Case lawyers build legal case to stop
Saddam Hussein’s self representation
in upcoming trial
Michael Scharf, director of Case’s Frederick K. Cox International Law Center, and Christopher Rassi, assistant director of Case’s War Crimes Research Office and adjunct law professor, address the question in an article—“Do Former Rogue Leaders Have an International Right to Act as Their Own Layer in War Crimes Trials?”— which will be published in the fall issue of the Ohio State Journal of Dispute Resolution. Even before the article’s printing, however, it is influencing the outcome of the Saddam Hussein and Slobodan Milosevic trials.
The article has become the basis for a research memo, addressed to Salem Chalabi, the head of the Iraqi Special Tribunal, and sent to him through the United States Institute of Peace, which is assisting Chalabi in the prosecution of Saddam Hussein before the Iraqi Special Tribunal.
“The memo sent to Iraqi is a reformatted version of the upcoming Ohio State article,” said Scharf. “It’s not in print yet, but the article is already having a tremendous impact on several ongoing international trials.”
“The issue arose because the Yugoslavia Tribunal incorrectly believed that international law required that they permit former Yugoslav President Slobodan Milosevic to represent himself, with disastrous results,” Scharf said. By analyzing the negotiating record of the relevant international treaties, international precedent and the interpretation of the laws governing self representation in a number of countries, Scharf and Rassi show that war crimes tribunals have legal grounds—even with “an unwilling defendant”—to require or to assign counsel to a former leader on trial.
The Case professors urged the assignment of representation for Hussein and future rogue leaders at the onset of the trials and before the trial unravels due to the antics of the defendant.
In contrast, the Case law professors stated, “If Saddam Hussein were permitted to take advantage of the tactics of Milosevic and portray his trial as ‘victor’s justice’ at the hands of a puppet court, this would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shiites and Sunis.”
It could fuel opposition to the United States and the new Iraqi government by transforming Saddam Hussein and his cronies into martyrs, they added.
To be ready to respond as soon as Saddam Hussein asserts his right to represent himself, the United States Institute of Peace immediately passed the memo on to Chalabi, so that the prosecutor of the Iraqi Special Tribunal could use it to prepare a motion to compel Saddam Hussein to act through counsel rather than represent himself as Slobodan Milosevic, has done, explained Scharf.
Through colleagues at the Yugoslavia Tribunal, Scharf also had copies of the memo forwarded to the trial judge presiding over the Milosevic trial, which is considering whether to require Milosevic to be represented by counsel as that case enters its second stage in mid August.
Scharf also shared copies of the memo with the prosecutor of the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda where the issue of self representation is currently before those tribunals
The War Crimes Research Office at Case works closely with a number of international war crimes tribunals. In the past two years, Case law students have prepared over 50 research memos on issues pending before the tribunals at the request of the international prosecutors. These memos are available at the Cox Center War Crimes Research Portal: www.law.case.edu/War-Crimes-Research-Portal.
In addition, Case faculty members, such as Scharf and Hiram Chodosh, associate dean of the law school and the Joseph C. Hostetler—Baker & Hostetler Professor of Law at Case, have been working with the Iraqi legal and academic communities to prepare the Iraqi judges, attorneys and professors for democracy.