Essay #24: What is the relationship between the Saddam Trial and the level of violence in Iraq?

An Essay by Mark Drumbl

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 210 (2006).

The Washington Post and other news outlets reported this morning that, over the past two days, 11 U.S. troops and at least 182 civilians have been killed in Iraq. The violence springs from many sources and is influenced by many factors. What I have not (yet) seen on this blog is discussion of the relationship, if any, between prosecutions at the Iraqi High Criminal Court and the security situation in general. Bloggers have been concerned, rightfully, with how the prosecution triggers security concerns to court personnel (i.e. with regard to the murders of defense lawyers/personnel and death threats to others) and whether the process can continue when it is a site for violence. But I am worried that the prosecution (even though still just in a preliminary stage) itself may exacerbate insecurity at a cost that might transcend, at least in the short term, the benefits of justice.

The choice to prosecute Saddam and to see his trial as promoting justice and establishing a historical record was made at a time of ex ante optimism about the ability to maintain security in Iraq. Although peace and justice aren't viewed as incommensurable by international lawyers such as ourselves, what might the purpose be of proceeding with the Saddam trial amid such great instability (and it is unclear to me whether relocating internationally would help)? To be sure, given where we are, just incapacitating Saddam indefinitely also may fracture security.

A Response by Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 210 (2006).

Drawing on the historic precedent of the post WWII Nuremberg trial of the Nazi leaders, many advocates of the Saddam Hussein trial hoped that the televised proceedings would establish a historic record of abuses that would pierce the propaganda and discredit the former regime. And this in turn would suppress popular support for the insurgency within the Suni Iraqi community. But a closer examination of the Nuremberg experience indicates that such high expectations for the educational role of the Saddam Hussein trial are misplaced.

Contrary to Chief Prosecutor Robert Jackson’s claim that the Nuremberg Tribunal’s greatest success was that it “established incredible events with credible evidence,” recently de-classified opinion polls conducted by the U.S. Department of State from 1946 through 1958 indicated that over 85 percent of West Germans considered the Nuremberg proceedings to be nothing but a show trial, representing victor’s justice rather than real justice, and believed that the Nazi leaders were not really guilty of the crimes for which they had been convicted. See Peter Maguire, LAW AND WAR: AN AMERICAN STORY 241 (2000).

Two generations later, the German people largely have a favorable view of the Nuremberg Tribunal and are overwhelmingly convinced of the guilt of the Nazi leadership. This might simply suggest that war crimes trials take twenty years or more to influence target populations. But it is more likely that German popular opinion was influenced by: (1) the aggressive “reorientation” program which the United States imposed on Germany in the decade after the end of the second world war; (2) the fact that government-required history books in use in German elementary and secondary schools for the past sixty years have portrayed the Nuremberg Tribunal positively and the Nazi leaders negatively; and (3) the fact that Germany has aggressively enforced its law criminalizing denial of the holocaust.

In any event, the lesson of Nuremberg is that in the short run, those who support Saddam Hussein (including most Suni Iraqis) are likely to view the Saddam trial as illegitimate and will be convinced of his innocence no matter the testimony and evidence that is elicited during the proceedings. Those that oppose him (including most Shi’ites and Kurds), are likely to view the Tribunal as confirming what they already believe. (For a more recent example of this phenomenon in the United States, see opinion polls about black and white perceptions of the OJ Simpson trial). Thus, as Mark Drumbl observes above, in the short-term the Saddam trial may well have more of a divisive than peace-engendering impact in Iraq.

Opinion polls taken during the ongoing war crimes trial of Slobodan Milosevic in The Hague, on the other hand, may yet give cause to be hopeful about the role of the Saddam Trial in drying up support for the Iraqi insurgency. In the early months of the Slobodan Milosevic trial, the popularity of the former Serb leader among Serbs steadily rose, as he used his televised trial to repeatedly attack the 1999 NATO intervention that destroyed the Serb infrastructure and the UN sanctions that wrecked the Serb economy. But support for Milosevic began to erode midway through the trial when the Prosecution presented evidence of Milosevic’s involvement in the assassination of popular Serb politicians such as Ivan Stambolic and Zoran Djindjic, and popular support for the Milosevic in Serbia plummeted when the Prosecution showed a particularly horrific video of the Srebrenica massacre, which was subsequently played repeatedly on Serb television. Anecdotal accounts of Suni Iraqis watching the Saddam trial indicate that the testimony of victims of the Ba’ath party abuses may be having a similar effect among the Suni population.

Posted @ 9:13 AM | Experts Debate the Issues: The Dujail Trial