Monday, May 15, 2006

Crimes Against Humanity, Then and Now

One of the most interesting features of Saddam Hussein’s ongoing trial, which concerns an orchestrated massacre of Shiites after an attempted assassination against him, is the brazenness of his and his co-defendants’ conduct. Hardly a day seems to pass in court without angry outbursts questioning the legitimacy of the judge, the trial, and the very state underpinning the process as American stooges or some such. Occasionally defendants have stormed out of the courtroom.

The Nuremberg trials after World War II (and the lesser-known Tokyo trials) were said to be an attempt to make the Axis powers answerable to law. Making national leaders answerable to the law for disrupting global peace, presumably, was to be another (perhaps the most important) rampart in civilization’s defenses against barbarism. The chief prosecutor, in fact, was the sitting U.S. Supreme Court Justice Robert Jackson, and it was said to be the Americans who pressed for a formal trial, while the other three Allied Powers were in favor of quick executions. And it is striking how legalistic (in the sense of resembling normal legal processes, not in the sense of involving legal technicalities) it all was. The transcript of Justice Jackson's cross-examination of Herman Goering would not have looked out of place in any American courtroom. In an interview with the late tribunal prosecutor Dexter Sprechel, he describes a perfectly civil exchange with Goering – a key member of one of the most monstrous regimes of humanity's bloodiest century – after Sprechel replaced the defendant's broken pencil.

What is the difference? Most obviously, the nature of the way in which the two sets of defendants came to trial. The Nuremberg trials occurred only after the Nazi military had first stormed across Europe. They were only turned back at the cost of millions of lives, and ultimately after an extraordinary saturation bombing campaign by the Allies in Germany and a sweep of mechanized armies across Europe. This campaign was duplicated in the Far East – there was at least one night of conventional bombing of Tokyo in which more people died than did in the atomic bombing of Hiroshima, and this went on night after night for months before the decision to go nuclear was taken. In the Eastern front, too, the barbarism of the Soviet advance, at some points undoubtedly matching war crime for war crime the march of the Nazis in the other direction several years before, left the Nazis with the feeling of having been utterly crushed. After having been astride the world after the conquest of France and the deep advance into Soviet territory, the Germans were in other words truly beaten; almost every city in Germany was a disaster area, threatened by cholera and famine and with the fear of brutality by huge numbers of occupation soldiers. The idea of resistance must at that time have seemed ludicrous. Several Japanese defendants, who had been part of a cruel, ruthless war machine until very recently, had nervous breakdowns during the trial.

The allied military campaign in Iraq was much different, with the U.S. military taking significant measures using its high-technology weaponry to minimize infrastructure damage and civilian casualties. Combined with the quick rise of Iraqi resistance and the fairly slim size of the occupation forces, Saddam Hussein may well stride into court every day feeling like he has yet to be actually vanquished. Since totalitarian dictators are not known for being in close touch with reality, this resistance may allow him the indulgence of the idea that his people will yet rise up and overthrow the occupiers.

And this suggests a second difference, the presence of live television broadcasts. The Nuremberg trials were recorded, but not broadcast live. The Hussein trial is telecast in Iraq, and this gives Hussein a chance to grandstand. In becoming the Iraqi equivalent of Judge Ito, the Iraqi jurists presiding over the trial have allowed the law to be corroded as a repository of society’s highest values. The more the trial becomes theater, the less it becomes either useful as a precedent for deterring other potential mass murderers or something that inspires confidence in Iraqis.

But the final factor concerns the whole notion of such trials. They clearly perform a valuable role in establishing an international record, and the notion that no one, not even the biggest of Big Men, is above the law. But the legitimacy of such trials has always been vulnerable to the charge that they are simply victors’ justice. As far back as the Tokyo trials the sole dissenting opinion, filed by Radhabinod Pal of India (then of course a British colony), argued that the whole trial was illegitimate. Foreshadowing our relativist age, he contended that Euro-American powers had no business judging non-European peoples while still in possession of vast colonial powers. When I was last there in the mid-1990s that opinion was still prominently displayed at the Yasukuni shrine in Tokyo, where numerous war criminals were buried. The implication – that the Greater East Asia Co-Prosperity Sphere was in fact a moral enterprise – was obvious.

So too the ease with which Slobodan Milosevic was able to turn his trial in The Hague into a years-long circus by on the one hand refusing to accept its legitimacy and on the other insisting on his right to defend himself made a mockery of the whole process. No doubt Saddam Hussein and his fleet of lawyers watched and learned from the Milosevic trial. Ultimately, the notion that an entity such as the new International Criminal Court, created to sit in judgment of national and military leaders and out of bargaining between nations living in a world where they have no friends, only interests, could have the same legitimacy as, say, a state district court sitting in judgment of accused burglars is a fantasy. Despite their learning curve, on painfully obvious display in the Baghdad court where the trial goes on, it is probably for the best that Saddam Hussein’s trial is a purely Iraqi venture. Only Iraqis appreciate the monstrosity of what was done, and only they in all their legal imperfections can hope to render anything like justice.


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