The Volokh Conspiracy - <i>Enemy of the State: The Trial and Execution of Saddam Hussein</i>:

The trial of Saddam Hussein was mired in controversy from start to finish. Opponents of the Iraq invasion attacked it from the outset, and many international law experts questioned whether a domestic tribunal, such as that created to try Hussein and other members of his regime, was an appropriate means to prosecute a head of state for his alleged crimes against humanity. Many would have preferred a truly international tribunal, such as the International Criminal Court or a tribunal like that which had been used for the trial of Slobodan Milosevic. Others raised concerns about the tribunal's occasionally chaotic proceedings and its authorization of the death penalty, in accordance with Iraqi law. Such criticisms notwithstanding, it is likely the tribunal will be recognized as a landmark in international criminal law, and not simply because it successfully tried and convicted Hussein for some of the atrocities committed by his regime.

The story of the Hussein trial, from the creation of the tribunal through Hussein's conviction and execution, is told in Enemy of the State: The Trial and Execution of Saddam Hussein by Vanderbilt law school's Michael Newton and my colleague Michael Scharf. Both participated in the development of the tribunal. As a consequence, the book offers a detailed, inside account of the court's creation and its proceedings, including gavel-to-gavel coverage of the trial itself and legal analysis of its decision. The book offers many insights and revelations omitted by contemporary media accounts, and places the tribunal in its broader international law context.

While some disparaged the decision to try Hussein before a domestic tribunal, as opposed to an international tribunal or the International Criminal Court, the book convinced me that such criticisms were misguided. Conducting the trial in an Iraqi court, and relying upon Iraqi law, helped legitimize the trial within Iraq and could serve to reinforce rule-of-law values in the country going forward. There is an inevitable hint of "victor's justice" in any trial of a former head of state, but relying upon a domestic court reduced the taint. The ICC was also not an option because the crimes for which Hussein was tried occurred before the ICC's creation in 2002, depriving that court of jurisdiction, and the tribunal took account of international law principles in its work.

The trial itself was hardly perfect — at times it was quite chaotic, largely due to the defense team's efforts to disrupt the proceedings — but I think it will become a landmark in international criminal law. I suspect it will influence future war crimes tribunals as well. In particular, the tribunal may encourage greater reliance upon domestic war crimes tribunals in lieu of international courts. At present, Michael Scharf is working with the government of Uganda to create a war crimes tribunal for the trial of Joseph Kony and other leaders of the LRA for their atrocities. Because the ICC was explicitly created as a court of law resort, it only makes sense for countries like Uganda to try and conduct domestic trials first. The Iraqi tribunal provides a model for how that can be done, as well as some lessons for what mistakes to avoid. As such, the precedents set by the tribunal are likely to be among the more important legal legacies of the Iraq war.

	[Jonathan Adler, January 22, 2009 at 8:19am] Trackbacks Enemy of the State: The Trial and Execution of Saddam Hussein: The trial of Saddam Hussein was mired in controversy from start to finish. Opponents of the Iraq invasion attacked it from the outset, and many international law experts questioned whether a domestic tribunal, such as that created to try Hussein and other members of his regime, was an appropriate means to prosecute a head of state for his alleged crimes against humanity. Many would have preferred a truly international tribunal, such as the International Criminal Court or a tribunal like that which had been used for the trial of Slobodan Milosevic. Others raised concerns about the tribunal's occasionally chaotic proceedings and its authorization of the death penalty, in accordance with Iraqi law. Such criticisms notwithstanding, it is likely the tribunal will be recognized as a landmark in international criminal law, and not simply because it successfully tried and convicted Hussein for some of the atrocities committed by his regime. The story of the Hussein trial, from the creation of the tribunal through Hussein's conviction and execution, is told in Enemy of the State: The Trial and Execution of Saddam Hussein by Vanderbilt law school's Michael Newton and my colleague Michael Scharf. Both participated in the development of the tribunal. As a consequence, the book offers a detailed, inside account of the court's creation and its proceedings, including gavel-to-gavel coverage of the trial itself and legal analysis of its decision. The book offers many insights and revelations omitted by contemporary media accounts, and places the tribunal in its broader international law context. While some disparaged the decision to try Hussein before a domestic tribunal, as opposed to an international tribunal or the International Criminal Court, the book convinced me that such criticisms were misguided. Conducting the trial in an Iraqi court, and relying upon Iraqi law, helped legitimize the trial within Iraq and could serve to reinforce rule-of-law values in the country going forward. There is an inevitable hint of "victor's justice" in any trial of a former head of state, but relying upon a domestic court reduced the taint. The ICC was also not an option because the crimes for which Hussein was tried occurred before the ICC's creation in 2002, depriving that court of jurisdiction, and the tribunal took account of international law principles in its work. The trial itself was hardly perfect — at times it was quite chaotic, largely due to the defense team's efforts to disrupt the proceedings — but I think it will become a landmark in international criminal law. I suspect it will influence future war crimes tribunals as well. In particular, the tribunal may encourage greater reliance upon domestic war crimes tribunals in lieu of international courts. At present, Michael Scharf is working with the government of Uganda to create a war crimes tribunal for the trial of Joseph Kony and other leaders of the LRA for their atrocities. Because the ICC was explicitly created as a court of law resort, it only makes sense for countries like Uganda to try and conduct domestic trials first. The Iraqi tribunal provides a model for how that can be done, as well as some lessons for what mistakes to avoid. As such, the precedents set by the tribunal are likely to be among the more important legal legacies of the Iraq war.