Global Policy Forum

By George Packer

In different circumstances, the image of Saddam Hussein and seven other Baath Party officials sitting inside the defendants' corrals of a Baghdad courtroom would have been a simple tableau of justice. On October 19th, they heard charges and entered not-guilty pleas in the killings of more than a hundred and forty men and boys in the Shiite town of Dujail in 1982. Everything about the scene suggested that the modern history of the Middle East is being rewritten in Iraq. The ex-President was not a bullet-riddled corpse propped up before television cameras, like one of his predecessors (Abdul Karim Qasim, in 1963), or a collection of body parts dragged through the streets of Baghdad, like another (Nuri es-Said, in 1958). Saddam was alive, in good health, his hair dyed black, his suit respectable; and he was permitted to address the court with the vainglorious defiance of the President he still believes himself to be. At his first court appearance, in the summer of 2004, Saddam looked confused and cowed, as if he were expecting the summary justice that his own revolutionary courts once handed down to tens of thousands of Iraqis. By last week, he seemed to have realized that the nature of justice had changed in Iraq, along with power, and a shadow of his old swagger was back.

The chief judge, the graying and even-tempered Rizgar Mohamed Amin, is a Kurd. He belongs to an ethnic group that has been barely tolerated in the Arab world when it hasn't been actively persecuted; but, sitting in judgment over a dictator responsible for the deaths of almost two hundred thousand Kurds, Judge Amin displayed respect and firmness in exactly the right proportion. Between Saddam's delusional claims of Arab and Islamic glory and Amin's steady focus on the particulars of the case, the difference between a reign of terror and the rule of law was made vivid. Outside the courtroom, around the country, life came virtually to a halt as Iraqis watched the televised proceedings and were free to debate their meaning.

But other aspects of the trial make its difficult circumstances painfully clear. Reporters and others in attendance had to pass through multiple levels of security inspections, including three-hundred-and-sixty-degree body scans, to get inside. The courtroom itself, in the old Baath Party headquarters, is a fortified chamber inside the fortified Green Zone, and setting up the trial has cost American, not Iraqi, taxpayers some hundred and thirty million dollars. The five judges in the case were trained largely by American experts; the Special Tribunal that is administering the trials of former Baathists was established under American occupation, by American officials, with American money. The identities of the judges, apart from that of Amin, have been kept secret for their own protection, and they work under heavy guard. Nor are the defendants' lawyers immune from Iraq's epidemic violence; one, Saadoun Sughaiyer al-Janabi, was dragged from his law offices the day after his court appearance and later found dead, shot in the head.

Iraqis are trying their former rulers in the middle of an insurgency that is sliding toward civil war. This is what makes the trial in Baghdad so different from its predecessors in Nuremberg, Arusha, and The Hague. The defendants haven't been politically or militarily defeated; thousands of Iraqis are continuing not just to demonstrate in favor of the old regime but to kill for it. The state conducting the trial is fragile, divided, and in danger of failing. Justice, in theory sterilized and pure, in fact can never be extracted from its context, especially in the trial of a political criminal on the world-historical scale of Saddam. The case against him is going to become a part of the case of Iraq—the question of what kind of country Iraq after Saddam will be. The public's reaction to the trial's first day showed how split Iraq has become along sectarian lines. In interviews, a number of Shia and Kurds expressed impatience that Saddam is even alive, favoring execution over a protracted trial. To many of them, Saddam's courtroom defiance was deeply disturbing, and even terrifying. Many Sunnis, by contrast, hailed Saddam as their leader, praised his brash manner in court, and echoed his argument that the whole affair is illegitimate, a sham perpetrated by the American occupiers. As the trial goes on, it will be skillfully manipulated by the lead defendant into an indictment of the indicters, and the divisions in the country will almost certainly grow deeper.

The trial of Saddam has become part of the larger tragedy of Iraq since his fall from power. It has divided the American and Iraqi governments from much of the rest of the world; most European countries and the United Nations have not lent support, because of the appearance of American control and the fact that the defendants could be sentenced to death. It has elicited criticism from human-rights organizations that should have been helping to collect new evidence of Saddam's crimes. It has brought out the worst in Iraq's current leaders, who have opportunistically accelerated the timetable and meddled in the selection of judges. However fair the proceedings inside that fortified courtroom—and the trial's first day suggested that Saddam will not be railroaded to the gallows—they will also have to be judged by their effect on the violent country immediately outside.

International tribunals far removed from the scenes of the crimes have been imperfect instruments of justice—ask Rwandans or Bosnians. The trial of Saddam ought to be presided over by Iraqis, in Baghdad, to achieve the larger purpose of showing justice being done in a country that has known only arbitrary power. But the pressure from Iraqi and American officials to rush ahead and try Saddam now—before the elections, in December, have any chance to create a truly representative government that can begin to forge a national consensus—almost insures that the process will set Iraqis against one another. The trial's most important lessons—accountability, the rule of law, historical understanding, and reconciliation—will need another generation.