Wednesday, February 01, 2006

Grotian Moment Blog: Five short essays

The Saddam trial blog posts five brief essays in the last two days.

Michael A. Newton asks whether the defense team will be held in contempt of court.

...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. ...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...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.” 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.

We'll see what happens next when the court reconvenes. I take this blog entry to be a kind of amicus comment for the court. Not exactly sotto voce having been published on the internet.

David M. Crane writes an assessment of the judge's performance.
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....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 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.

Michael P. Scharf , heading the prosecution, gives the new judge good marks and speculates what he might do as the trial procedes. There are tools at his disposal that have yet to be utilized.

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....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. ...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... the broadcasts could show Saddam’s reactions to the proceedings as they unfold without necessitating that he be physically in the courtroom. 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.

I read into this a not-very-subtle suggestion that the new judge needs to control his temper better.

Paul R. Williams succedes in crafting a positive spin on the change of judges.

...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...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....The psychological contest in the courtroom mirrors the contest between the Iraqi government and the insurgents outside the courtroom.

At the end of the day this is Iraqi justice for the Iraqi people...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

Simone Monasebian comments about a dog that is not barking (...yet?): the importance and particiation of women in this trial. She makes a strong case for women.

Today, some 100 days after the opening of what has been characterized as the “trial of the century”, little, if anything, is said or written about the invisibility of women in a Y chromosome courtroom -- devoid of women judges, prosecutors, and defense attorneys. And so I feel constrained to ask: Is this a man’s world?

[She quotes] Navanethem Pillay, the first female judge at the International Criminal Tribunal for Rwanda (ICTR): Who interprets the law is at least as important as who makes the law, if not more so…I cannot stress how critical I consider it to be that women are represented and a gender perspective integrated at all levels of the investigation, prosecution, defense, witness protection and judiciary."
...I have no doubt that my experience as a prosecutor at the ICTR was shaped for the better by the presence of powerful women leading that Tribunal. I also saw firsthand the effect this had on the women who testified. Insuring that Iraqi women play a prominent role in their own tribunal could go along way to their acceptance and inclusion in other sectors of the New Iraq. Today, Rwanda leads the world as having more women parliamentarians than any other country. I wish the same for my Iraqi sisters.

For those who may say “Iraq is not ready for this”, my Iraqi sisters ask, “if not now then when.” Must it always be “women and children last?” Gender parity and justice is never convenient. [I hear the voice of MLK]
...We often justify the controversial hundreds of millions we spend on war crimes courts by arguing that they are not just about punishment; but also about creating a reliable historical record; facilitating reconciliation; and, inspiring the population with exemplary justice - - a model of a fair court that others can aspire to and replicate. A womanless court falls short of that mark.

It is noteworthy that the president did not mention Saddam Hussein or this trial in last night's State of the Union speech, even though he found language to include a direct comment to the people of Iran. It is hard to discern whether any conclusions can be drawn from this strange formulation of a speech.

I heard this morning that the next court session will be closed. I'll bet defense will appear for that appointment. If not, they will be paving the way for their client to be handled in the manner of Adolf Eichmann.

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