War crimes trials: procedures or politics?

The war-crimes trial of Saddam Hussein and seven other co-defendants
opened briefly today
(see also
here
), and was adjourned after just 2 hours and 11 minutes of court time. They
are charged with the murder of 143 men and boys in Dujail in 1982, and also
with forced expulsions and illegal imprisonment, in connection (I believe)
with that same incident.

Much of the commentary in the western media has focused on details of the
procedures that the Iraqi Special tribunal (IST) is using as it conducts
these trials, with Human Rights Watch and other rights groups
focusing
on the distinct lack of due-process protections afforded to the defendants,
as well as on other flaws in IST procedures.  The big fear that such
groups express is that the work of the IST will prove to be only “victors’
justice”.

But I would contend that there are different kinds of “victors’ justice”,
and not all of them are bad (though probably, the vast majority of them are.)

The WaPo’s Anne Applebaum seems to share my feelings on this score.  She
has
a piece
in today’s paper in which– as I have done previously– she notes that the
procedures used at the Nuremberg Tribunal in 1945-46 were also, from the
due-process point of view, extremely flawed. And yet, she and I join with
the rest of the present international consensus in judging that all-in-all,
the Nuremberg Trials were very successful indeed.  How can we do this,
despite our judgment of the deeply flawed nature of the procedures used there
(and ideed, also, the extremely biased nature of the Statute of the court
itself)?

I think that Applebaum and I justify our arguments about the over-all success
of Nuremberg in slightly different terms, because we are looking at slightly
different things.

She writes:

Nuremberg was, in retrospect, a huge success, and as the trial
of Saddam Hussein begins today in Baghdad, it is worth remembering why. If
it achieved nothing else, Nuremberg laid out for the German people, and for
the world, the true nature of the Nazi system. Auschwitz survivors and SS
officers presented testimony. Senior Nazis were subjected to cross-examination.
The prosecutors produced documents, newsreels of liberated concentration
camps and films of atrocities made by the Nazis themselves. There were hangings
at the end, as well as acquittals. But it mattered more that the story of
the Third Reich had been told, memorably and eloquently.

Regarding Saddam’s trial, she uses a similar metric of “truth-establishment”:

In the end, it is by the quality of that evidence, and the clarity
with which it is conveyed, that this trial should be judged. The result is
irrelevant: Quite frankly, it doesn’t matter whether Saddam Hussein is drawn
and quartered, exiled to Pyongyang, or left to rot in a Baghdad prison. No
punishment could make up for the thousands he killed, or for the terror he
inflicted on his country.

But if his Sunni countrymen learn what he did to Shiites and Kurds,
if the Shiites and Kurds learn what he did to Sunnis, if Iraqis come to realize
that his system of totalitarian terror damaged them all, and if others in
the Middle East learn that dictatorships can be overthrown, then the trial
will have served its purpose. That, and not an arbitrary standard of international
law, is how the success of this unusual tribunal should be measured.

I agree with Applebaum that the greatest contribution that Nuremberg
made to the consolidation of democratic practice in  Germany was its
establishment of a nearly incontrovertible record of exactly what the Nazi
regime did to Germans and others during its 12 years in power.  But
I think it is also very important to take into account– which she doesn’t–
the time-frame over which this record came to be important to Germans
.  A few years ago, intrigued by this question I started interviewing
a few experts in that period of German history to find out their views of
exactly how it was that the records established at Nuremberg came to play
such a strong, constructive (and, I would hope, lasting) role in the “re-education”
of the German citizenry.  And these experts, who included both Germans
and Americans, were unanimous in noting that the record of Nazi misdeeds
compiled and archived by the Nuremberg court did not become important
to Germans themselves until the early 1960s…

During the eleven-month period from fall 1945 through fall 1946 in
which the Nuremberg Tribunal was operating, the leaders of the US occupation
forces worked hard to do a lot of what would today be called “outreach”,
in order to try to publicize the court’s work widely among the population
of occupied Germany.  This was all part of a broader “re-edication”
campaign that also saw occupation troops taking German civilians from various
towns to the concentration camps nearby, to have them help with the clean-up
there– but also to show them, as incontrovertibly as possible, some of the
horrors that had been going on very close to their homes.

However, most German nationals at that time simply weren’t listening.
 Or perhaps, it would be better to say that they weren’t in a mental
space that made listening possible.  Many of their cities had been pulverized
by two years of Allied bombing; many of their menfolk had been killed or
maimed; families were split up; basic services were missing; food was extremely
scarce; and the hard-pressed economies of the three “western”-occupied zones
were additionally burdened by the arrival of some eight million ethnic-German
refugees who had fled– or very often, been kicked out of– their family
homes further east.  Most people in West Germany were simply too busy
trying to find enough food to eat, enough clothes to keep warm, to spend
a lot of time sitting around reading newspaper accounts of the Nuremberg
trials.

… So it was only in the early 1960s, after the widely publicized
trial of Adolf Eichmann in Jerusalem in 1961, that a new generation of Germans
started to become  intrigued by what had actually happened in their
country under the Nazis, and started looking for answers.  One of the
best and most reliable sources they found at that point was the extensive
archives of the Nuremberg Tribunal.  It was at that point that the existence
of those records came to have a strong “reformative” effect on much of the
culture, educational system, and thinking of the people of West Germany.

By the 1960s, too, the West Germans had succeeded in completely turning
around their economic situation, and they were starting to feel some of the
benefits from their hard-won economic “miracle”…

What does this record from West Germany indicate to us about the prospect
that the current war-crimes court in Iraq can actually end up– victors’ justice
or no– making a constructive contribution to the future of Iraq?

Primarily, I think, it underscores the importance of having a successful
politics of reconstruction inside Iraq, of which any attempt to
organize a war-crimes court is seen as an integral, but actually subordinate,
part.  Nuremberg “worked” successfully in Germany, for Germans, at a
time when they had already substantially recovered from the wounds of war
and occupation and had enough self-confidence to be able to look back critically
at their own past.  Nuremberg “worked” in Germany, for Germans– not
immediately, but 15-20 years later– because there had, in the intervening
period been a successful politics of reconstruction that had been
pursued inside the US-dominated portions of the country because of the wisdom
of President Truman and Secretary of War Henry Stimson in 1945, and had been
sustained by succeeding US administrations. Nuremberg “worked” in Germany,
for Germans, largely because the much stronger US presence in occupied Germany
was able to prevent the Russians, the French, and the British from enacting
the much harsher forms of “victors’ justice” against the Nazis that the leaders
and publics in all three of those other occupying countries would have preferred.
 (And in that context, Nuremberg “worked” in large part because it successfully
chaneled much of the British, French, and Russian desire for vengeance into
the less brutal form of retribution that is enacted in a courtroom.)

What does this tell us about Iraq, and the effectiveness we might expect
from the work of the Special tribunal there? I think it means the prospects
for the IST having a constructive re-educative effect inside Iraq are very
dim indeed.  A “re-education” of former Baath Party supporters on the
scale needed is certainly not going to happen overnight.  It may well
take 15-20 years; and it will certainly be affected by the quality of life
that those millions of individuals enjoy between now and then.

Are Iraq’s rulers, indeed, currently pursuing anything that might
look like a successful politics of reconstruction?  If they are,
then perhaps, over time, the IST will be seen as having played a part in
the moral reconstruction/re-education of the Iraqi people.  If they
aren’t, then the political effects we can expect from the IST– which we
are already seeing in the foot-dragging work of the international courts
for Rwanda and former Yugoslavia– will most likely be to sharpen inter-group
polarizations and mistrust, thus making reconstruction even harder to achieve.

Anne Applebaum was quite right to say that it is the political context
and political effects of the work of the IST that will be all-important,
rather than the detailed niceties of its internal procedures.  But she
was far too optimistic, I think, to judge that this court, operating within
the confused, unresolved, and strife-ridden context of today’s Iraq can win
anything like the same positive effect that– over time– was registered
by the Nuremberg Tribunal.

[Cross-posted on Transitional Justice Forum]