Does the slaying of Sadoun al-Janabi, one of the defense lawyers in Saddam’s trial, show that the decision not to use an international tribunal was a mistake? A New York Times article (available here) answers this question with a “yes” (albeit, in journalistic style, by implication):
The execution-style killing of a defense lawyer in the trial of Saddam Hussein and some top associates ... renewed doubts about whether it is possible to hold a fair trial in the midst of a war that has spurred a wave of revenge killings against people linked to Mr. Hussein....
Many Western legal experts and rights advocates have argued that Mr. Hussein should have been tried before an international court, or in an Iraqi court with a strong international dimension. But the Bush administration and its Iraqi political allies rejected that in favor of an Iraqi tribunal sitting in Baghdad, partly because an international court would not have the option of imposing the death penalty, which many Iraqis believe is the only fit punishment for Mr. Hussein.
The story implies that the assassination of the defense lawyer shows that only an international trial of Saddam Hussein could have been fair, and that the Bush administration was willing to do without fairness in order (“partly”) to ensure that the death penalty will be imposed.
But this argument confuses two different issues: the character of the trial and the location of the trial. The first issue is whether the judges and the procedures of the trial should be international or national. The second issue is whether the trial should be located in Iraq or in some other country. A national trial could be held outside Iraq; and an international trial could be held in Iraq.
The unfortunate death of Sadoun al-Janabi provides a reason for locating the trial outside Iraq if it shows that security for trial personnel cannot be maintained in Iraq, but not for thinking that the trial should have international judges and procedures.
In light of the logical confusion at the heart of the Times article, one can't help thinking that critics will seize on any setback in Saddam’s trial as further evidence that an international tribunal should have been used. Why so much pressure for an international tribunal – even long after the decision has been made – when no one paid much attention to whether the leaders of Argentina, or Chile, or Hungary, or East Germany, or South Africa, or any other post-transition country of the 1980s and 1990s would receive a domestic trial or an international trial? Perhaps there is more enthusiasm for international tribunals today, thanks to the Yugoslavia and Rwanda tribunals, and the creation of the International Criminal Court. But experience with these tribunals hardly inspires confidence in the international justice system, if that is the right term. Another answer is that critics think that the Bush administration has something to fear from international trials – openness, independence, inquiry into American motives and means – and thus see the American-influenced Iraqi trial as a form of cover-up that needs to be exposed. Lost in this cloud of idealism and suspicion is any consideration of the needs of the Iraqis themselves.
For an interesting analysis of the first day of the trial by a person involved in the training of the judges, click here.