I wanted to make it clear that if we had a uniform legal and procedural framework to try dictators for crimes against humanity I would probably support trying Saddam under that framework. Failing to try Saddam under such a framework would not be unfair, we know he is guilty, but the precedential value of following the rules might help avoid future unfairness. The problem is that no such legal framework exists. In fact I was wrong in assuming that the ICJ will ever be able to take jurisdiction over these sort of incidents, they only have jurisdiction over states.

For instance the war crimes in the Bosnian conflict are being prosecuted by an ad hoc court. Interestingly despite being set up in the Hague with international jurists Milosevic was not allowed to cross examine General Clark about the NATO involvement. In any case the point is no matter what a new court with new rules was necessary to try Saddam for his crimes. Thus there is no getting around the fact that Saddam was going to be tried using procedures handpicked for this situation.

But what is it that makes the procedural rules of a court fair or unfair? As I argued previously the rules of a court are fair when they guarantee that trials are likely to result in the correct outcome. Given that Saddam and his compatriots are the only ones who will be tried using these procedures they are fair just if they give the right result for Saddam and his companions. So the rules for Saddam’s trial could have just explicitly stated he was guilty and the trial would have been no less fair.

In other words once you are handpicking the procedure of a trial for a specific defendant the only sense in which they are fair or not is whether they give the right result for that individual.