Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials

By Scharf, Michael P. | Case Western Reserve Journal of International Law, Spring 2007 | Go to article overview

Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials


Scharf, Michael P., Case Western Reserve Journal of International Law


I. INTRODUCTION

The Saddam Hussein Trial will no doubt be remembered as one of the messiest trials in legal history. During the eight-month long "Dujail" trial (October 2005-August 2006), Saddam Hussein, his seven codefendants, and their dozen lawyers regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross-examination into political diatribes, and staged frequent walk-outs and boycotts) The first Presiding Judge, Rizgar Amin, was pressured to resign due to the perception that he had lost the battle of the wills against Saddam Hussein, and the replacement judge, Ra'ouf Abdul Rahman, often shouted angrily at the defendants and repeatedly tossed them and their lawyers out of the courtroom. The trial was the first ever to be televised gavel-to-gavel in any Middle Eastern country, enabling the world to witness the daily scenes of chaos in the courtroom.

I was one of the members of the team of experts assembled by the Regime Crimes Liaison Office and the International Bar Association to train the Iraqi High Tribunal judges. During the training sessions in the fall of 2004 and spring of 2005, we spent a great deal of time discussing a number of ways to respond to the defendants' and defense counsel's likely disruptive antics. Needless to say, things did not go as we had hoped.

A month after the conclusion of the Dujail trial, in September 2006, I was invited by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to speak to his staff in The Hague about the lessons from the Dujail Trial concerning maintaining order in the courtroom during a war crimes trial. Drawn from my Hague lecture, this article examines some of history's previous messy trials and the strategies judges have employed with varying degrees of success to respond to disruptive conduct by trial participants. It then describes the various tactics employed by the judges in the Dujail trial and analyzes why they were not more successful. The article concludes with a detailed prescription for maintaining order in future war crimes trials.

II. THE NEED FOR ORDERLY JUSTICE IN WAR CRIMES TRIALS

Disruptive conduct may be defined as any intentional conduct by the defendant or defense counsel in the courtroom "that substantially interferes with the dignity, order and decorum of judicial proceedings."2 There are six main types of disorder:

(1) passive disrespect, for example, the refusal to address the judge as "Your Honor" or refusal to stand when the judge enters the courtroom;

(2) refusal to cooperate with the essential ground rules of the judicial proceedings (e.g., constantly insisting on making political speeches instead of asking questions during cross-examination);

(3) a single obscenity or shout;

(4) repeated trial interruptions, ranging from insulting remarks to loud shouting or cursing;

(5) in a televised trial, attempting to incite acts of mass violence; and

(6) resorting to physical violence in the courtroom. (3)

Former leaders and their counsel in war crimes trials are especially likely to engage in such forms of disruption. Because of the political context and widespread publicity, leaders on trial are more likely than ordinary defendants to have concluded that they do not stand a chance of obtaining an acquittal by playing by the judicial rules. Instead, they seek to derail the proceedings, hoping for a negotiated solution (e.g., amnesty) outside the courtroom; to hijack the televised proceedings, hoping to transform themselves through political speeches into martyrs in the eyes of their followers; and to discredit the tribunal by provoking the judges into inappropriately harsh responses which will make the process appear unfair.

As Robert Jackson, the Chief Prosecutor at the Nuremberg trial, observed sixty years ago, war crimes trials, whether before international tribunals or domestic courts, seek to establish a credible historic record of abuses and elevate the rule of law over the force of might, thereby facilitating the restoration of peace and the transition to democracy. …

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