The New York Times
September 26, 2005

Try and Try Again
By GARY J. BASS

Princeton, N.J. – “For these crimes,” wrote Hannah Arendt during the
Nuremberg trials, “no punishment is severe enough. It may well be
essential to hang Göring, but it is totally inadequate.”

Saddam Hussein’s punishment will surely be inadequate too – all the
more so if he is executed too soon.

The Iraqi war crimes tribunal’s first case against Mr. Hussein, which
opens Oct. 19, charges him with the 1982 massacre of at least 143 men
and boys from the village of Dujail. This was meant to be a test case
of manageable scope and strong evidence. Unfortunately, Laith Kubba, a
spokesman for Prime Minister Ibrahim al-Jaafari, says that once the
court has reached a guilty verdict in the Dujail case, the
near-certain sentence of death “should be implemented without further
delay.”

But if Mr. Hussein is executed for the Dujail killings, he will never
be called to account for the larger atrocities on which he was
arraigned in July 2004: killing political rivals, crushing the Shiite
uprising in southern Iraq in 1991, invading Kuwait in 1990, and waging
the genocidal Anfal campaign against the Kurds in 1988, including
gassing Kurdish villagers at Halabja.

It is easy to understand the temptation to get the high-profile trial
over with quickly. The lives of the tribunal’s officials – including
the young chief investigative judge, Raid Juhi, who confronted
Mr. Hussein in a televised courtroom showdown – are at constant risk
from the raging insurgency. And the international tribunal for the
former Yugoslavia, where Slobodan Milosevic has dragged his trial into
its fourth year with his theatrics, furnishes a cautionary example. A
shorter trial would afford less time for Mr. Hussein to make defiant
final speeches to Arab nationalists.

What’s more, the tribunal is a political football. The Dujail trial is
set to start just four days after Iraq’s referendum on its draft
constitution – a time when ethnic rivalries will probably run high –
and not long before the Dec. 15 elections. Saleh al-Mutlak, a former
Baathist who led the Sunni delegation’s rejection of the draft
constitution, has accused the Iraqi government of speeding Mr. Hussein
to trial in order to win election-season political points, presumably
with Shiites and Kurds. Mr. Mutlak menacingly warns that the trial
could touch off more violence.

Nonetheless, the Iraqi tribunal would do well not to rush Mr. Hussein
to the gallows. A hasty execution would shortchange Mr. Hussein’s
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. The alternative is on display in Turkey, where the
collapse of a war crimes tribunal after World War I paved the way for
today’s widespread Turkish nationalist denial of the Armenian
genocide.

In June, Mr. Kubba said that Mr. Hussein could face as many as 500
charges, but that Iraqi prosecutors would pursue only about 12
well-documented counts. Now it may be down to just one. Because Iraq
and the United States have chosen the hard road of courtroom justice,
the war crimes tribunal should see it through. The Dujail case is a
good start but not a good finish.

Gary J. Bass, an associate professor of politics and international
affairs at Princeton, is the author of “Stay the Hand of Vengeance:
The Politics of War Crimes Tribunals.”

Copyright 2005 The New York Times Company