Hello, I'm Michael Scharf.
Welcome back to International Criminal
Law.
This is our last session of the course
and it's going to be a good one.
Today we're going to wrap things up by
talking about how to maintain control of
the courtroom, when a tyrant is on trial.
Now in the video slide behind me you see
some of the major war criminals, who have
been prosecuted in recent years.
You see Slobodan Milosevic, Radovan
Karadzic, Vojislav Seselj and of course
Saddam Hussein.
What do they all have in common?
Well, they all strategically decided that
they weren't going to win their trial in
the ordinary way.
They weren't going to win by proving
their innocence by playing by the rules.
Instead they were going to be disruptive.
They were going to try to distract
attention, and they were going to try to
go down as martyrs.
And to do that, they had a playbook.
And the judges also had to decide what to
do to try to disrupt the tyrants from
hijacking the trial.
So in today's session, we have the
following historic examples of people who
have done this throughout the ages.
We have going back to the treason trial
of the Sir Walter Raleigh in 1603, where
the trial of William Penn for unlawful
assembly in 1670.
These trials were so messy and disruptive
that there were actually famous paintings
of them.
You have other famous trials in history,
going back through the ages.
More recently, in the United States, we
had the trial of Charles Manson.
Charles Manson of course, was somebody
who 30, 40 years ago now, committed a
series of murders, using a cult group,
mostly of women.
And they were attacking Hollywood stars,
and killing them in the Hollywood Hills.
During his trial, he would have his women
that were co defendants all stand up and
chant in unison.
At one point he jumped up and tried to
attack a witness.
Everything he did was geared not toward
trying to become innocent in the eyes of
the judge, but to try to make a political
point in the eyes of the public.
More recently, you have the trial of the
22nd World Trade Center bomber.
This is the man who missed the plane, but
was part of the conspiracy to blow up the
World Trade Center on 9 or 11.
Zachary Moussaoui and his trial was so
disruptive, he had to be thrown out of
court on several occasions.
The most messy trial that was infamous in
American history, is the trial of the
Chicago Eight also know as the Chicago
Seven, because one of the defendants was
removed partway through the trial.
This case was so messy, that it is the
blueprint for any dictator that wants to
disrupt the trial.
And what you are going to see that's very
interesting is some of the participants
in the Chicago Seven or Eight trial, are
still lingering around and having an
influence in modern day war crimes
trials.
So what happened in that trial?
What happen was in 1968, there were a
number of anti war activists that set of
a series of riots during the Chicago
convention for the democratic election
for president that ends the primary
season.
And during that convention and the riots,
these people played a very big role in
setting off the violence.
So afterward when Richard Nixon became
the President, he decided to make an
example of them.
And he was going to try these people as a
group, for the conspiracy to cause
rioting and violence in Chicago.
Well, they weren't going to play by the
rules and they were the leaders of the
anti-war movement, like Abby Hoffman and
Bobby Seals.
And so what they did instead, is they
would drape a swastika over the defense
table.
As you see in this slide, in order to try
to say to the world this isn't a fare
trial, this is like those Nazi trials.
The ones we saw in our first class
session in the movie Judgement at
Nuremberg.
Further, they sewed the Jewish star to
their suits, to try to indicate that they
were being treated as the Nazi's treated
the Jews, unfairly.
they did other things like chanting.
They sat with, on the floor with their
back to the judge, they refuse to stand
up and say your honor.
They did every thing possible to make
this judge just kind of go crazy angry
because he was losing control of his
court room.
So at one point when Bobby Seals, one of
the defendants turn to the audience and
says, you know if the judge mistreats me
what must be done.
And he was suggesting that they should
just start a riot in the courtroom.
The judge said, whoa, we have to gain
control and the way he did it was by
putting handcuffs and putting a gag
around Bobby Seal's for the rest of the
trail and here's a picture of that.
Can you imagine a trial where the
defendant is in the courtroom looking
like that.
It's not something that gives the public
a sense that quiet justice is being done.
And unfortunately for Judge Hoffman,
rather than going down as a crusader for
justice, he went down as a judge who had
overreacted.
Who had lost control of the proceedings
and ultimately this resulted in
acquittals, overturning the convictions
of all the people at the trial.
Now in modern times, we've seen the
trials of Slobodan Milosevic at the
Yugoslavia Tribunal, Radovan Karadzic at
the Yugoslavia Tribunal.
Saddam Hussein at the Iraqi High
Tribunal, Vojislav Seselj at the
Yugoslavia tribunal, and Charles Taylor
at the special court for Sierra Leone.
What do they all have in common?
They all represented themselves.
Now we talked in a previous session about
how difficult it is for the judges to
control a defendant, when he's acting as
his own lawyer.
And they all used a series of exploits
that they had learned from looking back
at the Chicago Seven trial.
Now interestingly, one of the consultants
to the Chicago seven trial was the former
attorney general, Ramsay Clark.
That same individual was a consultant to
the Milosevic trial and a defense council
in the Saddam Hussein trial.
And it is a clear connect the dots, that
these defendants learned the tactics that
worked.
Not only from looking back at the Chicago
Seven trial, but probably from talking to
their consultants including, Ramsey
Clark.
So, one of the things that is important
for a judge in such a situation to do, is
not lose control of his courtroom, not
lose control of his temper but rather to
be calm and collected.
I was one of the experts who helped train
the judges for the Saddam Hussein trial.
And collectively, the judges picked a
judge who was known as one of the calmest
of all.
His name was Judge Rizgar Amin.
So here you see Saddam Hussein in the
courtroom.
And he's up against Rizgar Amin.
And it's the battle of the wills.
Rizgar Amin kept his calm.
He kept his cool.
When Saddam yelled, Rizgar smiled.
When Saddam shouted, Rizgar sat back.
But, what was unanticipated however, was
that the Iraqi people did not like a calm
judge.
This was very different than what they
were used to in the courtroom.
And what they wanted to see with respect
to Saddam Hussein, they didn't want to
see a judge who was just relaxing and
taking it easy.
They wanted a judge who would give it as
well as get it.
So they switched judges to Judge Ralph.
Judge Ralph whose name means peace and
fairness in Arabic, was anything but that
to Saddam Hussein, he was a tough, tough
judge.
He yelled, right back at Saddam, he
screamed at Saddam, he threw Saddam out
of the courtroom and for a while this
seemed to have the right effect.
Saddam was cowed no longer did he look
like the old strong dictator.
He looked like a weakened defeated
defendant.
So, in this case, contrary to our
expectations, what the Iraqi people
wanted and needed was a strong willed
judge, who would be tough in the
courtroom.
But the international community did not
respond the same way that the Iraqis did.
What they saw was a judge who was being
unfair to Saddam, a judge who they
thought was overly aggressive, a judge
who is very much like Judge Hoffman from
the Chicago Seven trial.
Now, what kind of people end up being the
defense counsel for these different
dictators and tyrants that are on trial?
And this is a good question because it
tells us a lot about the strategies that
a judge would need to keep control of the
court.
So, you have on one hand people like
Ramsey Clark.
As I mentioned, he was the former
Attorney General.
And he usually represents people like
Slobodan Milosevic or Saddam Hussein.
Not because he thinks they're fair or
applauds what they did, but rather
because his strategy is to put American
foreign policy on trial.
In the case of Milosevic, Ramsey Clark
did not approve of the fact that the
United States and the NATO countries, had
invaded Yugoslavia in 1999 without a
Security Council Resolution authorizing
it.
The UN, or the NATO countries said that
they were doing it to save the lives of
the Kosovar Albanians.
But according to Ramsey Clark and others,
this was a violation of the UN charter
because they weren't authorized to do so.
And he was going to make sure that that
was clear during the trial of Slobodan
Milosovic.
In the case of Saddam Hussein it was very
similar.
The United States and some allies invaded
Iraq in 2003 again without security
council approval, and Ramsey Clark wanted
to make the point in the trial that the
invasion was unlawful.
Whatever Saddam did well that was one
thing, but we also have to know according
to Ramsey Clark that what the allies did
was very bad.
And that's why he took that case.
Well, then you have people like Johnnie
Cochran.
Now he is not defended in international
criminal and he is passed away couple of
years ago.
But he grew famous for defending one of
the most famous of all of the defendants
in a US court case, and that was of
course, O J Simpson.
And that trial was a three ring circus
and Johnnie Cochran was the conductor.
He in fact, got an acquittal in that
case.
And people like Johnnie Cochran I
suppose, sign up for these cases because
they're great defense council and they
want to be even bigger and more famous.
And someone like Johnny Cochran, and in
fact, everybody involved in the O J case,
became famous after the trial.
They became literally celebrity lawyers.
another example of someone who is famous,
but doesn't take on cases for that reason
is Alan Dershowitz.
He's the Harvard Law professor who seems
to go around looking for the unwinnable
cases.
He's the modern day F Lee Bailey.
He's the one who is looking for cases
that nobody else will touch, becasue
there's almost no way to win.
And he takes his team of I guess law
students, assistants and other people who
are helping him out pro bono and they
work miracles.
And he often will pull a rabbit out of
the hat and win the case.
And that seems to be what makes him take
on cases.
And he has in fact, taken on some of the
cases of the major war criminals.
Then you have someone like Greg Keho.
Greg Keho was actually one of the, he was
a US prosecutor.
He was one of the people that was
involved from the US side in helping to
create the trial of Saddam Hussein.
Afterwards, he won up to the Yugoslavia
tribunal and became a defense council.
And he is one of the few lawyers in the
world to have gotten an international
criminal acquitted by an international
tribunal.
And he's just a super lawyer and he
lives, and breathes this kind of thing.
Similarly, is an old friend of mine, Kate
Gibson, who is a new breed.
A, a young lawyer who looks for the
excitement, and who looks for the
challenges of international criminal
justice.
She began her career defending people in
the Bagosora trial, in the Rwanda
Tribunal, and she got an acquittal.
She's since been up at the International
Criminal Court and the Yugoslavia
Tribunal.
And she is one of the young breed of
lawyers who does it because she has a
passion for justice.
She believes that these defendants
whether they're guilty or not, need the
best defense possible in order for the
tribunals to be seen as fair.
So when you look at this cast of
characters, you see that there is a
diversity of reasons that defense council
will take on these cases.
And a judge has to look into the mind of
the defense council and try to figure out
what is it that makes the defense council
tick.
As well as what makes the defendant tick,
in trying to shape the strategies for
maintaining control of the proceedings.
One of the major issues that comes about
in the beginning of every international
trial, is the question of whether it
should be televised or not.
When I was helping to train the judges of
the Iraqi high tribunal, we spent an
entire day debating whether or not those
trials should be televised.
On the one hand, the judges pointed out
that the very first international
tribunal trial, that of Duško Tadić at
the Yugoslavia Tribunal was televised.
In, in addition, the Nuremberg trials
were show on movie clips that you could
go and watch, the begging of movies,
during the 1940's as they unfolded
throughout the world.
They were also on the radio for the
Germans to listen to.
So since the Duško Tadić's trial in the
Yugoslavia Tribunal, every international
tribunal trial has been televised.
So the Iraqi High Tribunal said, well, if
they're going to televise, then we must
televise because the world has to see the
fairness of our proceedings.
And the victims have to see the evidence
against the dictator, and his former
colleagues have to see that he is
defeated and that the rule of law has
vanquished him.
So this was in their mind but what we
told them is, let's be practical.
If Saddam Hussein gets to be in a
televised trial, and if he gets to
testify or as it turned out, he gets to
act as his own co-counsel, he is going to
hijack the proceedings.
He is going to look into the television
cameras, and he is going to exult his
former, followers to resort to violence.
And he is going to turn it into the
messiest trial you ever saw, and the
trial is not going to look fair.
So, we said, you know, you really, really
should think twice about televising.
But in the end they thought that on
balance it was better to televise than
not to televise.
I think that at this point it's hard for
any international trial not to televise,
because the question would be well what
are you trying to hide, all of the other
tribunals have televised.
But I think that on a case by case basis,
it actually makes more sense sometimes
not to televise.
We'll talk in a few minutes about a
compromise, which is sometimes you have
to turn off the cameras in order to
regain control of your courtroom.
Let's look at the, the next slide.
And this is to asking us, well, what are
our options outside of court?
What can Judge do to try to get into the
mind, the psychology of the defendant.
And use carrots and sticks to try to get
them to behave themselves in court, when
their main goal is just to disrupt the
proceedings.
Well there's a variety of things that
every defendant gets, and these are
things that international law does not
require them to have.
For example, reading material.
The defendants are in jail.
They're bored.
They're smart.
Most of them are lawyers, as I pointed
out before.
And they like to read.
So, if they are not behaving, you can
always take away their reading material.
Does that violate international human
rights?
No, but it could be a big inducement for
them to behave themselves.
Well, what else do they get?
they get recreation time.
And when you're inside in a jail
especially in the Hague where it's gray,
you want to be outside especially on
those nice sunny days that come
infrequently up in the Netherlands.
Well, you have to give every defendant
pre-trial exercise time, you have to
worry about their physical well-being,
but you don't have to let them go outside
and play soccer.
So there are things you can take away.
Not only that, but most of the tribunals
now have exercise machines, and other
high tech equipment that the defendants
like to take advantage of.
Now I know you're thinking some of those
guys are pretty old, I can't imagine them
on these machines.
But in fact they, they really like their
time of recreation and exercise.
So, you could tell them they can't use
their stair stepper until they behave
themself in the courtroom.
another thing you can look at is the fact
that they all watch a lot of television.
And in the Netherlands where the prison
is, for the many different tribunals that
are based there.
They have big screen TV's, and the
Yugoslav defendants can watch in serbo
croatian their favorite shows beamed from
satellite from back home.
Is that something they have a right to
under human rights law?
No, so that can be taken away if they're
misbehaving.
further, the international tribunals
encourage them to play instruments, and
they encourage them to learn art and, and
do arts and crafts.
if you go to the international tribunal's
jail cell, as I have, you will see that
there are paintings and pots that have
been done, beautiful pieces of work.
You would never believe that these
tyrants could be so artistic, and they
love it.
Well, if they're misbehaving that's
something else you can take away.
And here's the last one.
In the international tribunal's prison in
the Netherlands, there is a room that
happens to be yellow.
And it happens to have several beds and
there's a couple of these rooms next to
each other.
And they're for conjugal visits.
That's right, the defendants are allowed
to have people visit them so that they
can have sexual relations, when they have
a chance to have their wife or
significant other in town.
Well, that's not necessarily something
that you get under the rules of human
rights.
And it's a very strong inducement.
You can say, until you start behaving,
we're going to close the door to those
yellow rooms.
All right, so you see that the judges
hold some cards as well.
What's interesting though, is that none
of the judges have played those cards.
And that's because, especially in the
Netherlands, there is a sentimentality.
A sentiment that you have to really treat
these defendants, who are not yet
convicted and who were previously major
world leaders, with due respect.
And that means you shouldn't take away
these kinds of things like books and
recreation time and TVs.
But if the defendants are misbehaving in
the court room, I say to the judges wake
up this is the one card you have.
Well there are some other things they can
do.
And let's look at for the remainder of
this session, some case studies,
hypothetical which I asked you to work on
before class and to post your thoughts
about.
We go through them in order.
The first one.
What if the defendant publishes books
during the trial that are offensive about
some of the trial participants?
This isn't just a hypothetical in fact,
Vojislav Šešelj.
this is the guy who used to lead a
paramilitary group called the Eagles, who
were accused of playing soccer with human
heads of their victims.
This is a guy who's been accused of
horrible things.
He's on trial, he's representing himself.
And what does he do?
He writes books in Serbian about the
different people that are involved in the
trial.
He wrote a book about Carla Del Ponte,
the Chief Prosecutor, in which he said
that she was the prostitute of the Hague.
She, he used a different word.
he wrote a book about Jeffrey Neese, who
was the Chief Trial Attorney.
In which he accused him of being
bisexual.
And of having relationships with many,
many people involved in the trial.
And he wrote a book about the Chief Judge
of the Appeals Chamber, Ted Marone.
An American who's been there for many
years.
And he's called him the genocidal Jew of
the Netherlands.
So, you can see that these books are
really disturbing and they can get under
the skin of the trial participants.
And they're designed both to do that and
get the people back home to hate the
trial, and think they're unfair.
Well, what would you if you were a judge,
and you found out that a defendant was
sneaking manuscripts out through his
lawyer?
One thing you could do is you could say,
we're going to search that lawyer.
Nobody comes in and out without a full
search.
And maybe it has to be a body cavity
strip search, because you know, a little
flash drive can fit almost anywhere.
I think that another alternative than one
that the judges probably would resort to
in this situation, is just to keep calm
and ignore it.
What harm does it really do if these
nasty books that say all sorts of things
that nobody can take seriously are out
there.
If the judges are above it, then the
judges shouldn't have to worry too much
about it.
Well, they have those two alternatives.
Let's look at the next hypothetical.
what about if the defendant does
offensive filings.
In other words he swears and curses, and
says all sorts of sexually explicit
things about the judges in his filings to
court, which are public records.
Here again Mr Seselj has done that very
thing.
He has said things like, this honorable
court must suck my dot dot dot.
And you can imagine how that must make
the judges feel, when they're reading
what should be serious filings.
Now, there is an answer to that.
they could just simply redact the
filings.
They you could have for example the
registrar, or the clerk of the court go
through and just cut out the passages.
On the one hand you would think that the
judges need to see everything that's
there and, and probably the public would
want to know what's being redacted.
But if the defendant who is representing
himself is abusing the process by putting
all sorts of nonsense, obnoxious
obscenities into the court papers, and
those court papers are going to made
public.
Then this is the way to go.
Let's look at the third hypothetical.
This is where the defendant refuses to
honor the Judge.
Now, this can happen in a lot of
different ways.
I told you in the Chicago Seven trial
that the defendants refused to stand.
They refused to call Judge Hoffman, Your
Honor and they would often sit on the
floor with their backs to the judge.
There are other ways that can be equally
offensive.
Here, you have a picture of a defendant
in an American court case who is
literally mooning the judge.
Can you imagine how you would feel if you
were the judge and this happened in your
courtroom?
Well, there are ways to deal with that.
One way is you can get all mad, you can
look like Judge Hoffman did in the case
of the Chicago Seven as in this picture.
just go ballistic, but that's not going
to get you anywhere.
So again, this is probably a situation
where in the immediate time, the best
thing to do as a judge is just keep calm.
And just ignore it.
You starting to hear a mantra hear?
let's look at another hypothetical.
What about inappropriate dress in the
courtroom?
There are times when in order to be
distracting, people will literally start
taking off their clothes in court.
This is picture of Sadaam's brother
Barzan, who ran the Secret Service and
was tried as a co defendant in the Saddam
Hussein trial.
He came to court in his underwear.
I mean look at him, he's wearing his Long
Johns.
That's gotta be a little bit disturbing.
And what about Saddam, taking off all of
his clothes.
This actually was not a picture from
court, but it could have been.
And there's been worse.
There have been times when people in a US
court, literally took of all their
clothes.
Well, one of the solutions for that is
you can say, look if you can't come to
court properly dressed.
We're going to dress you in the, the
orange garb or whatever the garb is of a
defendant who isn't wearing their nice
pressed suit that Saddam always wore.
And if you're going to rip your clothes
off.
Well, we're going to have to put you in
handcuffs.
So there are ways, in an extreme
situation, to make sure people remain
clothed in the courtroom.
I bet you never would have thought this
would've been a problem but in fact, this
is the kind of thing that international
judges are frequently having to deal
with.
What about spontaneous prayer breaks?
This happenned in the Saddam Hussein
trial.
Whenever one of the, the witnesses would
be talking about the most horrifying
things that happenned to her.
In this case the witness was describing
how she was abused and shocked and
whipped, and tortured.
And just when she was getting to the
height of her testimony, and people
around Iraq were all ears were listening
to this.
All of the sudden all the defendants
stood up and said it's time for a prayer
break.
And it wasn't one of those major times
during the day when you hear the, the
sound of prayer and the call to prayer.
No, this was a spontaneous prayer break.
And there's Saddam waving the Koran
saying, I have a right, a religious right
to pray to Allah.
Saddam, the very man who was accused
years earlier of being a secular leader
who didn't care enough about his
religious upbringing and background.
There he was raising the Koran and
saying, I have a right to pray, right
now, in the middle of this testimony.
Well, this was very disruptive.
It, it hijacked the trial.
The people who were watching on TV didn't
get to find out from the witness the
horrible things that were happening.
They all were just wondering what the
judges were going to do.
Well, what can the judges do in this
situation?
This is one where a judge has to be very
sensitive.
You should as a judge be sensitive, and
sympathetic to the religious practices of
the defendants.
But you should not just allow them to
spontaneously jump up whenever they want,
rather set the ground rules.
Say alright we're going to have prayer
breaks.
We're going to have recesses.
You're going to have a chance to pray in
your traditional way, but not in the
middle of testimony.
And that's very important.
If you set the ground rules from the
beginning, if everybody knows what they
are, then it won't look unfair, when you
enforce them.
Let's look at another hypothetical.
This happens all the time in these trials
of major tyrants, political speeches
during cross examination.
Whether you're Melosavich and you're
representing yourself, or you're Saddam
Hussein and you're acting as co-counsel
to your retained counsel.
What you do is instead of asking
questions, you start saying political
speeches.
And these individuals, all of them, that
are tyrants on trial are amazing speech
makers.
I mean going back to someone like Hermann
Goring, who people said got the better of
Robert Jackson during the cross
examinations at Nuremberg.
You have had a series of people on trial,
who are amazing speech makers.
And that's what they want to do during
their trial.
And they're going to try to turn cross
examinations into speech time.
Well, what do you do as a judge in that
situation?
one thing you can do is you can just turn
off their microphone.
You make it so that nobody can hear what
they're saying when they start making
speeches.
You say excuse me until you ask a
question we're going to turn off the
sound, nobody in the world is going to
hear what you're saying, and so you're
wasting you're breath.
And here you have a picture of the
microphone and a judge's panic button,
something that I suggest that judges in
international tribunals should always
have.
Well, there are other things you can do
in this situation.
You should probably begin by giving a
warning.
as I've said before, you don't want to
jump to the nuclear action.
You want to have a calibrated and
proportionate response to everything that
a defendant does in the courtroom.
So you start with the warning and then
maybe.
You say if you can't behave yourself, if
you keep giving these speeches, I'm going
to temporarily revoke your right to act
as your own lawyer, and I'm going to
bring in the standby lawyers.
We've talked about that in the last class
session.
These are people who are public defenders
that are appointed at the beginning of
the trial, ready and willing to jump in
at any moment when called upon to do so.
And this would be a moment.
And then you could say to the defendant,
alright, we're not going to revoke your
right of self-representation permanently.
We're going to follow the precedent of
the Yugoslavia tribunal, which said it
had to be proportionate and calibrated
response.
So we're going to impose a three strikes
you're out rule.
The first time you misbehave, you lose
your right to represent yourself for the
rest of that day.
But we'll let you come back in the
courtroom the next day, and if you
apologize and behave yourself, you can go
back to representing yourself.
If you do it a second time again, we'll
take it away maybe for a couple days this
time.
And then, we'll let you back again, and
if you lose it a third time, well, that's
it.
Now you have to watch the trial
proceedings from another place, or you
have to just sit quietly, because you're
not going to be representing yourself
anymore.
abuse it and you lose it.
Alright.
What about disruptive outbursts?
This can happen not just for someone who
is representing them self, but any
defendant.
And what they do is they just jump up and
start screaming obscenities, or they sing
their national anthem, or they yell you
lie, you lie, you lie.
Whatever, you can imagine.
Well, what would you do if you're a
judge, and you started to hear this on a
regular basis.
one of the things you can do is say
defendant, we need to keep the courtroom
nice and quiet.
So, we're going to put you in a little
booth.
A sound proof booth, and except for when
your microphone is on, nobody is going to
hear what you say.
This actually was done in the case of
Adolf Eichmann.
he was one of the subordinates of Adolf
Hitler.
He's the guy who got the trains to go to
the concentration camps, to run faster.
To kill more people, and he was
ultimately prosecuted and tried in Israel
in the 1960s.
a case that was made famous by Hannah
Arendt in her book, Eichmann in
Jerusalem: The Banality of Evil.
Well, part the reason he was seen as a
banal charecter is because he was in a
glass box, and nobody could hear him yell
and rant.
Now I suppose that, that's not going to
work for everybody.
I can imagine that if Saddam was in a
glass box, he'd probably start hitting
his head against the box until blood was
spurting out of him in order to get the
attention of the people in the courtroom.
So, I mean, this is only going to work to
so much an extent.
But it's a, it's a good way to start.
And you might be asking yourself, why
didn't they have a glass box in the
Saddam trial?
And this is a funny thing.
They actually designed the courtroom with
a glass box in mind.
At the, suggestion of the international
experts, including myself.
But the court room floor was not strong
enough, structurally sound enough to hold
the glass box above it.
So, they had to scrap that at the very
last minute.
Which was unfortunate because as things
went Saddam caused a lot of trouble by
making these disruptions.
Well, what else could you do?
In the case of Zacarias Moussaoui, the
22nd bomber of the World Trade Center on
9 or 11, this was a trial where he was
extraordinarily disruptive.
He jumped up and screamed and yelled at
the judge, and the judge whose name was
Leonie Brinkema was a strong judge.
And she said Mr Moussaoui, if you do that
again I'm throwing you out of the court,
and she threw him out on three separate
occasions.
And here you have pictures of him being
escorted out of the courtroom.
So one of the things you can do is give a
warning, if the person is still being
disruptive, temporarily remove them from
the courtroom and then again play that
three strikes you're out rule.
From American baseball, which basically
says, we remove you temporarily, you get
to come back if you behave yourself.
Second time you're removed a little bit
longer, but you get to come back.
Third time, you're out of there and where
are you going to be?
Well, you can watch the trial from a jail
cell nearby on closed circuit TV.
And what you can do is watch the
proceedings, and even have communications
simultaneous with your defense counsel.
So when something comes up, you can beep
them and say, listen that defense or that
prosecution witness is lying and you
should ask certain questions on cross
examination.
So there are ways with modern technology,
to maintain the fairness of proceedings
for the defendant, and remove him from
the courtroom so he cannot single
handedly hijack the trial.
Let's look at another hypothetical.
The walkout or the boycott.
Almost every one of these tribunal
defendants have at one time staged a
walkout or boycott.
And in the old days before they had
standby council, this would mean that the
entire trial had to stop until, either,
they came back.
Or council, public defenders could be
selected, trained and educated and
brought up to speed and then resume the
trial.
So you see here a picture of Karadzic on
TV boycotting his trial.
And we know that Saddam Hussein and the
other defendants from time to time, would
walk out, leaving just a couple of
defendants.
These two by the way the ones that
stayed, they ended up getting acquitted.
They weren't part of the cabal of the
other defendants, and they, they realized
that by playing by the rules things would
work better for them.
Not so much with Saddam.
So what do you do in this situation?
You go to your standby public defenders.
You appoint them at the beginning of the
trial, you tell the world that they've
been appointed.
You explain to the world how they've been
educated, that they're up to speed, that
they're ready to step in and that it's
perfectly fair to do so.
And this actually will deter the walkout.
Because the defendants and their lawyers
will realize that if they leave the
courtroom, they can't stop the
proceedings.
They don't hold all the cards, because
the proceedings will keep going on with
the standby public defenders.
Let's look at another hypothetical.
And we're coming toward the end of our
session here.
Getting more and more interesting.
This one is the hunger strike.
When defendants don't get their way they
just start starving themselves.
Now here's a picture of Saddam.
He did so and, this particular whoever
did this photo said this hunger strike is
a hard thing.
Which actually was true.
On cross examination it turned out Saddam
kept saying, that he was not eating.
But in fact, from time to time, he would
be having snacks and food.
So he was having a hard time with it.
But ultimately he started to get very
sick.
And this is a big question for an
international tribunal, for a judge.
What happens if your defendant dies, if
his health gets so bad he literally
expires in the middle of the trial?
This happened in the Slobodan Milosevic
case.
He manipulated his medical intake in
order to disrupt the trial and things
went wrong, and he actually died of a
heart attack in the middle of the trial.
And it wasn't at the beginning of the
trial it was actually right at the end.
So three years of testimony.
Three years and $300 million spent trying
to prove the case against him.
And instead of the case being written
down and a judgement that would have a
historic record that could be believed by
the people in Serbia.
Poof, his death made the entire thing
disappear, because international
tribunals have a procedure that says
we're only able to convict the living.
And if someone dies during the trial,
well the trial has to end.
Now there's a way around that.
If you have a trial of more than one
person, then the trial can go on.
And the evidence that related to the
other person that's also relevant to the
person still alive, can be put into the
final judgment.
So after the Milosevich trial, you see
that most people are being tried jointly
so that their death will not stop the
trial.
But another thing, that judges can think
about is, well we're going to keep the
person alive no matter what.
So, we're going to force feed them, and
this has been done in the United States.
It's been done in other countries.
The Europeans think this is horrible.
The Europeans in the European Convention
on Human Rights and their European Court
of Human Rights have ruled that force
feeding is a crime against humanity.
It is as bad as the atrocities that the
tyrants have committed.
And so they're very much against the idea
of force feeding.
The international tribunals are caught in
the middle of this.
Do they let a defendant starve
themselves?
In the case of Saddam Hussein the Iraqi
High Tribunal force fed him, and
ultimately he didn't like being force
fed.
It's a very painful thing, so he stopped
his hunger strike, he survived his trial,
he was alive to the end.
but in the international tribunals, this
is a question that runs up against
different cultural feelings about whether
force feeding itself should ever be
allowed.
And then maybe that's a moral issue, that
you all who are thinking about this
should be wrestling with on your own.
Okay, number ten.
The defense discloses confidential
witness identities.
In many of these trials it is very hard
to get people to testify.
Often you're talking about victims who
have been raped or abused.
You're talking about people who maybe
have other friends and family that are
vulnerable to retribution and retaliation
by the defendant, and the defendant's
friends.
So what they do is they manipulate the
image and the voice so that the public
only sees a distorted image of the
defendant.
Now if you're in the actual court room,
the defendant sees, I meant the witness,
the defendant sees the actual witness.
But if you're out there in TV land, this
is what you see.
Well what happens if the defendant and
the defense council are told not to say
who these confidential witnesses are, and
yet they disclose their identity?
Wow, that's like a death sentence.
That is a really bad thing.
And so, in the Iraqi High Tribunal when
Saddam's defense council disclosed the
identities of people whose identities
needed to be kept secret for their
protection.
The judge, Judge Ralph said these are not
lawyers they are arsonists.
He was literally saying that the lawyers
had become assassins.
Because this is the most horrible thing
you can do.
The, the rule that should never be
violated.
And so what international tribunals have
done, have put harsh penalties on lawyers
especially in the case of the special
court for Sierra Leone.
Which has recently charged a number and
convicted a number of lawyers of the
crime of disclosing confidential witness
names, and this is something that is an
inherent power of every court.
It's not written into their statutes, but
every court has to have the power, part
of the power of contempt, to keep the
witnesses safe otherwise nobody will ever
testify.
But what happens when the defendant
shouts out the name of the witness?
He says, Witness H, I know you, you're
really Harry, who lives on two one Third
Street, in Downtown Tikrit.
And the whole world would hear.
Well, what they've done in order to avoid
this, is they put a twenty minute delay
on the live proceedings, that are being
televised.
So that means that they can edit out this
kind of information that, that needs to
be kept secret for the protection of the
trial and the witnesses.
Now a lot of people, when they heard that
there was this twenty minute delay during
the Saddam trial.
They said, you know what, they're editing
out Saddam Hussein.
They're not letting us hear his defense.
And that wasn't it at all.
But the judges didn't do a good enough
job of explaining this requirement of the
time delay.
It's something that all the tribunals do,
and it's very important because you
cannot have the integrity of the trial if
nobody will testify.
Because they're scared to death that
their names are going to be disclosed to
the press.
Now not everybody that testifies does so
confidentially, but there are vulnerable
witnesses who are absolutely key to the
trial.
Let's look at number 11.
The defendant attacks trial participants.
Every once in a while you have a trial
that's sees the defendant jump up, grab a
chair, throw it at somebody.
Maybe jump up and, and try to punch
somebody.
I mean this happens in court.
And when this happens, it is very
important that the defendants be
restrained.
So here you have Saddam who is in chains.
And you can do so.
He can be in a suit, and he can have his
chains loose enough so that he's not
encumbered by them.
But still it is going to make sure that
he's not able to jump over and hurt
people or abuse people or, or do those
kind of things.
So that's an, an easy solution and one
that is often applied.
And now, the final one.
The defendant incites violence.
This is something that happens all too
frequently in international criminal
trials.
Here's an example of Saddam Hussein.
In his trial, he pointed his finger at
the TV camera, and he said, I want my
followers out there to kill an American
today, every one of you.
And then he went and he said, and I want
you also to kill the Iraqi's who
collaborate with the Americans.
Now funny thing, Judge Raouf at the time
said, oh, Saddam, shame on you for saying
that.
Shame on you for saying kill an Iraqi, he
said.
I can understand what you're saying about
the Americas, but you should never say
kill your own people.
That shows what kind of leader you really
are.
It was a weird moment in the trial,
probably one that a lot of Iraqis felt
was, was key.
But what we do know is that every time
Saddam stood up and said something like
this, his followers carried it out.
They actually went out and they did
bombings.
And there is an actual graph that was
made that shows that during the trial,
there is, correspondence between the
times he got up and said go out and kill
somebody.
And spikes in violence that almost came
to be an entire civil war in the middle
of his trial.
Now many people say that the Iraqi high
tribunal was a mistake to prosecute in
Iraq when there was a civil war.
But the beginning of the trial there was
almost no violence.
It was throughout the trial that the
violence grew, and some of it had to do,
a lot of it had to do, with the fact that
Saddam Hussein was inciting violence.
So what do you do in that situation.
I think you turn off the television
cameras.
This is where you say, look, again, we
wanted to have a publicly televised
trial.
We wanted the world, and the Iraqi
people, or whatever, to see what was
going on but it's being abused.
The dictator is using it as a way to kill
hundreds, maybe thousands of people.
And at that point, you just have to say,
I don't care if the other tribunals are
televising, we're going to have to stop
the televising.
Now, most of these tribunals don't in
fact, operate in the middle of a combat
area where there's a civil war raging
outside.
And many people said that the Saddam
trial should have been delayed until the
situation had quieted, or it should have
been moved to another country, or he
should have been prosecuted by an
international court.
But the Iraqi people wanted it to be a
home grown domestic proceeding, and one
of the risks of that is that you can have
a lot of violence when the dictator gets
up, and exhorts his followers to do so.
So, it is incumbent on the judges to gain
control of the courtroom even if it means
cutting off the TV cameras.
Wow.
That brings us to the end of this session
on maintaining control of the court in a
case where the tyrant is on trial.
This is one of the biggest challenges
that international tribunals face, that
is involve with international criminal
law.
And one of the mistakes that is always
made is at the beginning of these trial,
they say, we're going to have the fairest
trial possible.
We've done everything necessary to make
sure this is going to be an ultra fair
trial, when in fact, what they should be
saying is international trials are always
messy.
They're inherently messy.
The defendant doesn't want to play by the
rules and it is going to be very hard, no
matter what the judges do, no matter how
qualified and expert they are.
For them to out smart, the defense, in
this cat and mouse game of controlling
the courtroom.
Well, this is a good way to end our
course, on International Criminal law.
We've seen from the beginning the
origins, of this field of law, from
Nuremberg.
We saw the crimes, war crimes, crimes
against humanity, genocide.
Piracy and terrorism that make up this
corpus of law.
We've seen the special rules of
responsibility of the defendant, and the
special defenses that are sometimes
allowed in this context.
We've seen the challenges of bringing
these defendants to trial, and we've seen
the challenges of trying to maintain,
control of the courtroom.
I hope that you've enjoyed this course.
If you're interested in other things in
this area, I have written a number of
books in this field.
And some of them that I recommend in
particular are Enemy of the State, which
is the inside story of the Saddam Hussein
trial.
And the newest book I wrote for the
Cambridge University Press, Shaping
Foreign Policy in Times of Crisis, which
tells the story of the torture memo's,
which we covered also in the course.
I also like to say that my university,
Case Western Reserve, is launching a
online International Business Law course
starting next year.
And if, I will be teaching International
Law, the basic course, as part of that.
We have a number of very amazing
professors that will be teaching.
So if you enjoyed this course, you may
want to take that for credit, and you end
up with a LLM degree.
[MUSIC] in the end I want to say thank
you very much for joining us for this
course, and I hope that our paths will
cross in the field of international
criminal law.
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