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Twice last year, a notorious former dictator charged with crimes against humanity died before the final adjudication of the major charges against him. In March 2006, Dutch jail guards found Slobodan Milosevic, the infamous “Butcher of Belgrade,” dead in his bed from a heart attack. This happened in the fifth year of a marathon trial before the International Criminal Tribunal for the Former Yugoslavia. In December, Saddam Hussein � unoriginally dubbed the “Butcher of Baghdad” � was hanged by the new Iraqi government after the first of three trials had ended and been swiftly approved by an appeals court. The contrasting lessons to be learned from these two cases are even more dramatic than the difference between a hanging and a heart attack. They illustrate how the American affection for hanging frustrates meaningful principles of international justice. It should never happen again. By all appearances, the endless trial of Milosevic seemed like international justice for wimps. The Butcher of Belgrade was not merely the defendant in his trial but also the loudest noise. He was bellicose, an irrepressible bully, and he refused to defer to the tribunal. For Milosevic, The Hague was supposed to be a repetitive talk-a-thon that led nowhere. What was the point of all this evidence of atrocity if the defendant was morally tone deaf? Were all his victims cheated by fate when nature was in a bigger hurry than the International Criminal Court? Could anything be worse than this inconclusive marathon? Yes indeed! We need only consult the saga of Hussein to appreciate the wisdom of letting Milosevic die in his prison bed, and letting an international criminal court try Charles Taylor of Sierra Leone this year. Hussein was caught and kept by his American enemies, tried before a jerrybuilt tribunal of the Iraqi government-in-formation and hanged before the ink was dry on the judgment in his pro-forma appeal. The hasty hanging, captured for all the world on video, looked an awful lot like a Shiite lynching of a Sunni enemy, just one more sectarian killing in a country with thousands. Even George W. Bush complained that it looked a lot like a “vengeance killing,” but he was quick to distinguish the necktie party on Dec. 30 from the due process of Hussein’s trial. He was too quick. Too quick because the judicial proceedings themselves often verged on kangaroo court. No fewer than three defense lawyers were killed in three separate incidents during the trial, and a fourth left the country after being wounded. The chief judge who delivered Hussein’s verdict was the third man on the job � one quit under intense political pressure, a second was vetoed for excessive sympathies toward the defendant. These kinds of pressures produce tribunals that my students call “result oriented.” Then there was the superswift appellate review and hair-trigger timing of the execution. One other goof was hanging Hussein for his role in the killing of Shiite villagers without waiting for his trial on crimes against thousands of Kurds to reach a conclusion. All of this mess happened because of two basic problems with the genocide trial of Hussein. First, these proceedings were literally “victor’s justice.” Hussein was not tried before a world court or an international tribunal; he was charged, judged and hanged by his domestic enemies. This is simply not the way to construct a principled international law on genocide and human rights. And the Americans did this with full knowledge that it deprived the tribunal of any international credibility. Why? For only one reason: No neutral international tribunal would ever allow capital punishment. That botched hanging was actually supposed to be the central prize of keeping Hussein in Iraq. Do we really think that the home-cooked justice would have succeeded if only our clients had done the hanging right (or confiscated the video)? Was the disaster of the hanging just an avoidable failure of public relations? It turns out that hanging and human rights don’t mix well and never did. After World War II, there were hangings in some formerly occupied European states that knew better but couldn’t restrain their own need for victor’s justice. And there was Nuremberg, with its odd mix of a jurisprudence of crimes against humanity and hanging Nazis. But that was the beginning of the end of state killing in Western Europe. State killing is so close to being itself a crime against respect for human life that coherent human rights law enforcement can’t use it. The felt need for a hanging poisoned the case against Hussein from its very beginning. The crimes against human rights committed by thugs like Saddam Hussein, Slobodan Milosevic or Charles Taylor will always be more terrible than the punishments that any civilized tribunal can impose on them. But that’s the central point of human rights in the modern world. Franklin E. Zimring is the William G. Simon Professor of Law and Wolfen Distinguished Scholar at the University of California, Berkeley School of Law.

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