Court TV Host: Discuss the hanging of former Iraqi dictator Saddam Hussein with international law professor Michael Scharf, a member of the legal team that provided training to the Iraqi Special Tribunal and the co-author of "Saddam on Trial." He was just on Courtside, and he's here with us now...

Court TV Host: Welcome, Professor Scharf, thanks for being our guest again today.

Question from tara: Welcome back Michael, and Happy New Year. Were there any Americans among the witnesses to the hanging?

Michael Scharf: It's good to be back with you. The answer to the first question is: not that I know of. There seems to have been a decision made by the Bush administration to distance itself from this part of the process.

Question from tribe: What can you tell us about the reports that the U.S. ambassador to Iraq tried to get the hanging delayed?

Michael Scharf: Unfortunately, my insider sources are more on the judicial end than on the political end, and therefore I have no information about such diplomatic maneuverings.

Question from Missed_Q_2007: Mr. Scharf, in your opinion did Saddam actually have a fair and unbiased trial, and do you think the U.S. played any role in the trial other than to guard Saddam?

Michael Scharf: Saddam's trial will likely go down in history as one of the messiest of all times. The challenges of prosecuting a former leader who is bound and determined to hijack the proceedings would have been enormous at any time and place. But they were amplified because of the dangerous security situation on the ground and the chaotic political situation among the new Iraqi leaders. Add to that, the ingredient that this trial was televised, gavel to gavel -- and the outcome to the outside world was a trial that looked like a circus. But before anybody jumps to final conclusions about the fairness of the trial, they need to spend a few hours reading the English translation of the 298 page, single spaced, judgment of the trial chamber. Which is available at http://law.case.edu/saddamtrial/dujail/opinion.asp  The first 54 pages of the lengthy opinion addresses every legal challenge that the defendants and their lawyers raised during the trial and provide a unique inside view of the thinking of the tribunal. The next 250 pages contain detailed findings of fact and surprisingly sophisticated legal analysis. Most of the experts who have taken the time to analyze the written opinion have concluded that the tribunal did a credible job in that there were no glaring legal errors. Interestingly, the tribunal, which was criticized for not explicitly embracing the "beyond a reasonable doubt" standard in its statute, ended up using that phrase two dozen times in its opinion. There are also numerous citations to numerous international precedents. One might suspect that the opinion had been ghostwritten by the American and international advisors to the tribunal, but the prose is uniquely Iraqi and clearly was written by the IHT judges themselves. Nuremberg had also been criticized severely for fair trial problems. But the Nuremberg judgment has withstood the test of time and serves as a definitive account of the war crimes of Nazi Germany. Not withstanding the well-deserved criticisms of the Iraqi High Tribunal process, I believe that the tribunal's Dujail opinion will ultimately be accepted as a definitive account of the crimes against humanity committed by Saddam Hussein and his regime.

Question from jolee: Why was he handed over on that particular day?

Michael Scharf: I agree that the timing of the execution was very bad, given that it occurred on the morning of the Islamic holiday of the sacrifice. And the video of the execution made things even worse, because it showed the executioners taunting Saddam Hussein moments before his death. My perception is that the Iraqi government wanted to carry out the execution as soon as possible, because every day Saddam was still around was seen as an obstacle to the quest for peace. Ironically, the Yugoslavia tribunal also demonstrated extraordinarily bad timing in that Slobodan Milosevic was surrendered by the Serb Prime Minister to The Hague in violation of a Serbian Supreme Court Order, on St. Vitas' Day, which is the day of Serb martyrdom. One can look for conspiracies in the timing of these events, but my guess is that the truth more reflects misfeasance than malfeasance.

Question from magnolia: Welcome back, Prof. Scharf. Was the relatively quick execution of Saddam Hussein a holdover from the laws in effect in Iraq from before the overthrow of Saddam Hussein or was the timeline set by the Iraqi tribunal by a new law set into place after the overthrow?

Michael Scharf: The Iraqi High Tribunal statute, which was approved by the democratically-elected Iraqi National Assembly on Aug. 11, 2005, required that all sentences be implemented within 30 days of the judgment of the appeals chamber. The trial chamber issued its verdict on November 5th; the trial chamber's written opinion was provided to the defense counsel and made public on Nov. 22. The defense counsel filed their briefs on Dec. 3, and three weeks later, the appeals chamber affirmed the verdict and issued a 17-page opinion which will be up on our website in a day or two. There were those of us who had advocated a legislative amendment to the statute to enable Saddam Hussein to remain alive and participate in the Anfal campaign trial and subsequent trials. Early on, it looked like that might be possible, but the political winds in Iraq changed in response to spikes in violence that occurred every time that Saddam spoke in the courtroom. Ultimately, the Iraqi people seemed to reach a consensus that their country would be better off if the execution took place within the required 30 days.

Court TV Host: Interestingly, you made that very point - about finding a way staying the execution - a little over a year ago right here...You said: "Since the statute does not allow for trials in absentia, this means that Saddam Hussein needs to be alive in order to be prosecuted for the Anfal campaign...[and other charges] Therefore I believe the tribunal will interpret its statute and rules in such a way as to allow them to stay any judgment of execution so that Saddam Hussein can stand trial for these other charges."

Court TV Host: You also said: "The judges of the tribunal know that one of the important functions of their court is to create a historic record of the worst atrocities committed by the Ba'ath regime." How are they going to do that?

Michael Scharf: If Saddam were the only defendant, his death would end the ability of the tribunal to continue the Anfal campaign prosecution, much like the Yugoslavia tribunal had to dismiss the case against Slobodan Milosevic after the death of the former Serb leader. But Saddam has six codefendants, including Chemical Ali, and so the Anfal campaign trial will continue to its conclusion with them. Although Saddam cannot be convicted in absentia for the Anfal charges, the trial judgment will no doubt describe in detail the role that he played in the actions against the Northern Kurds. My greatest worry is that the international media will completely lose interest in covering these trials, now that the "Saddam show" is over. Without international media coverage, the trials will lose their important educative function, which is a key ingredient to deterrence of future war crimes around the world.

Question from Lori: Hi, Michael_Scharf. Have the other two men been put to death yet?

Michael Scharf: No, that will occur in the next few days, and I'm keeping my fingers crossed that the event will be more solemn and dignified than what happened during the Saddam execution. Interestingly, the Iraqi government released videotape of the execution of ordinary murderers tried before an ordinary court as a test run for the execution of the leaders convicted by the Iraqi High Tribunal. That previous videotape showed a smooth running and solemn execution. And the Iraqi government must have believed that things would also go smoothly when they executed Saddam. It is noteworthy that the prosecutor and judge, who were present during the execution, are heard clearly on the videotape chastising the guards for taunting Saddam. Also, it is interesting that the video that the government released originally did not contain the scenes of taunting. I understand that there is an investigation underway into how the rest of the video had been leaked to the press.

Question from greenacres: Does executing Saddam and the others make it harder to try the others - could they claim that they didn't have proper defenses because the others couldn't testify?

Michael Scharf: Because the Iraqi High Tribunal statute prohibits compelling an individual from incriminating himself, it is unlikely that the executed defendants would have taken the blame or testified in such a way that would exonerate the other defendants. However, on the March 1 session of the Dujail trial Saddam Hussein did admit responsibility for giving orders. But under international law, following an unlawful order is not a defense. So even such testimony by Saddam in the subsequent trials would not prove useful to the defendants.

Court TV Host: But couldn't one of the remaining defendants try to say: "I didn't do any of what you're alleging - the ones who you executed already did it all?"

Michael Scharf:Yes, that's possible. But one of the surprising characteristics of these trials has been the strength of the documentary evidence introduced by the prosecution. Like the Nuremberg trials 60 years ago, Saddam Hussein and the other defendants ended up being convicted on the strength of their own documents, bearing their signatures, authenticated by experts during the trial. So far, the Anfal campaign trial has similarly seen the introduction of extremely compelling documentary evidence as well as videotapes. Therefore, with the heavy reliance on a documentary case, there is less likelihood that guilt will come down to conflicting testimony.

Court TV Host: Any closing thoughts?

Michael Scharf: As your readers might recall, I was initially reluctant to assist in the trial of Saddam Hussein because of my opposition to the 2003 invasion, my abhorrence of the death penalty, and my advocacy for international tribunals as opposed to domestic forums for prosecuting leaders accused of atrocities. Ultimately, I decided to help train the judges, help revise the rules of procedure, and provide legal research memos to the judges during the trial because I wanted to help make the process as fair as possible. During the trial, there were many times when I pulled my hair out over the decisions of the judges. Other trial developments, like the killing of three defense counsel, and the taunting of Saddam Hussein during his execution, hit me like a punch in the stomach. But overall, I'd have to say that the judges did a credible job faced with challenges that no other court has ever faced in history. Saddam ended up getting his day in court, in fact on 36 different occasions, he took the stand to make speeches into the television cameras broadcasting the proceedings gavel to gavel. It wasn't a perfect trial. And it certainly wasn't a model trial. But I think historians looking back in 10 years are likely to conclude that there was no miscarriage of justice. I'll look forward to discussing other developments related to the subsequent trials of the Iraqi High Tribunal with you in the future.

Court TV Host: Thank you very much...please come back to update us about those developments.