Trials of war criminals were once serious business. Recall the photographs of Herman Goering and Rudolf Hess sitting glumly in the dock at Nuremberg. Some Nazi leaders were even hanged after relatively short but fair trials.

Nowadays, legal proceedings against the world's most wicked leaders have become farce. The trial of Saddam Hussein and his Ba’athist cronies offers an ongoing series of embarrassments. The defendants try one antic after another, and Hussein shows every form of contempt possible except “mooning” the judge. It is hard to expect an outcome that will appear legitimate in the eyes of Iraqis or the world.

Meanwhile, Slobodan Milosevic’s trial morphed into a funeral after four boring years of testimony and a sunken cost of more than $200 million. In Cambodia, the United Nations and the government have dickered for almost a decade about how to bring surviving Khmer Rouge figures to trial.

The mass killers who took power in the twentieth century were doomed to being killed in popular revolts or to being tried for their crimes – that is, if they did not die in power. Who can be proud that Romania’s last Communist boss, Nicolai Ceaucescu, and his wife were shot without even the semblance of a fair trial? The formal trappings of a real court always seem better than instant justice, even if the end result is also death.

Today there are two plausible ways to proceed against a deposed tyrant. A nation could put its own former leaders on trial, as the Argentines did in the 1980’s with the generals responsible for the disappearance of more than 5,000 fellow citizens. At the international level, the Nuremberg model remains available to generate further trials, though under the dubious conditions that victorious powers sometimes impose liability for crimes, such as “crimes against humanity” that were are not properly defined at the time they are committed.

There was a time when we could see the advantages of both national and international trials. Home grown trials enabled the local community to work out its grief by participating closely in the process. As judges and juries, the defendant’s compatriots could also bring greater sensitivity to the assessment of guilt because they appreciated the tough conditions under which a deposed dictator made his decisions.

Argentina’s trial of the generals was a successful ritual in the painstaking transition from military junta to democracy, but the experience ended with weeping self-doubt. Even after conviction, the generals were sufficiently strong to exact a termination of the trials and then a pardon from the succeeding president. Argentine politics is still embroiled in the legal consequences of those trials of 20 years ago.

At the international level, the UN Security Council’s decision to establish the International Criminal Tribunal for the Former Yugoslavia (ICTY) was also greeted with great confidence. The ICTY did make several foundational decisions under the leadership of Antonio Cassese. But then the judges had the misfortune of realizing their fondest dream – trying in their court the arch-villain Slobodan Milosevic.

It is not clear how the Serbs would have handled Milosevic in a local trial. A lot would have depended on the political party that controlled the court. At the international level, the fear was not of too much politics but of too much law. Milosevic’s trial had to be more than fair, it had to be an emblem of UN Justice. Thus Milosevic was allowed to defend himself – a huge mistake in terms of the trial’s length and efficiency. There was no limit on the number of witnesses the prosecution called to testify about the same gruesome story of Serbian aggression and brutality.

It will take many months to determine what went wrong and why the trial lasted a scandalous four years. My hunch is that the court’s well-meaning officials were too influenced by the South African Peace and Reconciliation Commission, a model touted in law schools as the desired alternative to retributive justice. In the South African proceedings the most important question was not the future of the defendant but the past of the victims. Every victim was encouraged to tell his story and the defendant listened.

In the case of massacres endured in the twentieth century, such storytelling can last decades. Encouraging victims to speak and then giving the defendant the right to filibuster the proceedings by touting his merits as a political leader amounts to a formula for infinite delay.

One lesson we have learned from both the Milosevic and Hussein trials is that one should not put men or women on trial in order to terminate their charismatic appeal. They will turn the trial around – particularly if they are allowed to defend themselves – and use the courtroom to vindicate their careers. Tyrants should be tried only after they are clearly defeated.

Ironically, it was an advantage of the Nuremberg courts that they were staffed by the representatives of the victorious powers. They were a constant reminder to Goering, Hess, and their henchmen that the Allies were in charge, that the Nazis were irreversibly defeated. Punishing the guilty, rather than shaping the way history would be written, was always the clear objective of the trial.

The tragedy of the Milosevic and Hussein trials is that the “i”s of history were not yet fully dotted and history itself was on trial. The resulting hesitancy of those in charge gave rise to procedures – both international and national – that facilitated fantasies of vindication and return. In the case of Hussein, that fantasy may yet become real.