Category: War crimes etc

The NYT mag has two (or perhaps more) good pieces in it today. One is this consideration by Peter Landesman of some of the trials of trying Saddam Hussein.
The piece reveals that Salem Chalabi, the INC-appointed head of the “Iraqi Special tribunal” is not completely stupid. (What it does not reveal are the strong pro-Likud inclinations of Marc Zell, whom Landesman mentions. Zell is the Israeli settler who was SC’s partner in the commercial-law company the two of them set up in Baghdad immediately after the start of the US occupation.)
Anyway, not completely stupid:

”Iraqis have their own goals for this tribunal, not that it brings justice but that it punishes people,” said Salem Chalabi, the Iraqi exile, nephew of Ahmad Chalabi and general director of the Iraqi Special Tribunal since April. ”I’m treading a thin line between what Iraqis want, which is a quick process to judge Saddam guilty and just kill him, and what the international community desires, which is due process, a fair trial. All this will end up being thrown aside if you let Iraqis take over. They may just want to go ahead and create a new kind of process and just kill everybody, which is a realistic alternative.” He added, ”A lot can go wrong.”

The piece also reveals that US investigators and prosecutions specialists continue to do much of the work of preparing Saddam’s indictment, even after Saddam’s largely nominal “handover” to the “legal custody” (but not the physical custody) of new Iraqi quasi-government.
Landesman quotes Zuhair Almaliky, the chief investigative judge of Iraq’s central criminal court, as saying: ”This tribunal is not ours; it is somebody who came from abroad who created a court for themselves… ‘Chalabi selected the judges according to his political opinions.”
He quotes M. Cherif Bassiouni, the former chairman of a United Nations commission to investigate war crimes in the former Yugoslavia, as saying:

Continue reading “The trials of trying Saddam, contd.”

Meanwhile, in the ICTY branch of the venture of international “justice”, the Serbs’ wily and venal former President, Slobodan Milosevic, has been declared physically not “fit” to stand trial. (He has heart problems.)
This concept of the necessity that a defendant be “fit to stand trial” is an intriguing but little-noted aspect of western criminal procedure. It is not just a byway of medico-legal arcana, but is central to the whole theory of the criminal trial and punishment within the western legal system. (Actually, I’m not sure how it works within a civil-law system, and would love to be elucidated. I’m more familiar with the philosophical underpinnings of common-law systems.)
My favorite punishment guru, the Scottish philosopher R.A. (Tony) Duff, has a whole chapter in his 1986 book Trials and Punishments that explores the theories of fitness to stand trial, fitness to be sentenced, and–this is a particuarly interesting one–“fitness to be executed”. I don’t, however, have that book to hand. All I have is his 2001 book, Punishment, Communication, and Community.
Here, on p.80, he writes:

The criminal law of a liberal polity, and the criminal process of trial and conviction to which offenders are subjected, are communicative enterprises that address the citizens, as rational moral agents, in the normative language of the community’s values… It seeks not just (as might a soveriegn) their obedience to its demands, but their understanding and acceptance of what is required of them as citizens… ”

All fine and interesting stuff. And it just underlines even further the degree to which the creation of ICTY (and ICTR) were acts of amazing boldness, in that they asserted, merely by Security Council fiat, that the whole world does indeed constitute a single such normative community, within which Judge Patrick Robinson and the two other red-robed judges in the courtroom could address Milosevic or anyone else they cared to address as fellow-citizens, bound by the same normative code.
Ah would that this were so. But assertion of such a fact does, I think, require a degree of consent from those who are–presto! just like that! by fiat of the Security Council!–to be included within the bounds of such a community.
Slobo has notably never given his consent…

Continue reading “Meanwhile, in The Hague…”

A notable piece by freelancer Vivenne Walt led the WaPo‘s “Outlook section yesterday. In it, Walt made the interesting observation that–despite what many news accounts in the West would have us believe–Iraqis were not all glued to their television sets, eagerly following Saddam’s court hearing on Thursday.
Walt gives us many examples of this–I’ll come back to some of these, later. But her own opinion, expressed fairly well in the piece, is that the seeming reluctance of Iraqis to examine all the details of the atrocities of their recent past is a bad thing. Hence the title of her piece: “Not better forgotten”.
She asks,

What, after all, would German teenagers know these days about the Holocaust, if the gas ovens were not preserved and museums not built?”

I can understand her point. But from all the work that I’ve been doing on how societies can develop effective policies that enable them to escape from iterations of past atrocious violence, I would characterize her view of what “needs” to be done in the immediate aftermath of atrocities as a very “western” point of view.
And even in Germany, remember, it was not in the immediate post-Hitler years that Holocaust “remembrance” movement started, along with the whole series of explorations that Germans undertook regarding their own community and family members’ roles during the Hitler years. All that came much, much later than 1945. At the time, in 1945-46, in the immediate aftermath of the overthrow of Hitlerism, most of the German people were really not at all in the right “place” to start aggressively exploring their own society’s role in supporting the Nazis.
The Allied occupation forces in Germany did what they could, in their various ways, to “educate” or perhaps “re-educate” the Germans about the ghastliness of the Nazis’ deeds. Civilian work crews from various towns were forcibly taken out to nearby concentration/extermination camps to help in the cleanup, so that they could see firsthand what had been happening there. The Allies tried to disseminate the “latest news” of what was happening at the Nuremberg trials throughout Germany, in German, as speedily and effectively as possible. But by and large, most Germans–with some notable exceptions like Karl Jaspers (see this post from yesterday) really did not want to hear about it.
They had other concerns…

Continue reading “After atrocities: to seek remembrance or forgetting?”

The NYT‘s John F. Burns is a seasoned, very experienced foreign correspondent. I was just amazed, though, that in the piece he had in today’s “Week in review” section, in which he reflected on what he had witnessed directly during Saddam’s short judicial appearance Thursday, he never made a single explicit reference to the idea of the “banality of evil”.
It was the philosopher Karl Jaspers who first made the observation–this was at the time of the Nuremberg Trials–that a court procedure should indeed seek to banalize evil. In October 1946, he wrote in a letter to his former student Hannah Arendt:

It seems to me that we have to see these things in their total banality, in their prosaic triviality, because that’s what really characterizes them… I regard any hint of myth and legend with horror, and everything unspecific is just such a hint.

(Arendt later picked up on that observation and used “the banality of evil” as the subtitle to her 1963 classic, “Eichmann in Jerusalem”.)
Here was John Burns, in the lead to today’s piece:

It was only in the courtroom, at the American military base, that their physical insignificance, their sheer unremitting ordinariness, became so plain.
On television last Thursday, the images of the 12 former Iraqi leaders conveyed an altogether bigger impression, perhaps because the lens tightened until their faces filled the screen. But to a reporter sitting 25 feet away, for the five hours it took to complete preliminary hearings against Saddam Hussein and 11 others who terrorized Iraq, they seemed to have shrunk, pressing home the question: How could these utterly unremarkable men, forgettable in any other context, have so tyrannized their 25 million countrymen that they remained unchallenged for 35 years?

Interesting question…

Continue reading “Saddam: the ‘banality of evil’ revisited”

Alert users who use IE or AOL browsers have told me that the way our archived pages here on JWN have been redesigned, they couldn’t scroll down to the bottom of the post I put here last night. It was a long post. So with the aim that all of you could read the whole post, I’m re-posting the bottom half of that post in the ‘jump’ portion here.
Maybe it would make sense to have one Comments board, though. So if you could go back and add your comments to the board on the previous post, that should work??
Of course, if you are able to read JWN in Netscape, Firefox, etc., you’d be just fine.
Meantime, my technical person will work on correcting the underlying prob as soon as he can. If any of you has a great fix for this, could you email me? Thanks!

Continue reading “Saddam’s trial– Part 2”

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.

Continue reading “Saddam’s trial: precedents from Nuremberg”

I admit I’m really enjoying seeing this whole war-crimes prosecution unfolding regarding the Abu Ghraib guards.
As I predicted, the first bunch of indictees there who are actually (unlike Sivits) contesting their cases, are building a defense of “I was following orders”. Quite rightly, the Nuremberg Principles spell out that–in any situation where, as in the case of the Abu Ghraib guards, the individuals concerned have the possibility of exercizing moral choice— the “following orders” claim cannot provide a complete defense. But it can still, certainly, be a relavant factor in any trial of a person lower down the chain of command…
And along the way there, we’ll get more and more and more information about just how high up the chain of command the orders and directives encouraging those cruel, inhuman, and degrading treatments came from.
This could all last for months– especially if further indictments, further and further up the chain of command, get handed out. As they certainly should. Given what we already know, from the leaked memos, from the record of Geoffrey Miller being transferred from Gitmo to Abu Ghraib, etc., etc., this whole detainee-abuse issue is going to be bubbling and rattling away there on a front- or medium burner, news-wise, right through next November 2.
Excellent.
I’ve just been reading through the WaPo‘s piece on the bundle of documents that the the White House, Justice Dept etc released today on detainee-treatment issues…

Continue reading “How Hiiiiiigh can you go?”

You’ve probably read about David Passaro, the 38-year-old former contract employee for the CIA in Afghanistan who was charged Thursday with assaulting a prisoner during three days of interrogation there and the prisoner then died…
Have you asked yourself why David Passaro, of all the possible number of people involved in just such incidents in Afghanistan–where the number of deaths under interrogation goes into, I believe, at least the double digits–gets indicted?
Today, an excellently researched and reported story in the WaPo by Susan Schmidt and Dana Priest gives one possible answer.
You see, the person killed in that incident was a man called Abdul Wali who last June 21 voluntarily gave himself up for questioning at the CIA/Special Forces base at Asadabad–and he had been accompanied to the base by the Hyder Akbar, the 18-year-old, US-eduacted son of a nearby, US-installed provincial governor, Sayed Fazl Akbar.
Schmidt and Priest explain further that:

Portions of a tape-recorded diary that Hyder Akbar kept during a visit with his father were played Dec. 12 on National Public Radio.
Sayed Fazl Akbar, speaking into his son’s tape recorder, said he asked the Americans to hold off using military force to capture Wali, who he said “had been on the Americans’ and the coalition force’s most-wanted list for cooperating with terrorists or being a terrorist.” Wali was deeply fearful of turning himself in to the Americans, said the elder Akbar, so Akbar sent his son to go with him “as a sign of trust.”
Said Hyder Akbar: “So I took him to the Americans. And, like, they’re asking him where he was 14 days ago on the night of the three rockets. And this guy, like, don’t have calendars, you know? . . . I just put my hand on his shoulder and I let him know: ‘Just say the truth. Nothing is going to happen if you just say the truth.’ And he was absolutely petrified, and he could barely whisper the okay.”
Three days later, Hyder Akbar and his father returned to Asadabad to check on Wali. A translator named Steve and another American named Dave sat down with them, according to Hyder Akbar, and said, “Unfortunately, Abdul Wali passed away.” Hyder Akbar said: “My jaw dropped. It’s like ‘Oh, my God.’ . . .

Okay, I just went to the NPR website and dropped $4.95 to download the text of the segment of ‘Morning Edition’ that featured “Hyder Akbar’s audio diary”. And I’ll give you some (strictly ‘fair use’!) excerpts from it later on.
But it does certainly occur to me that, given the domestic-Afghan political angle on this whole story, the administration may well have felt virtually obliged–in this case, given Abdul Wali’s relationship with provincial governor Akbar–to take some action against his killers.
Another interesting question occurs to me, too:

Continue reading “Passaro indictment: why him?”

First, Rumsfeld confesses that it was indeed he who ordered the secret detention of an Iraqi terrorism suspect held for more than seven months near Baghdad without notifying the Red Cross.
Reuters’ Charles Aldinger reports today that:

Rumsfeld told reporters CIA Director George Tenet asked him last November “to take custody of an Iraqi national who was believed to be a high-ranking member of Ansar al-Islam”…
“And we did so. We were asked to not immediately register the individual (with the International Committee of the Red Cross). And we did that,” Rumsfeld said at a Pentagon briefing hours after U.S. President George W. Bush again voiced support for the beleaguered Pentagon chief.

I don’t know why, but it just burns me up, the way that in the aftermath of every additional horrifying revelation about the misdeeds of Rumsfeld’s Pentagon, Bush always goes to these extraordinary lengths to tell us that Bombs-Away Don is just a “fabulous Defense Secretary.”
It’s so tasteless. It’s so hideous. It’s so inane. (End of rant.)
Aldinger added to his Reuters account that,

Rumsfeld said the man’s case was unique, but he was vague when reporters asked whether the United States was holding other “ghost” prisoners without Red Cross knowledge in Iraq.

Gee, I wonder why he was “vague”?
Maybe because he knew that the organization Human Rights First (that used to be called Lawyers’ Committee for Human Rights) was coming out–also today–with an important new report titled Ending Secret detention that sketches out the scope of the US military’s globe-circling network of detention facilities?
A press release from HRF tells us that,

Continue reading “And now, the disappeared”

I’ve been really happy to see that Senator Dick Durbin (Democrat from Illinois) has taken the lead in seeking to attach to this year’s Defense Appropriations Bill an Amendment to enact a PROHIBITION ON TORTURE OR CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT.
Moveon.org has a good little email campaign urging people to call their Senators to urge them to support the Durbin Amendment. I think the Amerndment will be voted on today.
I just called both my Senators– one of them is the powerful Sen. John Warner. The people I spoke to in Warner’s and George Allen’s offices both said their bosses “had not yet decided which way to vote” on the Durbin Amendment.
Let’s hope that (a) they get a large number of very persuasive calls urging support of Durbin, and (b) they are open to persuasion on this.
I looked quickly through the text of the Durbin Amendment as provided by Moveon. It is drafted in a pretty compelling way.
In the operative part, it states:

No person in the custody or under the physical control of the United States shall be subject to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.

It also requires the Secretary of Defense to report back to the congressional defense committees regarding what he has done to implement this, and to continue sending,

on a timely basis and not less than twice each year, a report to Congress on the circumstances surrounding any investigation of a possible violation of the prohibition … by a member of the Armed Forces or by a person providing services to the Department of Defense on a contract basis.

The Amendment prefaces all that operational language with references to a number of the existing laws against torture and other abuse that are already in both in the Uniform Code of Military Justice and other portions of domestic law and in international treaties that have been ratified by the Senate.
It also highlights the following very significant quote from George W. Bush, that I confess I hadn’t seen before:

Continue reading “Sen. Durbin’s amendment to prohibit torture”