THE TREND in press and broadcast commentary about the Iraqi High Tribunal has been to describe the proceedings as a judicial train wreck, presided over by a weak judge who has lost control of the courtroom. But this characterization is based on several glaring misconceptions about the tribunal. As an expert in war crimes trials who trained the Saddam Hussein trial judges and heads up the tribunal's Academic Consortium, I want to take this opportunity to clear the record before the myths become set in stone.
Americans viewing the gavel-to-gavel broadcasts of the Hussein trial must recognize that this is an Iraqi tribunal, though it employs the definitions of crimes and the due-process rights developed by the international criminal tribunals. In the Iraqi legal tradition, lawyers employ a far more boisterous courtroom demeanor than we are used to, often shouting at opposing counsel, the witnesses, and the judges. In addition, under the Iraqi Civil Law Inquisitorial system, the defendants as well as their lawyers are permitted to address the court and the witnesses. Therefore, presiding Judge Rizgar Mohammed Amin is not losing control of his courtroom when he permits this conduct; rather he is conducting the trial in accordance with the system under which he has worked as a judge for 30 years.
Far from a train wreck, in just five trial days, the prosecutor has completed an opening statement and the judges have taken testimony from nine witnesses, a very efficient pace even by American judicial standards. With 40 witnesses still to go, the prosecution has already proven the scale of the atrocities, the direct involvement of several of Hussein's co-defendants, and the command hierarchy, all the elements necessary for a conviction in this case.
It was a terrible tragedy that two of the defense attorneys (who had refused the government's offer of security) were killed just after the trial began. But Amin succeeded in crafting a compromise under which the defense counsel have been assigned personal body guards of their choosing, and their families have been moved out of the country for their protection, which should ensure their safety for the remainder of the trial.
As to who is winning the battle of wills between Hussein and Amin, the public needs to know that Hussein's disruptive and disrespectful conduct is a common defense tactic, not just in international trials or Iraqi trials, but also in high-profile domestic trials even in the United States. Perhaps the most notable example was the infamous Chicago Seven Trial, in which Abbie Hoffman, Bobby Seale, and other leaders of the antiwar movement employed every gimmick imaginable to disrupt their trial for conspiring to cause riots during the 1968 Democratic National Convention in Chicago. It is no coincidence that Hussein's American lawyer, Ramsey Clark, had been an adviser to the defense team in the Chicago Seven trial.
It is also noteworthy that Hussein's most outrageous outbursts followed the emotionally compelling testimony of the first female witness to recount Hussein's atrocities. Hussein knew that her tearful presentation could be extremely damaging to his standing among Iraqi Sunnis unless he could find a way to quickly distract media and public attention from it. So he told the judge to ''go to hell," and announced that he was boycotting the reminder of the trial.
Consistent with international standards of due process, Amin could have Hussein hauled into the courtroom and placed in a glass booth, as Adolf Eichmann was at his trial in Israel, to prevent him from interrupting the trial with outbursts. But that would only add to the appearance of injustice, which Amin is trying to avoid. So when Hussein chooses to ''boycott" the trial, Amin has arranged for Hussein to follow the proceedings by video link from the detention center, an approach consistent with international standards that the Rwanda tribunal and special court for Sierra Leone have employed. Not surprisingly, Hussein's boycott was shortlived, as he realized he could score more points from within the courtroom.
Amin may be portrayed in the Western media as an ineffectual judge, but in Iraq he is getting high marks for the conduct of the trial, especially for his judicial temperament.
Michael Scharf is professor of law and director of the International Law Center at Case Western Reserve University School of Law.