[SOUND]. 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. [MUSIC][SOUND][MUSIC]
