Post Date: November 7, 2006

The following op-ed, Imperfect, But Fair Enough, was written by Professor Alan Dershowitz and published in the Wall Street Journal on November 7, 2006.

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.

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.

Would the trial have been fairer if it had been conducted by some sort of international tribunal situated outside Iraq? Certainly the threats to the lawyers would have been less dramatic. The death penalty probably would not have been imposed, since any court with European judges would not do so. The problem is that no international tribunal has yet established sufficient credibility, certainly not any that are under the auspices of the U.N. In this respect, the Baghdad trial represents a failure of the international community to devise a satisfactory process.

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 or modification, 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 particular 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.