There seems to be an emerging consensus overseas that, whatever the actual composition of the court that eventually tries Saddam Hussein, it must:
- Be located in Iraq;
- Have a significant Iraqi/Pan-Arabic judicial presence; and
- Not even consider the death penalty.
See, e.g., "Now the Difficult Bit," The Guardian (16 Dec 03); "Konvention bietet Schutz," Frankfurter Rundschau (16 Dec 03) (implied); David Sanger, "Bush will let Iraqis decide fate of Saddam," International Herald Tribune (16 Dec 03) (contextual comments).
With all due respect to the individual integrity of the individuals involved (or even considered), I have a great deal of difficulty with having more than a single "local" representative on such a tribunal, whether specially constituted or otherwise. Bluntly, the justice systems in Southwest Asianot excluding Israelare so thoroughly coopted by (totalitarian) governmental and other special interests that even a trial that is in fact perfectly fair will remain open to question. Also, in the long run, this will make "local" jurists targets for retaliation, whatever their judgments may beand what would it say to residents of the region if the judges were forced to flee for their lives after rending a verdict?
The real problem is that the Bush administration (and, for that matter, the UN, once it became clear that the US would act unilaterally) made no plans in advance, or certainly not sufficient plans to announce them. The major credibility problem with the Nuremberg proceedings was precisely their newness: nonspecialists (including, sad to say, some prominent historians who to this day misstate the scope of the proceedings) had no comparable context. At least in Germany there had been a realistic judicial system prior to Hitler's rise to power. No one can say that about Iraq.