has to or the proceedings will turn into a threat to peace, not a facilitator of peace in Iraq. On the fourth anniversary of another trial, far from Baghdad, in the Milosevic trial, we need to reflect on how we deliver international criminal justice so that the underlying theme of all tribunals, that the rule of law is more powerful than the rule of the gun, will continue to advance.

Professor Michael Scharf’s three points are important for our consideration as they are keys to success--they were in Freetown during my tenure as the Chief Prosecutor and they will be in Baghdad. Lengthy court proceedings in this environment, charged with pain, suffering, and political intrigue need to be well planned, with a clear beginning and an anticipated end. Though the law must be seen to be fair, it also must be seen to be efficient and effective. Lengthy proceedings can leave that impression that it is not effective and undermine the respect for the tribunal itself. In my opinion, the longer the trial, the greater the chance for the entire process to unravel around the edges.

The law has to be seen as fair. That was what I told the victims in Sierra Leone at my many town hall meetings with them. Any appearance of bias against the accused on the part of the judges can be fatal. The Iraqi people are going to have to live with the result and if they perceive it as unfair they will not live with the result I can assure you.

I have a concern about an appearance of bias on the part of the new Chief Judge, currently presiding over this stage of the trial of Sadaam. An Iraqi Kurd, who lived in a village destroyed by Sadaam, a defendant, can give the appearance of just such a bias. This may bring a result that may appear to be unfair to this fledgling democracy. I am surprised that there has not been a stronger move to have the Chief Judge recused.

Despite the perceived bias that could bring the fairness of the proceedings into question, control of the court room is what will allow the proceedings to continue and the victims to come in and to tell the world what took place in their towns and districts. This is a must and must happen very quickly as the proceedings progress. Delay or keep the witnesses from testifying due to control problems and they will be intimidated. Thus another victim may be the truth, further bringing the fairness of the process into question.

All sides have an absolute right to present their case in a way that is fair, open, and efficient. Any one of these ingredients that are missing will show that perhaps in Iraq, the rule of the gun is more powerful than the rule of the law. It is early yet, it remains to be seen.

Posted @ 1:27 AM | Experts Debate the Issues: The Dujail Trial