War crimes trials are often controversial, and few such trials in history have been more so than that of Saddam Hussein, the former president of Iraq. In this trial, controversy has raged over the very nature of war crimes justice, the relevance or otherwise of the legality of the invasion of Iraq and the subsequent formation of a war crimes tribunal to try the ousted Iraqi leader and his top lieutenants, and the courtroom problems of inherently political trials. Despite legitimate concerns in these areas, however, Saddam Hussein has received an appropriate and fair trial, both in light of the specific details of the judicial proceedings and in light of the political nature of war crimes justice in an anarchic system of states.
War crimes justice is political justice. It is justice at the interface of law and politics. War crimes trials involve crimes committed for political reasons, by persons with political or military leadership roles or under their command, and the trials seek an outcome that is essentially political. Such outcomes include the removal of, or the establishment of particular kinds of, political order. Often, this outcome is achieved through the convenient individualization of guilt as a way of dealing with historical memory in situations where all the potential defendants, such as all Nazi or all Baathist leaders, cannot conceivably be put on trial, even though the destruction of their ideology or political order is what is sought by the trial. This establishment of guilt by proxy is unnecessary in domestic criminal trials, where the defendants are easily identifiable and their numbers manageable, but it is an essential component of political justice. War crimes trials deal with wider issues of societal order, while normal criminal trials address narrower questions of law and order within a generally agreed societal framework. For all these reasons, war crimes trials, which typically deal with situations involving multiple victims or mass atrocity, are fundamentally different from ordinary criminal trials in domestic legal systems.
The tribunals in which presumed war criminals are prosecuted have historically been established ad hoc. They are formed by the political decisions of a victor state or collection of victors in war (as in the case of the Nuremberg and Tokyo tribunals) or states acting through the political organs of multilateral international organizations, such as the United Nations Security Council (as with the tribunals for Rwanda and Yugoslavia). In all these cases the decisions are essentially driven by the wills of powerful states, and are often preceded by political debates. These debates, through which consensus is reached on the need for and the role of tribunals, are necessary because trying defeated leaders is essentially a political act. In contrast, no such controversies precede the trial of a serial killer or rapist in, say, the city of Denver, because by virtue of the sovereign powers vested in the Colorado and U.S. governments through their constitutions, the forums for such trials already exist and their jurisdiction is uncontested. The debates in such cases usually concern only the facts and whether guilt has been proved or not. In a war crimes trial, however, there are prior questions to be addressed: should the defendant be put on trial, and if so, who should try him? The impossibility of …