The prosecution of Saddam Hussein and his co-defendants is off to a rocky start. As of last week, the trial has been adjourned twice after only a day and a half of proceedings; two of the defense lawyers have been murdered, perhaps by Iraqi security agents; and Hussein has showered the judges with contempt and challenged the legitimacy of the tribunal.
Can the trial in fact succeed? That depends on what we think are its goals.
The principal rationale for criminal justice is retribution--to punish those who have harmed others and violated society's norms. But retribution--or revenge--could be achieved without courts and due process. Trials also ordinarily produce reliable determinations of guilt or innocence, but few people, either inside or outside Iraq, have genuine doubts about Hussein's guilt.
The success of the Hussein trial, then, should be judged by whether it can also accomplish any of the broader goals that criminal prosecutions can serve in societies that have experienced widespread atrocities:
1) Providing justice for victims and documenting history. Trials enable victims to confront their abusers, a psychologically important step in the social re-integration of victimized groups. Trials also generate an authoritative record of the crimes committed by a previous regime. This can compel other groups in society--including perpetrators--to acknowledge that abuses occurred and can refute subsequent attempts at historical revisionism. This is today viewed as one of the important legacies of the Nuremberg trials.
The Hussein trial could provide a forum for victims, but only if the tribunal is allowed to address the full range of atrocities perpetrated by his regime. At this point, Hussein is being tried only for crimes committed in connection with a single episode--the killing and torture of residents of the village of Dujail after an assassination attempt on Hussein in 1982. Iraqi prosecutors have said that, after the Dujail case, they will pursue other cases involving the killings of tens of thousands of Shiites and Kurds.
A full airing of the vast tableau of Hussein's crimes, however, could take years; the trial of former Balkan strongman Slobodan Milosevic on crimes of comparable scope before the Yugoslavia War Crimes Tribunal in The Hague has been underway for almost four years. Such a timeline is unlikely to satisfy Iraqi street protesters demanding a swift trial and hanging of Hussein. Prime Minister Ibrahim Jafari's declaration that the Hussein trial "is not a research project" suggests the Iraqi government may feel pressure to sacrifice the goal of giving Hussein's victims a chance to record the atrocities they suffered in the interests of swift retribution.
2) Contributing to peace and reconciliation. Particularly in societies emerging from ethnic or sectarian conflicts, criminal trials individualize responsibility for abuses. They thus allow victims of atrocities to move beyond collective condemnation of the ethnic or religious groups from which their abusers came, enabling once-divided groups to begin to reconcile.
But the Hussein trial seems more likely to inflame sectarian tensions than to soothe them, at least in the short term. It gives Hussein a platform from which to challenge the Shiite-dominated government and to rally Sunni insurgents. Shiites and Kurds, frustrated by delays in having Hussein face the justice they believe he deserves, may escalate attacks against Sunni or Baathist targets. The net result may be a spiraling pattern of vigilantism and counter-vigilantism.
3) Promoting the rule of law. Subjecting a former dictator to a court of law, rather than a firing squad, can commit a transitional regime to due process and the rule of law. But early indications do not give hope that the Hussein trial will promote this goal. Last-minute legal changes--such as the elimination of the right of defendants to represent themselves--have been made for political, rather than legal, reasons. Tribunal officials have been selectively targeted for dismissal by the de-Baathification Commission headed by Ahmad Chalabi.
Moreover, Iraq's president announced in September that he had learned from one of the tribunal's investigating judges that Hussein had confessed to ordering executions during the notorious Anfal campaign, raising further questions about the judicial independence of the tribunal. Even the decision to try Hussein for the Dujail killings before the completion of investigations of more serious atrocities appears to be politically motivated. The government hopes to demoralize Hussein loyalists by securing a swift conviction on the easiest charges to prove.
Even under the best of circumstances, the Hussein trial could not possibly accomplish all three of these goals simultaneously. Hussein's crimes are so numerous that no trial can produce both a full historical accounting and swift justice. Iraq may be better served by establishing a truth commission to write a comprehensive history of the abuses of the Hussein era. Efforts to manage the trial to promote political stability in Iraq are unlikely to succeed and will only reflect a continuation of the Hussein-era tradition of executive branch manipulation of the courts. Addressing Sunni grievances, protecting minority rights and sharing Iraq's wealth is the way to promote reconciliation.
The best hope for the Hussein trial to be meaningful is for the Iraqi government to accord him full due-process rights and to refrain from further interference and manipulation. If the Iraqi government accepts the constraints of the rule of law, the Hussein trial can teach Iraq the valuable lesson that the state may punish citizens, even one as detested as Hussein, solely on the basis of laws impartially applied, not on the whims or caprice of the ruler.