Monday, October 17, 2005

The trial of Saddam

In two days the trial of Saddam Hussein is scheduled to begin. Most Americans will regard this proceeding as a non-event, an entertainment spectacle falling somewhere between that of Timothy McVeigh and the afternoon TV judge shows. But in the same way that the O.J. Simpson trial left a deep scar on the face of American justice, an enduring symbol of the racial divide that continues to plague our political landscape, this upcoming trial of Saddam Hussein will not be seen through the same careless lenses by others as it will be by the U.S. viewing audience...although that is one of the questions yet to be determined; i.e. whether or not the trial will be televised. No matter what the outcome, a large population of people are going to be angry and see the results as a miscarriage of justice.

Those who presume that a swift conviction and sentence will put an end to the matter are making a serious mistake. At the risk of using the president's words and name in vain, we should remember that many hearts and minds are still pliable, not only in Iraq but throughout the Middle East. Politicians from democratic traditions know and understand the importance of public opinion. They know that the success or failure of any initiative ultimately depends on whether or not their constituents will buy it. Focusing the political will is the main task of leadership as it seeks consistency in an inchoate blurr of conflicting public opinions.

I came across an important resource for this event, The Grotian Moment Blog. I expect to be following this primary source as the trial unfolds.

As arguably the most important war crimes proceeding since Nuremberg, the trial of Saddam Hussein is likely to constitute a "Grotian Moment" -- defined as a legal development that is so significant that it can create new customary international law or radically transform the interpretation of treaty-based law. This Website features key documents related to the Iraqi Special Tribunal, answers to frequently asked questions, and expert debate and public commentary on the major issues and developments related to the trials of Saddam Hussein and other former Iraqi leaders.
I am very aware of a debate within and about our own Supreme court, reflected in the current debate surrounding its composition, regarding the importance of foreign legal opinion as it relates to the US Constitution. (The public discussion about Justice O'Connor's successor seems ignoble compared with this discussion.) A spirited debate on C-SPAN between Justices Scalia and Breyer articulates this argument quite well, with both men advancing compelling arguments on both sides.

The trial of Saddam Hussein is a larger facet of this important discussion. It goes without saying that the impact of this trial on world public opinion, no matter how unimportant that may be to those of an isolationist bent in this country, cannot be overestimated. Those who deny the importance of its outcome on US fortunes abroad are living in a fool's paradise.

So far, the Grotian Moment Blog has explored fourteen points of interest, with pros and cons presented on each. My aim is to look at all the arguments asking myself with each "If I were a citizen of Iraq, how would this argument sound to me? If I were a man on the street in Cairo or Kabul or Delhi or, for that matter, Rome or Chechnya or Beijing...what would this sound like to me?" I'm as interested in the presentation of the facts as well as the facts themselves.

Among the various links I scanned, there is a link to the Official IST (Iraqi Special Tribunal) website. Drilling into the site, I found a gallery of pictures of mass graves that will be part of the evidence brought to the trial. I will be interested to see how and when these pictures and accompanying commentary, and from what sources, will be put into the spotlight. We know or can guess the outcome of this trial, but we cannot be as certain that that outcome will have the effect we want among any who may still fall in the "undecided" camp.

The Grotian Moment Blog is not especially user-friendly and I am not able to track it with Bloglines, so I spent a few minutes putting together the following links for my own use and anyone else who wants to use them. I may or may not follow up with additions as time passes, but for now this is what I have found. (Later: The right sidebar has the same list. I must have missed it by not paying attention. Anyway, it was good practice at blogging.)

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

Here are snips from the commentary illustrating how these questions are being presented.

YES by William Schabas

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?

NO: By Michael P. Scharf

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.

As you can see, the discussion has content as well as form. Consider the question of self-representation in other contexts. Asuming some measure of competence and attention to protocol, how does it look if a court refuses to allow the accused to speak in his own defence? This is not an idle question. For the sake of shaping world public opinion it has to be answered in a way that ordinary people will be able to understand if they are to be persuaded that the outcome of the trial is an expression of justice, not retribution. Dismiss this question carelessly at your peril.

The other thirteen points of discussion are these...

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

Issue #3: Is the Iraqi Special Tribunal, which was established on December 10, 2003 by the Occupying Power and the unelected Iraqi Governing Council, a legitimate judicial institution?

Issue #4: Should Saddam Hussein Be Exposed to the Death Penalty? (Experts Debate the Issues)

Issue #5: Did the Iraqi regimeƂ’s actions to dam rivers, leading to the destruction of the habitat of the Marsh Arabs, constitute a form of genocide?

Issue #6: Did the Anfal Operations constitute Genocide?

Issue #7: Does Saddam Hussein have head of state immunity?

Issue #8: Can Saddam Hussein get a fair trial?

Issue #9: Does the IST protect the basic right to the assistance of counsel?

Issue # 10: Is the Saddam Hussein Trial one of the most important court cases of all time?

Issue #11: Does it make good sense to start with the Dujail case, rather than a greater atrocity like the Anfal campaign?

Issue #12: Whose Justice Anyway?

Issue #13: Does Saddam Hussein Have a Viable Defense Based on the Necessity to Combat Insurgents and Terrorists?

Issue # 14: Should the IST engage in plea bargaining?

Very smart professionals are dedicating years of their professional life to this important case. Anyone tempted to take cheap shots at their historic task should be sensitive to this fact.

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