Alan Dershowitz: Was Saddam's Trial Fair?
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.
The trial itself was repeatedly disrupted by in-court outbursts, out-of-court murders of lawyers, and frequent changes of court personnel. It did not go nearly as smoothly as Nuremberg: But those trials were conducted after World War II had been decisively won and all resistance ended. The trial of Saddam was conducted in the midst of continuing resistance and ongoing violence. Considering this important difference, the trial process was remarkably efficient.
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 (many quickly commuted) 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....
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The trial itself was repeatedly disrupted by in-court outbursts, out-of-court murders of lawyers, and frequent changes of court personnel. It did not go nearly as smoothly as Nuremberg: But those trials were conducted after World War II had been decisively won and all resistance ended. The trial of Saddam was conducted in the midst of continuing resistance and ongoing violence. Considering this important difference, the trial process was remarkably efficient.
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 (many quickly commuted) 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....