Saddam’s trial: precedents from Nuremberg

So. Thursday, Saddam will be arraigned, which should mean that we hear what the charges against him are. At that point he will join two other men who were once powerful and extremely abusive national leaders but who are now on trial for their misdeeds: Slobodan Milosevic (who will begin the Defense phase of his own case next Monday), and Théoneste Bagosora, the alleged military mastermind of Rwanda’s 1994 genocide.
The circumstances of Saddam’s trial will be very different from the public, UN-organized proceedings against Slobo and Bagosora. According to the AP, Saddam’s initial proceedings,

are taking place under a blanket of secrecy because of fears that insurgents, many of them Saddam supporters, might exact revenge on those taking part.
U.S. and Iraqi officials refused to say where Thursday’s hearing would take place or release the name of the presiding judge. No pictures will be allowed of any of the Iraqi participants – except for the defendants – to protect them from attack. Only a few journalists will be allowed to attend.

But evidently, the threats are not all coming from one side:

Issam Ghazawi, a member of Saddam’s defense team, said he received threats in a telephone call Wednesday from someone who claimed to be a minister of justice who promised that anyone who tried to defend Saddam would be “chopped to pieces.”

It does sound like chaotic circumstances in which to try to hold a proper trial. Not quite like the Nuremberg Tribunal of 1945-46, though several aspects of the two trial proceedings are the same.
Primarily, at the political level, we are talking about a former leader who committed many grave rights abuses but who is beaten on the battlefield and then put on trial by the military victors–or, in this case, forces closely associated with the victors.
In the case of Slobo and Bagosora, by contrast, the political body that organized their respective tribunals is the UN, which has tried to do so in a very “fair”, due-process-y manner. (And indeed, ICTY, the former-Yugoslavia tribunal, has tried people from all of the major population groups involved in the various Balkan wars, not just the ethnic Serbs.)
At Nuremberg, of course, they didn’t “get” Hitler or Goebbels, both whom presumably shot themselves as the Allies closed in. The highest ranking Nazi they got was Goering. The Tribunal sentenced him to death–but he cheated the hangman by killing himself the night before execution with a cyanide pill.
Anyway, what I want to blog about a bit are some of the general lessons for the Saddam trial from those three earlier tribunals–but particularly perhaps, the “forgotten” lessons of Nuremberg.

To me, one of the most important lessons of the Nuremberg Tribunal is the key importance in post-war, post-atrocity situations of due speed in any judicial process. Not many people these days recall that, from a due-process point of view, the Nuremberg Tribunal was extremely flawed. The Prosecution people had helped to design the whole process. The prosecutors and judges rubbed shoulders a lot during the proceedings. The defense attorneys were starved of resources, and at a great setback in the largely common-law proceedings of the trial. Huge chunks of documentary evidence were simply entered into the record with no systematic attempt to establish their provenance There was no meaningful right of appeal. Etc., etc.
Well of course, what could you expect? It was, after all, an International Military Tribunal there in Nuremberg, not a civilian criminal court. But even by the standards of military courts, the process was pretty bad.
But one of the key things the people who organized the proceeding gained from all those due-process workarounds was speed.
The Tribunal started its work on November 20, 1945, when Britain’s Sir Geoffrey Lawrence opened the first of 403 public sessions. As the historian Bradley Smith–my favorite historian of the whole episode– wrote in the Preface to his book Reaching Judgment at Nuremberg,

By the time Sir Geoffrey closed the last session, on October 1, 1946, one hundred witnesses had been heard, thousands of documents had been submitted, and affidavits bearing hundreds of thousands of signatures had been brought before the Tribunal. The ten-month trial saw three men acquitted, seven men sentenced to prison, and twelve men sentenced to death by hanging, including one who had been tried in absentia… But the end it was clear that, at least for our epoch, the city of Nuremberg would primarily be associated not with Wagner’s opera Die Meistersinger von Nürnberg, nor with Hitler’s ,assive Nazi party rallies, but with what all of us took to be the trial of war criminals.

Ten months. Then, on October 15, 1946, fourteen days after the sentences had been read, the men slated for execution were hanged. The four Allied powers continued with their work of–in very different ways in ‘east’ and ‘west’ Germany–reconstructing and rehabilitating a working society and polity.
Actually, the Nuremberg trials were one way of helping that rehabilitation effort. They focused people’s attention on the 22 defendants there, while hundreds of thousands of lower-level Nazis were put back to work… Over the years ahead, people who had been members of the three Nazi-era organizations that had been declared “criminal” at Nuremberg were slowly vetted, and many were removed from their jobs through administrative mans. A few further high-level trials were held by the individual occupying powers. But the main “story” of what happened after World War 2–in strong contrast to what happened after World War 1–was a story of the rehabilitation of Germany, not the mass punishment of its people… And the Nuremberg Tribunal fit right into that.
We could perhaps have seen a trial of Saddam and his topmost henchmen fit into exactly that same mold–if we’d had an occupying power in Iraq that had one-thousandth of the wisdom shown by Secretary of War Henry Stimson back in 1945.
(When I discussed this with Brad Smith a couple of years ago, he pointed out that Stimson and all the folks of his generation had really learned a lot from what had gone wrong with the “punitive” peace the US and its Allies had tried to impose on Germany in 1919… which had only been 26 years prior to 1945. Primarily, the mechanisms of collective punishment imposed on the Germans after 1919 helped create a climate in which Adolph Hitler could be democratically elected to power… )
Well, we haven’t had a Secretary of “Defense” this time around with anything like the wisdom and strategic vision of Stimson. To say the least…
There are some other aspects of the Nuremberg Trial that are worth remembering in the Iraqi context, too. One is the precise charge sheet that was brought against the defendants there. Genocide had not been declared a criminal undertaking in those days–heck, the word wasn’t even invented till 1946 or 1947! But the charges the Nuremberg prosecutors did bring were grouped according to the tribunal’s Charter into four types:

1. War crimes.
2. Crimes against humanity.
3. Crimes against peace.
4. Conspiracy (to engage in any of the above).

Of those four types of crime, only war crimes had any commonly understood definition at the time. Indeed, the Hague Conventions of 1907 had more or less decsribed them, as had the national military codes of the US and most European nations by 1945.
“War crimes” however, as defined then and now, generally relate to acts undertaken in war against people who of a different citizenship than the perpetrator. War crimes can cover the use of banned weapons against an opposing army or society– like chemical weapons, in Saddam’s case, when he used them against the Iranians in the 1980s. War crimes also covers banned actions taken against the persons or interests of noncombatants from the “other side” of the battle-lines– whether those noncombatants are civilians of the opposing country or are members of the armed forces who are hors de combat either by being wounded, or by having been taken as prisoners-of-war.
18 of the 22 defendants at Nuremberg were charged on this count, and 16 of them were found guilty of it.

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The architects of Nuremberg more or less made up the other three categories in the summer of 1945. (Smith also wrote a great book about that work, too. It’s called The Road to Nuremberg.)
They invented crimes against humanity to cover actions taken against one’s own citizens that–if taken against citizens of another country–would count as war crimes. The goal there was to criminalize what the Nazis did against the Jews, Roma, etc., who were German citizens, rather than those who were citizens of countries under German military occupation.
Since 1945, the definition of “crimes against humanity” has changed quite a bit. For example, check out the definition of it provided in the Rome Statute for the International criminal Court, here. But the basic idea remains. This covers atrocities committed by governmental authorities against people who are their own citizens, not foreigners. Thus, many of the actions that Saddam and his henchmen took against Iraq’s own citizens–including the use of CW against Iraqi Kurds– would fall into this category.
Again, 18 of the 22 defendants at Nuremberg were charged on this count, and 16 were found guilty of it.
Crimes against the peace, as used at Nuremberg, harked back to earlier, Wilsonian dreams of “outlawing” war, or at least, “unjust” wars. In the end, 16 defendants at Nuremberg were charged with it, and 12 were found guilty.
Interestingly, this category of crimes was not included on the docket sheet for either the ad-hoc tribunal for former Yugoslavia (ICTY) or its sister-court for Rwanda (ICTR). But it did subsequently surface in a shadowy form in the 1998 Rome Statute, in the form of “the crime of aggression”. However, the “crime” was evidently one that the negotiators at Rome found very hard to reach agreement on. As the Statute says, “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime.” That certainly hasn’t happened yet!
But for Saddam’s trial, “crimes against the peace” seems to me to be a great description of the actions he took in starting (1) the 1980-88 war against Ira, and (2) the 1990-91 invasion of Kuwait. In the former war, an estimated million lives and hundreds of billions of dollars-worth of fixed-capital goods were destroyed. If any group in the world suffered from Saddam as much as, or perhaps even more than, his own people, it was the people of Iran.
Here’s Nuremberg’s definition of “Crimes against Peace”:

namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

Okay, and so we come to conspiracy (I’ll write a little about genocide, later.)
The way the August 1945 Charter that established the Nuremberg court used the conspiracy issue was pretty clever. It owed a lot to Stimson’s own background as a federal prosecutor in the 1920s, when he’d broken up a sugar cartel by using charges of “conspiracy”… It was not a legal concept that was used or understood at all in such a context by the other four powers involved in running the Nuremberg court, but Stimson persuaded them it was good idea anyway.
Basically, the idea was this: People who were found guilty of one or more of the other three crimes at the court might, if they were members of a Nazi-related organization at the time of the crime, also be found guilty of having “conspired” to commit that crime. And then, any organization through which that conspiring had occurred could also be found “guilty” of involvement in the crime… (Article 9)
Then, as noted above, anyone else who was a member of that organization at that time could be subjected to administrative–or even in some cases criminal–sanctions. That was the case for the SS, for the gestapo-SD, and the “leadership circle of the Nazi Party, I think. But notably notfor the whole of the Nazi Party.
It may or may not be a good idea for some specific organs of the Baath Party in Iraq to be declared “criminal” through the upcoming proceeding. It also may not make that much difference. Who knows? You could also say that if the process of post-war rebuilding in Iraq were as well-planned and orderly as that in Germany, then criminalizing some parts of the Baath Party could be a help in the subsequent program of de-Baathifying important parts of the country’s leadership…
But it ain’t.
And so, to genocide.
Genocide, as you probably all know, is a special class of crime that consists of perpetrating certain other kinds of atrocities–indeed, the kinds that count as crimes against humanity, plus som other things–but doing so with an intent to destroy in whole or in part a national, ethnical, racial or religious group. It is that extra dose of inentionality that is important, for genocide. You have to intend not just to kill a large number of people, but to kill them in order to destroy in whole or in part one of the specified kinds of groups.
Well, Saddam’s actions against either the Iraqi Kurds or the Iraqi Shi-ites could well count as genocide.
So we could come to a charge-sheet against him and his henchfolk that would look very like that at Nuremberg–but with the addition of genocide.
I actually have found it extraordinarily hard to find any news on the plans of Junior Chalabi-man regarding the kinds of indictments they’ll bring in Baghdad. Maybe this will all be clearer within the next 24 hours… Anyway, I thought the above kind of background might be interesting and useful as we watch what lies ahead.