So human rights groups have been alleging that Saddam’s trial was unfair. Apparently they allege several types of procedural errors made the trial unfair and as a result Saddam shouldn’t be put to death.

This seems to be totally backwards. A trial is not fair because it implements some arbitrary list of procedures. During Jim Crow a white man on trial for killing a black man could have (though probably wasn’t) a trial that dotted every legal i and crossed every t but it would still be unfair if he had a prejudiced mostly white jury, even if they properly represent the district. On the other side in the absence of formalized legal authority it would be fair to prosecute wrongdoers before informal juries using whatever procedures seemed most likely to give the correct result. What makes a trial fair or not is whether it is likely to get the correct result, perhaps with the additional requirement that there be an articulable individualized justification for guilty verdicts.

Worse if you really believe that it is procedure that makes a trial fair or not you have to decide which procedure is the fair one. Every western country has different procedures, some use an adversarial process, in others you have no adversarial representation and everyone participates in an impartial attempt to arrive at the truth. Surely this doesn’t mean that only one of these sets of procedures counts as fair. Yet many of the complaints about the Saddam trial are not really beyond this sort of national variation. Sure, statements from witnesses were read into the record without Saddam having the opportunity to confront them but different countries have different standards as to when you have a right to confront the witnesses. Many countries allow underage victims of child abuse to submit evidence without having to confront the accused. Why not give supposed victims of genocide the same privilege, especially in situations where they have very real fears of reprisal. The idea that a written transcript is essential to a fair trial is just laughable (fair trials were impossible before written language?) and many of the other worries seem equally trivial.

Ultimately though the procedure is totally irrelevant in this case. We demand certain procedures as guards against unfair trials not because the procedures are essential to fairness themselves. We then insist that these procedures be applied uniformly to prevent abuses, rejecting trials that don’t conform even when they obviously get the right results to make sure the rules will be followed in the future. However, these concerns are totally irrelevant to the Saddam trial. There is no persistent institution that has formal authority to try Saddam (his crimes happened before ICJ was constituted). No one else will ever be tried under the procedures that are set out for Saddam. He is being tried on the same grounds that the Nazis were tried. Namely that they did something so bad that they need to be punished regardless of any laws on the books or treaties their country has signed.

Really the entire notion of giving Saddam a trial, rather than just convicting him and trotting out the evidence is a joke. We know he committed genocide we are punishing him to send a message to other dictators who might do the same. Even Saddam thinks having a trial is a joke saying everyone knew who was in charge. No trial convicting Saddam could ever be unfair as we already know he is guilty and since his trial is unique it doesn’t really make sense to ask if these rules generally lead to fair trials. Even if a ‘procedurally correct’ trial would set Saddam free we should execute him anyway. The harm done by unfair trials of deposed dictators is never going to be as large as the benefit of deterring genocide.

I’m getting more and more annoyed at the confusion between law and morality that seems to be endemic among international human rights groups.