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The execution of Saddam Hussein is historic in its somberness, being the first time in history that a former head of state has been charged with crimes against humanity, tried, convicted and executed. One of the key objects in articulating the crime for the first time at Nuremberg, following the Second World War, was to send a clear, unequivocal message: Facing the international criminal justice system is the fate that potentially awaits all would-be Hitlers. Hitler himself was by then dead, and Slobodan Milosevic, the former Yugoslav president, died of natural causes while his trial was still in progress in the International Criminal Tribunal for the Former Yugoslavia, a direct “descendant” of the Nuremberg model. In any event, being a creature of international law, which frowns on capital punishment, the Yugoslav tribunal may only impose a maximum sentence of life imprisonment. The Iraqi tribunal, by contrast, being a creation of domestic legislation, is not subject to that constraint. Critics point to problems with the trial of Hussein, arising out of the volatile situation in Iraq. Although the seriousness of some of the disruptions to the trial cannot be denied, the history of major war crimes tribunals, beginning with Nuremberg itself, demonstrates that all, without exception, have been subject to shortcomings, which have presented challenges for every following generation of tribunals and trials. Each has, in its own way, improved upon the precedents bequeathed to it. The Nuremberg trials themselves were criticized, in the first place, for constituting victors’ justice, with the victorious allies holding the vanquished leaders to account. As a result, in modern examples, prosecutors have jurisdiction over perpetrators from all sides. Another criticism was that the Nuremberg tribunals were merely ad hoc, as they were created for a particular purpose and then disbanded once the object had been achieved. The response of the international legal system was to create a permanent International Criminal Court. More recently, the trial of Milosevic revealed a new shortcoming when it dragged into its fifth year. The Iraqis learned from this, with the result that the case against Hussein was divided into short, manageable segments. The point is that, being products of human ingenuity, war crimes trials (indeed, like domestic trials) are subject to human imperfection; the rationale for an appeals process is firmly rooted in this truism. The important thing is that lessons be learned for the future, so that the process of improvement continues. The imperfections in the Iraqi system, which have drawn so much fire, have their origins in the debate, immediately following Hussein’s capture, as to whether he should be tried nationally or in an international tribunal. The argument that won the day was, in substance: He was our president, his crimes were committed on our soil and against our people; as a result, we have the first right to bring him to justice. In part, this reasoning was itself an outgrowth of a lesson from the Rwanda tribunal, which is sitting in Tanzania, some distance from the locus of the atrocities. This has brought with it a sense of remoteness, and a resultant difficulty in achieving the sense of expiation and cleansing necessary to enable the nation to move forward. No doubt the Iraqi experience will cause the pendulum to swing the other way, and militate against national trials, particularly in volatile contexts. The issue is not whether there are imperfections; there have always been, and always will be. The real issue, in every case, is: Was justice done in a substantial sense? At Nuremberg, despite the shortcomings, an impartial observer would be hard put to argue that it was not. The same applies to Hussein. Proof of his being the directing mind behind the massacre of 148 victims at al-Dujail was unambiguous and overwhelming, and included uncontradicted evidence of his signature on critical documents. Justice was substantially done At the end of the day, the truth came out and justice was done. To the extent that the shortcomings marred the proceedings, it was a case of imperfect justice being administered in an imperfect world. Tyrants such as Saddam Hussein do not usually believe that they will lose power and, if they do, that they will be held to account (witness all those brutal despots who lived out their days in salubrious exile). If the chilling images of Hussein being led to the gallows give leaders of even one brutal regime pause, and contribute to an amelioration of even some of their excesses, the Nuremberg goal of sending messages will, in some measure, have been achieved. Harry Reicher teaches international human rights and law and the Holocaust at the University of Pennsylvania Law School.

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