The Saddam Hussein Trial Michael Scharf, director of the International Law Center at Case Western Reserve University School of Law argues that contrary to conventional wisdom, the trial of Saddam Hussein is actually going well. His op-ed ran in The Boston Globe.

The Saddam Hussein Trial

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This is TALK OF THE NATION. I'm Andrea Seabrook in Washington.

Tomorrow on TALK OF THE NATION, the relationship between power and money is getting a closer look on Capitol Hill. We'll explore the debate over ethics in the 109th Congress and whether a fix is in order. That's tomorrow.

Right now, another installment of the TALK OF THE NATION Opinion Page. Every week, we feature an op-ed from the Sunday papers and talk with the author. Today our guest is Michael Scharf, director of the International Law Center at Case Western Reserve University School of Law. His op-ed ran in yesterday's Boston Globe. It's titled: Order in the Court, Iraqi Style. He argues that contrary to what may be becoming conventional wisdom, the trial of Saddam Hussein is actually going well.

If you've been following the trial and have questions about how the Iraqi court system works or you think it may not be working, give us a call. Our number is 1 (800) 989-8255. That's (800) 989-TALK. Mr. Scharf joins us now from radio station WCLV in Cleveland, Ohio. Thanks very much.

Mr. MICHAEL SCHARF (International Law Center, Case Western Reserve University School of Law): Hi, Andrea. It's good to be on.

SEABROOK: It's good to talk to you. I was most interested in this idea that while many of us here in the US watching this trial have seen what looks like a boisterous, almost crazy proceeding, that that may just be a lens we're seeing it through, this sort of--the idea of American justice, and that we may just be looking at something that works but in a totally different style.

Mr. SCHARF: I think that's exactly what's going on. Let me start by telling the listeners that I'm not just somebody who is an apologist for the tribunal; although I was asked to train its judges. But rather, you know, just to be up front, I'm not a fan of the Bush administration. I'm not a fan of the death penalty, and I was against the 2003 invasion. So what I'm telling you about the tribunal are what I believe are honest evaluations. And the bottom line is this. Most of the media and the commentary that we're seeing in the United States is describing what's going on over in Baghdad as a judicial train wreck, with a judge that's losing control of his courtroom and losing the battle of the wills against Saddam Hussein, and the reality is far from that, and we can go into that as the segment progresses.

SEABROOK: Well, in some ways, you know, you can't blame someone who's watching the news for thinking that. There have been, you know, lawyers screaming in the courtroom, Saddam Hussein making all kinds of allegations and jumping up and, you know, saying all kinds of stuff and then not showing up some day. I mean, is this all par for the course in an Iraqi judicial court?

Mr. SCHARF: Well, both in an Iraqi judicial court and in a high-powered politicized trial. Let's begin with what is par for the course in Iraq. It is true that they are used to a more boisterous litigation style than we have in the United States. Their judges and lawyers, defense counsel and prosecutors tend to yell at each other quite often in the courtroom, and that's not seen as disrespectful or disruptive. Also, under what is known as the civil law inquisitorial system that they have, the defendants have a right to follow up the defense counsel's cross-examination with their own questions. So Saddam does have a right to frequently raise issues and ask questions of the witnesses, and it's not that the judges are losing control of the courtroom, but that they are conducting the trial in the manner that they're used to over a 30-year period of trying cases in Iraq.

Now the second thing that's going on is that Saddam Hussein's trial strategy is not necessarily to get an acquittal, but to disrupt the trial, to derail the trial in any way possible. And he's being advised by an American former attorney general, Ramsey Clark, who really perfected this art when he was an adviser 40 years ago to the Chicago 7 trial, which featured such luminaries as Abbie Hoffman and Bobby Seale, who were at the time leading the anti-war movement, and when they were tried for trying to have a conspiracy to disrupt the Chicago Democratic convention in 1968, they used every gimmick in the book to try to get the judge angry at them. Ultimately, their judge had to bound them and gag them in order to have the proceedings go on. And that's what these defendants are trying to do in the courtroom. But this judge has learned his lessons, too, and he has been very calm and sympathetic, and he's bending over backwards to be seen as fair.

SEABROOK: You know, the presiding judge, Rizgar Mohammed Amin, has been criticized quite strongly here in the US for allowing this to go on in his courtroom, and I've wondered myself why they wouldn't just put Saddam Hussein in a Plexiglas box, as they have done in other international tribunals, and make him stay in the courtroom, rather than let him not come in one day.

Mr. SCHARF: Well, yeah.

SEABROOK: You say that it's actually a very savvy decision.

Mr. SCHARF: Yeah. What he did, instead of hauling Saddam Hussein back into the courtroom and putting him in a glass booth like Adolf Eichmann was in his famous trial in Jerusalem three decades ago, he told Saddam Hussein, `If you don't want to be in court, we'll make you watch the trial from your detention center through a two-way video.' And this has been also done before the Yugoslavia tribunal, the Rwanda tribunal and the Sierra Leone tribunal, so it's perfectly consistent with international law. Saddam Hussein realized that he couldn't score any points from inside his detention center, so not surprisingly, he came right back. And the other thing that the judge has been doing is there is a microphone, and Saddam Hussein's microphone is turned off, except for the very period of time when he is allowed to speak. And so that has, itself, subdued him during most of the testimony and prevented many of his outbursts.

SEABROOK: And how could we not mention the environment this whole trial is going on in. I mean, two of the defense lawyers have been assassinated at the beginning of this trial. Outside, it's not exactly a secure situation in Baghdad. I mean, how--are you sure that these are, you know--these judicial proceedings can go on in a...

Mr. SCHARF: Yeah.

SEABROOK: ...fair and justice--way of justice here?

Mr. SCHARF: Well, you know, the situation in Baghdad is not safe, but the reason the two defense lawyers were killed was not because it is inherently dangerous to be representing Saddam Hussein, but rather because they refused to take the security that was offered them by the US government and the Iraqi government. Now it is, I think, the US government's fault that it did not try to negotiated a compromise before the trial began. But after the two deaths, Judge Amin worked out a compromise where the defense attorneys now have their own private security guards, much like rock stars would have an entourage, that have been authorized to carry machine guns to protect their clients, and now their--families of the defense attorneys have been moved out of the country for their protection. The trial has gotten back on track, and there have been no more killings and I think it's unlikely that there will be more assassinations of defense counsel or the prosecutors, the witnesses or the judges, because the security situation's now much better than it was three weeks ago.

SEABROOK: So explain to me, Michael Scharf, what is it that you say is making this trial go well, not just what isn't--you know, what isn't bad, but what's going well?

Mr. SCHARF: Well, we've had five days of trial, and in those five days, there's been an opening statement by the prosecution, and 14 witnesses have completely testified and been cross-examined. That's actually a very efficient pace for international trials and also even for American trials.

SEABROOK: Sounds faster actually.

Mr. SCHARF: Now it's going pretty well.

SEABROOK: It sounds a little faster than most American trials.

Mr. SCHARF: It's not going too fast, though, and what has been developed in this testimony is, first of all, they had somebody who as an insider, who had been given the orders to round up the people, bring them to detention and have them killed and to destroy the town of Dujail, which is what this case is about, and he testified about the chain of command and Saddam Hussein and the other defendants' role in it. Then they started bringing in eyewitnesses who some of them were young teen-agers or in their early 20s at the time, and they testified about what happened to this town.

It was completely devastated in response to an assassination attempt against Saddam Hussein, and it wasn't that Saddam Hussein was trying to root out terrorists, as the defense are claiming, but rather the evidence is mounting that he was retaliating. It was an act of retribution and trying to send a signal to towns all over Iraq that you can't get away with trying to attack the fearless leader. And some of the evidence that has come in, for example, are that people as young as eight years old were rounded up and killed. Now that's clearly a war crime. It's unlikely that an eight-year-old would have been a real threat to Saddam Hussein. So this evidence is coming in in some of the most harrowing testimony that anyone's ever heard. Unfortunately, what Saddam does every time the testimony gets too upsetting, is he has another outburst. He yells at the judge, `Go to hell.' He says, `I'm going to boycott the trial,' and then his latest tactic was to say, `I was tortured. It's not just them.'

And what he's trying to do is distract world opinion and the opinion of the people listening to the trial in Iraq from what the testimony is all about. And it's, I think, working here in the West, but not so well in Iraq. I've been talking to people on the streets in Baghdad, and they say that the Iraqi people are glued to their television sets, and they're listening very carefully to the testimony, and they're finding it much more compelling than Saddam Hussein's petulant outbursts.

SEABROOK: We're talking with Michael Scharf about his op-ed in The Boston Globe yesterday about the Saddam Hussein trial in Iraq. You can call in at 1 (800) 989-8255. That's (800) 989-TALK.

Let's go to Carey in Valdosta, Georgia.

CAREY (Caller): Hi. I've got a little short question for you.

SEABROOK: Sure thing. Go ahead.

CAREY: I was wondering how do you find an impartial jury or judges and so on and so forth like that? And also, some of my friends were wondering, we've been out of touch lately, with the holidays, with a lot of our news, and what evidence has there been that actually directly links him to the murders and the killings and is it not just him just saying, `I didn't tell them to do that'?

SEABROOK: Thanks, Carey. Michael Scharf

Mr. SCHARF: All right. Let me answer both of those questions. They're very good ones. As far as the impartial judges are concerned, the Iraqi Bar Association, together with the democratically elected new government of Iraq, went through a thousand names of judges, and they disqualified anybody who had been a member of Saddam Hussein's Baath Party. They disqualified anybody who had served on Saddam Hussein's special courts called the revolutionary courts, because those were used as a weapon against political opponents. They then had about 600 names that they went through. They had disqualified about 200 who had family histories of someone who had been attacked or victimized by Saddam Hussein. They then had 400 names and they picked the best of the best, and of the 50 judges that they offered the job to, all 50 accepted.

The judge who is presiding over the trial right now is Judge Rizgar Amin, who is a Kurd, and the trial is about Sunni perpetrators, who have committed crimes against Shiites. So he is seen as being able to fairly judge these cases, and during the training sessions in London, he told me that he was going to bend over backwards to make sure that Saddam Hussein was fairly treated and not to have any convictions unless the evidence is overwhelming.

Now with respect to the links to Saddam Hussein, so far, only 15 of the witnesses of a list of 40 have testified. But already, they've established that Saddam Hussein had very tight control over all the subordinates, and that if this town of Dujail was attacked and if there was an order to destroy it and to round up the townspeople and to execute them without a trial, it could not have occurred without Saddam's approval. And although there has not yet been any evidence that Saddam Hussein was heard giving the order--and I think it's unlikely that such evidence will be found because from psychological profiles of Saddam Hussein, we know he was somebody who didn't write down his orders, not like the Nazis in Germany, and he was more like Nixon, where he would say, `You know what I want done. Go and do it.' But the evidence of his tight control over the military hierarchy means that under the legal theory of command responsibility, he will be held responsible for these acts against the town of Dujail.

SEABROOK: We're talking with Michael Scharf about the Saddam Hussein trial. You're listening to TALK OF THE NATION from NPR News.

Michael Scharf, you were describing the process for picking the judge in this case or the judges, and, you know, they weren't members of the Baath Party. They weren't--all of these other sort of qualifications that could have allied him or these judges with Saddam Hussein, correct me if I'm wrong, but in the prewar Iraq, not being a part of the Baath Party, not being part of these other places aligned with Saddam Hussein, doesn't that sort of stack some chips against Saddam Hussein in the trial? Doesn't it sort of bowl the justices in the other direction?

Mr. SCHARF: There are a lot of surprises when people learn more and more about the Iraqi system under Saddam Hussein. One of them is that unlike Adolf Hitler, he did not try to take control over his entire judicial system and to warp it and distort it and corrupt it. Rather, he created a separate judicial system, a parallel system called the revolutionary courts, and, in fact, one of the co-defendants, Judge al-Bandar, was the chief justice of the revolutionary court, and he's being tried for giving a judicial order to kill the hundred and fifty townspeople without a trial, but because Saddam Hussein didn't try to warp the ordinary judicial system, you had thousands of judges and 20,000 litigators who were going to work under Saddam Hussein's regime on a daily basis, trying cases involving non-political murders and rape cases and corruption cases and theft cases, and he didn't try to affect those judges, and so many judges existed that weren't part of the Baath Party and could be seen as impartial, or as impartial as possible, for selection for this case.

SEABROOK: So exactly how did the presiding judge, Rizgar Mohammed Amin, react when Saddam Hussein started acting out in the courtroom?

Mr. SCHARF: Well, we actually had training sessions where we did mock trials, and we prepared for just this eventuality, because we had heard that Saddam Hussein had followed closely the Slobodan Milosevic case at The Hague, and again, Saddam Hussein's attorney, Ramsey Clark, was also the lawyer for Slobodan Milosevic, so we knew what was likely to come. What Judge Rizgar has done and what he was trained to do is to never lose his cool, never yell back at Saddam Hussein, to give Saddam Hussein a lot of leeway, enough rope, for example, to hang himself, and, in fact, some of the defendants have said some very incriminating things in the courtroom. For example, Saddam's half-brother, who was allowed to do a cross-examination of one of the witnesses, said, `Well, you just claimed that I was there giving orders for people to be executed. I was there, and I was giving orders, but I was singling people out to be saved.' He must not have realized that he had just proven the prosecutor's case that he was there and in control. And Judge Amin knows at the end of the day, it's less important to be seen as winning the battle of the wills than to be seen as fair and sympathetic and getting enough evidence that he can talk about in his written opinion to prove guilt in a fair way.

SEABROOK: OK. Let's go back to the phones. Eric in Key West, Florida. Hi. You're on TALK OF THE NATION.

ERIC (Caller): Yes. Hi. Thank you for having me on your show. I just had one question with regards to the current framework that's in place. When we're talking about Saddam Hussein being on trial, a current legal system that's been around for over 30 years, in a Sunni-Baathist led regime, I'd like to get your opinion as to what you see would be the future, considering the fact that in the current political climate, we have a Shia populous that tends and will probably have a majority in the future government and current, well, possibilities of this becoming a Islamic republic with an Islamic type of legal framework.

SEABROOK: Michael Scharf, in the last minute that we have, could you respond?

Mr. SCHARF: Sure. This trial is not being conducted by Shariah or the Koran or Islamic law. Rather, it is using the international standards that were developed by the Yugoslavian Rwanda tribunal for both the definitions of crimes and the rights of the defendant, and all of the domestic courts in Iraq are looking at this tribunal as a model for how they will start to have justice. Part of rebuilding the country of Iraq is creating this new constitution. Hopefully, all of the different parties will be involved. But the other part of it is having a fair justice system, and that justice system is looking at what goes on in this trial in Baghdad for determining its future.

SEABROOK: So in other words, Baghdad may model its coming justice system off of this trial.

Mr. SCHARF: It absolutely will. In fact, the new justice system also has developed the rules of procedure that are required by international human rights standards for the first time in 30 years. It's not as important to have them in paper as it is to have them in practice. So the judges throughout Iraq are watching every one of Judge Amin's rulings and how he treats the defendants to determine how they should be treating people in the future.

SEABROOK: And so will we be. Michael Scharf is director of International Law Center at Case Western University law school. His op-ed in yesterday's Boston Globe is titled Order in the Court, Iraqi Style, and you can find it at

This is TALK OF THE NATION from NPR News. I'm Andrea Seabrook in Washington.

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