Hussein tests trial judge's control

Like Slobodan Milosevic, Iraq's ex-president is trying to undermine the court.

The often disorderly trial of Saddam Hussein continued Wednesday - without the former president present - sharpening questions about who's in charge after five days of proceedings.

Some observers wonder whether the judicial process is being usurped in a power struggle between Iraq's deposed leader and the court. "His strategy is to derail the trial, and if he can't do that, disrupt the trial, and if he can't do that, discredit the trial," says Michael Scharf, director of the International Law Center at Case Western University in Cleveland.

Mr. Hussein made good on a threat Tuesday not to return to the "unjust" court Wednesday. The trial was adjourned until Dec. 21.

Mr. Scharf, who helped train the Iraqi judges, says the biggest problem has been to allow Hussein to effectively act as his own lawyer. Former Yugoslav president Slobodan Milosevic, acting as his own council, turned his trial at The Hague into a virtual circus, using cross-examinations for political propaganda and to attack the legitimacy of the court.

Early on, Scharf and others agreed the Hussein trial would follow that same path if the defendants acted as counsel. Their decision led to a law that banned self- representation.

But Hussein and the other seven defendants have been allowed by Judge Rizgar Mohammed Amin to cross-examine witnesses with predictable consequences.

"It's turning the story into a power struggle between Saddam and judges rather than about the compelling testimony of witnesses," he says. "The longer [Judge Amin] waits to make this correction, the greater the risk that indelible damage will be done to the court."

So far the court has heard dramatic testimony this week from witnesses from Dujail, where an attempt was made on Hussein's life in 1982. Witnesses told of torture, retribution, and ruined lives as a result of the events in the Shiite village.

On Tuesday, Hussein's half-brother Barzan Ibrahim al-Tikriti cross-examined "Witness C," who testified that he was 12 when he was arrested in 1982. He said he was taken to Baath Party headquarters and tortured.

The witness said that he saw Mr. Tikriti, who was then Hussein's intelligence chief, at the Baath Party building in Dujail that day, and said he appeared to be in charge.

Tikriti, in an effort to discredit the witness, admitted he was there that day, but said that he was actually helping people. "Don't you remember? I was there. I kissed 60 men ... then set them free." At that time, Tikriti was in almost daily contact with Hussein.

But as the trial adjourned while Iraqis prepare for the Dec. 15 nationwide parliamentary vote, it remains unclear that any direct link has been established between the events of Dujail and Hussein.

"No one is saying Saddam Hussein personally tortured people, and you don't have to prove that," says Steven Ratner, an international law expert at the University of Michigan.

"In cases like this you also have in play what is called 'command responsibility,' " says Mr. Ratner. "The idea is that if you command a militarily hierarchical order where you have atrocities that you did nothing to stop, [then] you can be found responsible."

Scharf agrees and says that Tuesday's "testimony was extraordinary in terms of guilt or innocence." Tikriti "confirmed that he was there and taking an active role and that he had control. That proves command responsibility ... so with respect to his guilt, the trial is over right there in my mind."

No one doubts Hussein was in command of Iraq - he claims he is still the country's leader - but in the meantime he is seen by some Iraqis on the street as "playing" the court to his advantage, at least in the near term.

Wednesday, the trial was delayed for several hours by deliberations between defense attorneys and the court over Hussein's refusal to return to the court.

In a heated blast at the close of proceedings Tuesday, Hussein had cursed the judge as an "agent of America." Calling the conditions he lives under during the trial "terrorism" - no clean shirt or underwear - he vowed not to return.

The deposed leader has also made shrewd comments in the court that could play on the fears of some Iraqis.

For example, earlier in the week Hussein accused Iran of ordering an attempt on his life in the 1980s. The assassination attempt did coincide with the early stages of the Iran-Iraq war. But the comment could resonate with some Iraqis, especially Sunni Muslims like Hussein, who worry today about Shiite Iran's growing influence in the country.

While some Iraqis express impatience with the pace of the trial, others say they find it to be a good lesson for the "new Iraq," and that Iraqis benefit from seeing the former strongman reduced to whining about infrequent bathing and dirty clothing.

Beyond the public role the trial plays is the question of whether the burden of proof can be met to convict Hussein. Testimony so far has emphasized the role of the police and intelligence agents but has produced no "smoking gun" in the hands of Hussein.

"As long as Saddam is in a cage, this is really the top for us," says Jaidar Jabar, an industrial painter from Baghdad's Al-Idrisi neighborhood. And while some people have worried that the trial was adding to high emotions ahead of the national elections, Mr. Jabar says he thinks the impact will actually be positive.

"It's really a reminder of why we have to go to the elections," he says. "When we are reminded by this trial of what was and how we lived under Saddam, we have a new goal for building something more free, like democracy."

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