The Nuremberg trials it is not. But then again, Saddam Hussein is no Hitler or Goering. He was a regional tyrant whose invasion of Kuwait was turned back by the U.S., whose effort to develop nuclear weapons was thwarted by Israel, and whose war with Iran proved mutually destructive. He did succeed in murdering, torturing and terrorizing thousands of his own people, and for one small part of that-the murder of 148 men and boys in the town of Dujail-he was placed on trial, convicted of crimes against humanity and sentenced to hang…

But was it fair, or was it victors’ justice, as Goering characterized Nuremberg? In a sense, all trials that follow military conflicts are victors’ justice; the losers don’t get to hold trials. No British generals were placed on trial for Dresden, nor were any Americans put in the dock for Nagasaki. But some victors’ justice can be fairer than others. Nuremberg represents the epitome of fair victors’ justice. The defendants were brilliantly represented by lawyers of their own choosing. The prosecutors were the brightest and fairest the victorious Allies could send. (Even the Soviet chief prosecutor was a distinguished lawyer, though he was clearly taking orders from Stalin.) The judges were, for the most part, highly regarded (the Soviet judges, though highly experienced, lacked the independence of the American, British and French). The verdicts were generally regarded as fair, with some death penalties, some terms of imprisonment…and not a few acquittals. These calibrated results satisfied the appearance of justice, as well as the reality in most cases.

The Baghdad trial also produced calibrated results: three death sentences, one sentence of life imprisonment, three sentences of many years behind bars, and one acquittal for lack of evidence. The fact that the conviction and death sentence of Saddam was a foregone conclusion does not necessarily undercut the trial’s fairness. The verdict and sentence was predictable because the facts were clear and the evidence compelling. A defendant’s obvious guilt does not necessarily make his trial unfair; nor does it necessarily make it fair. Even the most guilty and despicable are entitled to a trial before objective fact-finders (in this case judges, not jurors), with an opportunity to challenge the prosecution’s evidence, to put on evidence of his own, and to have a fearless lawyer advocate on his behalf.

Saddam was afforded such a trial, though he denied it to others, and by the standards of justice in most Arab and Muslim countries, this trial was extraordinarily fair. But because the U.S. is the occupying power, and our representatives were looking over the shoulders of the Iraqi prosecutors and judges, the trial will be judged by Western standards. Even so, the Baghdad trial, though far from exemplary, must receive a passing grade, especially considering the circumstances in that city blighted by violence…

Former U.S. Attorney General Ramsey Clark, who is one of Saddam’s lawyers, was thrown out of court for characterizing the trial as a “mockery of justice.” He and Saddam’s other lawyers will have the opportunity to provide specifics to back this rather general charge when they file their brief in the automatic appeal to which the defendants are entitled. It will be interesting to see whether the issues raised by the defendants are more political or legal-whether they are macro or micro. If the defendants believe they have no chance for an appellate reversal…and want to use the appeal to score political points, they will, of course, lose. But if they approach the appeal in a lawyerlike manner-focusing on the…evidence, the elements of the crimes, the judicial rulings, and other more technical issues-they may provide the appellate chamber an opportunity to demonstrate the fairness of the process by modifying or even reversing some of the judgments.

The fairness of legal proceedings-whether domestic or international, whether in war or in peace-is always a matter of degree. Perfect justice is an illusion. Perfect injustice is a reality, as Saddam Hussein proved when he inflicted it on his perceived enemies for so many years. Now this exemplar of perfect injustice has been subjected to imperfect justice. The result is satisfying, and should serve as an object lesson to the many dictators who continue to terrorize their people and others in the expectation that they will never be brought to justice.

(Alan Dershowitz, professor of law at Harvard, is the author, most recently, of “Preemption: A Knife that Cuts Both Ways” [Norton, 2006].)

DEAD MAN, STILL WALKING

John O’sullivan

Globe and Mail, November 7, 2006

Saddam Hussein, despite his courtroom bravado, probably thought it would never come to this. If he foresaw a violent end to his life, it is likely he was thinking of an assassination in the street or a quick shooting by successful coup plotters. These are the occupational hazards of dictatorship.

What he would have dismissed as absurdly utopian is a formal death sentence after a manifestly fair trial in an Iraqi court on grounds of crimes against humanity. Even after his arrest and detention, he doubtless calculated that a deal could be made. After all, he would have thought, the Americans are plagued by an insurgency largely conducted by terrorists loyal to him. Maybe a comfortable exile could be obtained in return for his influence in bringing the insurgency to an end.

His transfer to Iraqi jurisdiction would have blown away that hope. But the worsening violence and the political need to bring Iraq’s Sunnis into government would then have fostered another desperate hope-that his supporters might gain enough authority to liberate him…before he faced the hangman.

The guilty verdict, the capital sentence, and the public rejoicing of most Iraqis have demolished that final delusion. Given the…brisk appeals process in Iraq, he is likely to be hanged within the next two months.

Saddam’s sense of personal destiny is strong enough to keep hope alive right up to the moment he mounts the scaffold. But he also has enough realism in his psychology to know that rescue is unlikely. He is now wondering how best to foster the legend of Saddam the Mighty throughout the Arab and Islamic worlds (if not in most of Iraq). Do not be surprised if he faces execution bravely and utters some dramatically admirable last words. He will doubtless have the courage of the damned.

Of course, the damned are not exactly cheerful. If we are looking for joy and celebration at Saddam’s nemesis, we will find them among the Iraqis liberated from his despotism… They have few or no qualms about legal capital punishment, which they rightly distinguish from Saddam’s unlawful mass murders.

The rest of the world is more restrained in its reactions-in particular, the Middle East, Europe and even the United States. Why?

Most of the Middle East is ruled by despots. Some are disguised as modernizing socialists, some as traditional monarchs, others as Islamic mullahs. None is as cruel and brutal as Saddam in his heyday. All of them will feel a chill when Saddam hangs. His fitting end will make the despots more determined to resist the Bush policy of “democratization” since it may lead them to the gallows…

As for Europeans, they are allegedly worried because Saddam’s execution would violate the European Union’s recent prohibition against capital punishment. How Iraq punishes criminals is, of course, no business of the EU. Europe quite happily executed its own pro-Nazi war criminals in 1945. Norway even restored the death penalty in order to do so. Today public opinion is divided on the issue throughout Europe-and supportive in several countries. Besides, the Iraqis thought that trying their own dictator was both a matter for them and a chance to show that Iraq could handle such a trial well…

And what of the United States? Democrats are worried, naturally enough, that this “November surprise” might deprive them of an election victory they can already taste… The main electoral effect of the Saddam verdict will be a very modest boost for the Republicans, at most. John Kerry’s gaffe had greater impact.

The time for rejoicing over such things as the execution of Saddam or the capture of Osama bin Laden has long passed. Once they would have seemed to be the climax of the war on terror pointing to its relatively early end after some mopping up. Today, however, the Saddam verdict is merely a minor victory for the U.S. and its allies in a long war.

It meets our desire for justice and it is, therefore, a cause for sombre satisfaction. But we realize that out there are millions of jihadists anxious for our defeat and thus, statistically speaking, hundreds of likely Osamas and thousands of potential Saddams.

(John O’Sullivan is a senior fellow at the Hudson Institute in Washington and editor-at-large of the National Review.)

DON’T HANG SADDAM

Christopher Hitchens

National Post, November 7, 2006

Of all the things that Saddam Hussein yelled as the court was cleared after he was sentenced to hang for crimes against humanity Sunday, surely the best was, “Long Live the Kurds!” As far as I know, this is a first for Saddam Hussein. But the irony, if there is any, is actually the other way around. The elected president of Iraq, Kurdish leader Jalal Talabani, is opposed on principle to capital punishment.

Before the arrival of coalition forces in Iraq, one of Kurdistan’s most respected leaders, Barham Salih, was the target of an assassination attempt by the Ansar al-Islam group. He was saved only by the momentary impulse to duck back through his doorway for a cell phone he had left behind, but several of his entourage were murdered. The killers were apprehended, tried and sentenced to death.

Salih is now Iraq’s Deputy Prime Minister, but he was then the man responsible for signing death warrants in northern Iraq. He declined to sign the warrants for those who had murdered his friends and nearly taken his own life. At the time, he told me that he hoped the new Iraq would abolish capital punishment “even when we capture Saddam Hussein.” Like many leading Kurds, he had been influenced by discussions with Danielle Mitterrand, the widow of former French president Francois Mitterrand, who was a great friend of Kurdistan as well as a stern foe of capital punishment. The idea was that the new Iraq would begin life without the death penalty… Almost every preceding change of regime in the country was marked by the execution of at least some of the previous leadership. Perhaps it might be desirable to break with this depressing tradition. Moreover, now that even the Turks have abolished capital punishment just next door, in order to conform with European Union stipulations, why should Iraq not signal its membership of the community of civilized nations in the same way?…

The case for carrying out the sentence of death, or for not protesting if it is carried out, is the following: Saddam Hussein has been tried under Iraqi law as it stood when he was dictator and has been sentenced according to that law. It is not for anyone else to tell Iraqi courts and judges what to do or to suggest retrospective changes in the system. He had the day in court that was denied to his victims, and the sentence should stand, even if the Iraqi parliament should later decide to abolish capital punishment.

There is another argument that has nothing to do with law. It concerns the bizarre word closure. A better word might be catharsis. After 1945, for example, it would have seemed grotesque that millions of Jews and Poles and Russians and Gypsies should be dead and their murderers still alive and able to give interviews and write memoirs. The hanging of the principal Nazi criminals was more an act of hygiene than of law, as well as an absolute assurance to their surviving victims (and to their remaining sympathizers) that there could be no second act. One’s humanity, here, is partly enlisted for once in favour of the death penalty. Nuremberg pressed the last breath out of the putrescent body of fascism, and it allowed others to breathe more freely at the same time. Iraq is a country absolutely febrile with rumor and paranoia: I never cease to be amazed at the way in which people’s expressions still change into a flicker of fear when the name of their sadistic former boss is even so much as mentioned.

Millions of people will not even start to relax until they are absolutely sure that the great werewolf will not come back. In this sense, you could argue that hanging the chief butcher and torturer would be an act of mass emancipation. But this still seems to me to be more like an exorcism than an execution-a concession to superstition and primitive emotion. And we have enough of both in today’s Iraq.

One strong objection to all executions is that they involve the destruction of evidence. Once the accused has been removed from the scene, he cannot shed any more light on the crime, investigation of which often has to be reopened… If he is dropped through the trapdoor, we will never get to hear Saddam Hussein’s response to two very important historic events-the Anfal campaign to exterminate the Kurds in the 1980s and the…way in which he restored himself to power after the Kuwait war. And there will always be the suspicion that he might have pointed the finger at Western complicity in both of these terrible episodes…

It is a shame that the Kurds were not part of the centrepiece of this trial, just as it is impressive that their leaders are the ones most in favour of magnanimity. And these, by the way, are the people that every liberal in the world is currently arguing that we should desert.

(Christopher Hitchens is a columnist for Vanity Fair. His most recent book is Thomas Jefferson: Author of America.)

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