A Jujitsu Defense?
Human Rights Watch has issued a report expressing concerns about the fairness of Saddam’s trial. The report makes some useful points but otherwise is a triumph of the legalistic mentality over pragmatism. Whether Saddam is executed or imprisoned for life, the outcome will be (substantively) fair, regardless of whether the trial is procedurally fair. The only possible unfairness would be an acquittal or short sentence. To be sure, the trial should be procedurally fair, to the extent that logistics, politics, security, and administrative convenience permit. But procedural fairness does not exist in a vacuum; it must be weighed against other considerations. HRW-style legalism is what led to the Milosevic trial, which has been dragging on for almost four years with no end in sight. If procedural fairness as HRW understands it requires a four year trial of Saddam, then better to do without procedural fairness.
The New York Times reports that many Iraqi judges feel pressure coming from their government. The Iraqi judges are mostly (entirely?) former Baathists who can be dismissed under debaathification statutes, and thus are continuing in office by the grace of the government. Many judges have already been dismissed. The remaining judges apparently fear that if they don’t produce the kind of trial that the government wants, the government might punish them by firing them.
For the New York Times, this is ominous news. For everyone who values an independent judiciary, this is ominous news. In Iraq today, though, it might be good news. The government wants Saddam to be punished; it wants a trial that explains why he ought to be punished; and it wants this done with dispatch. This is what everyone wants, or ought to want. Judges who want to please the government have an incentive to deliver. This is not necessarily what perfectly independent judges would do, especially perfectly independent judges with a Baathist past, possible lingering Baathist sympathies, or even understandable fear of their former boss and his supporters, who are likely to apply the principle that the apostate is worse than the heathen.
The Times also reports that Saddam is considering a jujitsu defense – one so incompetent that it will make the trial seem farcical and his conviction unjust. This is not likely to succeed. What Saddam should do is offer a highly competent defense that denies the authority of the tribunal. Such a defense may indeed aim to turn the trial into a farce – defendants in political trials have always tried this strategy – but one wants a competently executed farce, not one easily averted by the judges. If Saddam thinks that a competent political defense of this sort is the same thing as an incompetent legal defense, then he’s in trouble. More likely, the Times is mistaken