Media matters: reflections of a former war crimes prosecutor covering the Iraqi tribunal.

AuthorMonasebian, Simone

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.

Jeremy Bentham (1748-1832)

The Revolution Will Not Be Televised.

Gil Scott Heron, Flying Dutchmen Records (1974)

  1. THE ROAD TO SADDAM

    After some four years prosecuting genocidaires in East Africa, and almost a year of working on fair trial rights for those accused of war crimes in West Africa, I was getting homesick. Longing for New York, but not yet over my love jones with the world of international criminal courts and tribunals, I drafted a reality television series proposal on the life and work of war crimes prosecutors and defence attorneys. I called it "The Real World Meets Nuremberg," (1) and from my prefabricated container office at the Special Court for Sierra Leone (SCSL), emailed Tim Sullivan, Court TV's (2) senior vice president, for a meeting in New York. How could this topic not be fascinating to the American public?

    A decade earlier, I spent countless hours glued to Court TV's coverage of the Tadic (3) trial in The Hague--learning more about the world and what I wanted to do in it than I had in law school. Until Tadic, I was a criminal defense lawyer in a New York law firm and never considered becoming a prosecutor. It was Court TV's Tadic coverage that set me on a path to prosecuting genocidiares at the United Nation's International Criminal Tribunal for Rwanda (ICTR). I am a firm believer in cameras in the courtroom and the power of the media to educate.

    Tim Sullivan and I shared a preoccupation with the infamous "Central Park Jogger" trial. In 1992, Tim, one of Court TV's original anchors, wrote the authoritative account of that case in Unequal Verdicts: The Central Park Jogger Trials. It was the same year I wrote my law school thesis on the media coverage of the Central Park jogger and Scottsboro cases. In our writings, we both questioned the coverage of the jogger case and opined on the impact of that coverage. Ten years later, the widely accepted Central Park verdicts were overturned after police discovered the actual perpetrator.

    While Court TV's producers seemed amused by the reality TV proposal, they had other ideas: "How about covering the Saddam trial, instead?" Three months earlier, in a training arranged by the Regime Crimes Liaison Office, the Iraqi tribunal judges were advised not to televise the proceedings. (4) Case Western Reserve University Law Professor Michael Scharf, cautioned the judges about the many risks associated with televising a major criminal trial, citing the Slobodan Milosevic and O.J. Simpson cases as examples of reasons for not televising) The judges nevertheless favored televising their proceedings. (6) Rule 50 of the tribunal's Revised Rules of Evidence and Procedure afforded the trial judges discretion to permit cameras in the courtrooms. Just prior to the opening of the trial, Professor Scharf cited the Media Trial (7) (for which I had been a prosecutor at the ICTR) as further reason not to televise, noting: "[i]n the Media Trial before the Rwanda Tribunal, the presiding judge had to go to extraordinary lengths to suppress the dramatic antics of defense counsel who was playing to the broadcast media." (8)

    The Iraqi judges wanted to reach out to the international and national communities. They understood that television provided such a forum. (9) They apparently believed Lord Hewart's maxim that: "it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (10) Saddam's trials were indeed televised.

    But there was merit in Michael Scharf's caution. The media influences the behavior of any subject in front of its lens. (11) This reality is all the more amplified in highly-politicized war crimes trials. And while Michael Scharf's concern may have been defence lawyers and accuseds playing to the camera, I was more concerned about the media's effect on judges, who in war crimes tribunals sit as both judge and jury. Tribunal judges were observed to sit up straighter when the international press was under foot. I recall one war crimes tribunal judge admitting on the trial record to reading daily media accounts of the case he was judging. One could see indications of judges influenced by trial media accounts in the way they controlled their courtroom. Where the coverage was accurate, this sometimes assisted in the fairness and efficiency of the trials. But where the accounts were distorted, the judges' responses could reflect the distortion.

    Coverage also affected decisions made in war crimes tribunal prosecution offices. With both the ICTR chief prosecutor and her deputy, for several years based in the Netherlands and Rwanda, rather than the court's seat in Arusha, Tanzania, particular attention was paid by them to media accounts of court happenings in Arusha. One article's passing reference to my unwieldy hair during the Media Trial, had me running to the barber, other criticisms led to immediate (albeit, long overdue) changes in trial team composition, and favorable write-ups afforded me increased leverage to shape prosecution strategy. The media spoke and things happened.

    The Media Trial judges held: "the power of the media to create and destroy fundamental human values comes with great responsibility." (12) Prosecuting media executives for irresponsible and incendiary articles and broadcasts that decimated Rwanda, I witnessed the power of a salacious media to misinform, confuse, and incite society. I also found some of the journalists covering the Media Trial unable to get the story right, confounded by a blizzard of exhibits in a foreign language, and conflicting complex testimony. They did not ask the right questions, speak with both sides of the case, or talk to those involved in the case from the beginning.

    The day I gave my closing argument in the Media Trial, I learned a journalist was writing a book about our case and that a teammate who had joined the case in the eighth month had been speaking to her about goings on, in and out of the courtroom, for many months. I felt other members of the team should have been informed. At the time, I thought the author was too far along in her writing to consider anything the rest of us might have to say. After I left the ICTR, the author and I had several discussions about her first draft. Despite her looming deadline, the conscientious author, made a number of suggested changes and added other pieces of the story to her book. (13) That experience particularly sensitized me to the importance of seeking as many perspectives as possible, even from the same side, and the responsibility one has to both knowing and unknowing subjects.

    I wanted to cover Saddam's trial right, and for me that meant being there. I covered my first, and until Saddam, only courtroom trial as a journalist twenty-two years earlier--Grandmaster Flash v. Sugar Hill Records, a federal controversy over whether the artist or the record company owned the moniker Grandmaster Flash. And while that case involved the livelihood of one of hip-hop's first recording artists, as opposed to liberty or death of a twentieth-century tyrant, being there made all the difference. Trial lawyers and journalists are, after all, storytellers, and nothing beats being on the ground where the story is unfolding.

    When Court TV covered Tadic, the first international war crimes trial since Nuremberg, they had the exemplary Raymond Brown reporting from The Hague, in addition to stellar legal journalists such as Fred Graham and Rikki Kleimann from their New York studio. With Saddam, all coverage would emanate from New York, with only a feed from Baghdad. As Tim Sullivan explained, Court TV was no longer in its infancy when viewers might stay tuned to a slow-paced trial for the novelty of it. (14) A decade after Tadic, audiences were accustomed to live televised trial proceedings and with hundreds of channels from which to choose, became increasingly fickle about which trials they might sit through. The ratings made clear that viewers would only tune-in in great numbers to fast-paced, sexy trials. Court TV learned from the Tadic trial that trials abroad of non-nationals were not viewer-friendly. Accordingly, less investment in resources and television hours would go into covering Saddam. I asked Tim, "Why then cover Saddam's trial at all?" He explained, "We have to cover all historical trials whether viewers are finding them interesting or not. We knew going into it that viewers wouldn't be interested, and ratings would be poor, so we covered it as much as we could, but not all day, everyday--we are not suicidal."

    Harold Burson was a young U.S. Army soldier in 1945 when he was tasked with covering the Nuremberg trials for the U.S. Armed Services Radio Network. A few days into the trial he snagged the first interview with Chief U.S. Prosecutor Justice Robert H. Jackson. Burson--who after his military service would become the founding chairman of Burson-Marsteller, the world's leading public relations and public affairs firm--covered the trials from the very first day. He told me that the Palace of Justice was packed to capacity with hundreds of reporters the first week, and dwindled down to a fraction of that as the trial progressed until verdict when interest peaked again. (15) While Burson agreed that television audiences are not ordinarily interested in viewing long stretches of war crimes trials, he thought that Saddam Hussein's trial might be more interesting to American viewers than usual because of the war.

    The U.N. International Criminal Tribunal for the former Yugoslavia (ICTY) was deluged with media coverage requests at the onset of the Tadic trial. Registry staff were overwhelmed with press requests and accommodating seating for the overflow. Within a week, however, the...

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