Unless additional charges are brought against Saddam, his trial, which begins this week, will examine his role in the massacre of more than one hundred people after a failed assassination attempt against him near the town of Najail in 1982. He has not been charged with the massacres of Kurdish civilians in the 1980s, of the Shiites who revolted against his rule after the first Gulf War, and of his political opponents throughout his bloody reign; nor has he been charged with torture and other human rights abuses of his citizens; nor has he been charged with war crimes (including the use of poison gas) during the Iran-Iraq war and the first Gulf War. It’s as though Hitler had been captured at the end of World War II and charged with ordering the massacre of those associated with the failed assassination attempt against him in 1944, but not with ordering the Holocaust.
Gary Bass argues that this is a mistake:
Nonetheless, the Iraqi tribunal would do well not to rush Saddam to the gallows. A hasty execution would shortchange his victims and diminish the benefits of justice. Baathists would be all the more likely to complain about a show trial. Kurds would rightly feel that they were denied their day in court for the Anfal campaign. Shiites in the south would also be deprived of a reckoning.
A thorough series of war crimes trials would not only give the victims more satisfaction but also yield a documentary and testimonial record of the regime’s crimes. After Nuremberg, the American chief prosecutor estimated that he had assembled a paper trail of more than five million pages. A comparably intensive Iraqi process would help drive home to former Baathists and some Arab nationalists what was done in their names.
To a practicing lawyer, these arguments might sound odd. It is a standard feature of domestic criminal trials that defendants are not prosecuted for all the crimes that they commit. A serial murderer, for example, is likely to be prosecuted for just a few of his murders; not all of them. Although all of a defendant’s victims (or families) understandably seek satisfaction for the crimes committed against them, the criminal justice system is too busy and expensive to serve this function. Its purpose instead is to deter and punish, at least cost, and if you can imprison a defendant for life, or execute him, without trying him for all his crimes, that is what you do. Inevitably, the prosecutor focuses on the crimes that are most serious and easiest to prove.
Saddam’s trial is different from an ordinary criminal trial, but the same considerations apply. The only important thing to do is to ensure that he is punished. His victims can take comfort in the fact that he is punished; they have no right to demand that historical research be done through criminal litigation. As was discovered at Nuremberg, trials are a poor way to establish history, because trials have their own logic. Prosecutors care about proof, not about truth per se; and judges care about process, order, and administration. At Nuremberg the prosecutors relied on documentary evidence because Nazi archives had been captured by the allies, and testimonial evidence was likely to be messy and unreliable. But not all the crimes of the defendants were documented, and not all documents were available at the time of trial. What came out of Nuremberg was that portion of the historical record that supported the charges. A true picture of the Nazi regime had to await decades of research.
Bass does not just want to create a historical record: he also wants to drive home the record to Baathists and Arab nationalists. This is a separate point about the possible propaganda (or, in more polite terms, educational) value of Saddam’s trial. I will address this possibility in a later post.