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…
Continue reading “War crimes trials: procedures or politics?”