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Friday, December 29, 2006
Nuremburg 2006?
It would appear that Saddam Hussein will be going to his death before the New Year. His sentence has been reviewed and approved by an Iraqi appeals court, and a date of execution no later than Sunday, December 31, has been set. Concerning the deposed tyrant's request to go before a firing squad rather than face the noose, there has been no word.
A number of persons of dovish leanings, mostly opposed to Operation Iraqi Freedom from the start, have railed against Hussein's trial, and of course against his sentence, as "victor's justice." Perhaps the best known of these is London Times Online columnist Bronwen Maddox. Indeed, she's been beating this particular drum for quite a while now.
Your Curmudgeon does not dismiss all of Miss Maddox's objections to the trial. There have been times when it did descend into farce -- but in all the instances with which your Curmudgeon is familiar, it was due to the exertions of the defendant and his counsel. Iraq's newborn judicial system was clearly not adequately equipped to deal with all of that. The American judicial system, with its centuries of experience at how to keep order during an adversarial proceeding, would have done better, but Iraq is not the United States.
Iraq will not be the United States any time soon, either. But it will have to cope with violence, threats, and disruptions far worse than we of America must face, for a long time to come. Its courtroom experience with its ex-dictator is but one conspicuous milestone along its road to stability.
No, there can be no sensible objection to the trial on procedural grounds, not if we first concede that it was Iraqis, and not Americans, who ought to have presided over it. Indeed, your Curmudgeon was somewhat heartened that it was as orderly as it was. But an accusation of "victor's justice" must be addressed from both procedural and substantive viewpoints.
"Victor's justice" is a term traditionally used to describe the nasty habit nations victorious in war have often displayed of holding farcical trials of defeated nations' potentates. The charges need not be serious, nor well supported by evidence, for the outcome is preordained: the deposed satrap will be adjudged worthy of the gallows regardless of any and all representations to the contrary. In other words, "victor's justice" is not justice; it's merely a mocking procedural decoration for the cackling delight the victor takes over his defeated adversary, who, despite once having armies at his commend, is powerless to save himself.
The United States does not practice "victor's justice." Indeed, we rarely engage in any sort of judicial sequel to a war. If there's a war on and we want a specific adversary dead, we send in a SEAL team, or a detachment from Delta Force or Marine Force Recon, and take him out. Once the war is over, we normally retire to our own concerns, and allow the defeated nation to do what it likes with the leaders who were foolish enough to court our military wrath.
There have been two exceptions: the Civil War and the Nuremburg War Crimes Trials.
The Civil War presented an unusual case, in that the contention of the victorious side -- the Union -- was that, as the leaders and citizens of the defeated side -- the Confederacy -- had never ceased to be Americans subject to the force of American law and the jurisdiction of American courts, they could justifiably be charged with treason as defined by Article III, Section 3 of the Constitution:
Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
Yet none of the Confederacy's leaders were thus charged. A single individual -- Captain Henry Wirz, commandant of the infamous Andersonville Prison Camp -- was tried for his atrocities, convicted and executed. President Johnson had decided that the nation's attention should not be deflected from the repair of the faults in the Union that had brought about the war in the first place. It is quite possible that he was completely correct.
The aftermath of World War II was a different matter. At that time, the Geneva Conventions had some seniority to them, and Germany and Japan were both signatories to them. War crimes trials for persons complicit in the maltreatment of captured enemy soldiers, examples of which were rife on both the German and Japanese sides, were entirely consistent with those conventions. But the Western Powers, among which the United States was pre-eminent, went further, creating a precedent whose moral basis is questioned even today.
The moral problems of the Nuremburg Trials stemmed from their reliance on "international law" and "the laws of war." At the time of the Trials, the phrase "international law" was even more of a joke than it is today. The League of Nations, intended by its creators to perform international arbitration and mediation in the hope of preventing a second World War, was a farce even by the standards of the time. It ceased to function in any significant sense with the inception of hostilities. Thus, there were no standards other than ancient treaties, which had almost all been abrogated expresssly or implicitly, and tradition and usage, which were endlessly subject to interpretation, on which to found trials for the violation of "international law."
The laws of war, such as they were at the time, created neither a judicial process nor a set of associated punishments for their violation. The Geneva Conventions were adequately explicit about what a warring nation must and must not do with its prisoners of war, but they failed to address what was to be done with those who flouted them. Since it is clear that, in the aftermath of a war, either there will be a victor or a stalemate, and that in the case of a stalemate there would be no prospect of war crimes trials for anyone, it follows that war crimes trials will always be vulnerable to accusations of "victor's justice." After all, who else would conduct them? And so it was in the case of Nuremburg.
Note that 17 of the 24 defendants were sentenced principally for "crimes against humanity." This phrase has a remarkable glow to it, and an equally remarkable elasticity. The Nuremburg defendants were all despicable men who had done much evil, but the specific charges against them were problematic under the laws of Germany as they had existed at the time of their deeds. Since "international law" provided so little cover, the substance of the accusations against the Nuremburg defendants had to come from some third source. The source upon which the tribunals relied was the common sense of humanity that some acts are evil by an absolute standard, and must not go unpunished regardless of what any law might say.
This might be the clearest expression of the doctrine of moral absolutes ever composed:
I asked one of the members of Parliament whether a majority of the House could legitimize murder. He said no. I asked him whether it could sanctify robbery. He thought not. But I could not make him see that if murder and robbery are intrinsically wrong, and not to be made right by the decisions of statesmen, then similarly all actions must be either right or wrong, apart from the authority of the law; and that if the right and wrong of the law are not in harmony with this intrinsic right and wrong, the law itself is criminal. [Herbert Spencer, The Proper Sphere Of Government]
It was upon such an understanding that the Nuremburg Tribunals proceeded. Yet, because the tribunals were conducted by the victorious nations, and because "the common sense of humanity" is itself a somewhat elastic notion, ever afterward objections have been raised to them as "victor's justice."
The case of Julius Streicher, publisher of Der Sturmer, was a particularly thorny one. No one could raise a substantive charge against him for having done anything other than publish his paper and enthusiastically support the Third Reich. His hand had never been raised against any man; the blood on it was entirely metaphorical. Yet Der Sturmer had relentlessly incited Germans to hatred of the Jews and other "race enemies," and could therefore be said to have provided impetus to both the popular persecution of Jews and to the Endlosung in which the Reich tried to exterminate them. Streicher's promotion of this propaganda campaign, though limited to words and words alone, was deemed a crime against humanity deserving of death. He was hanged for it on October 16, 1946.
The reverberations of that trial continue to ring around the globe, with particular significance for "hate speech" laws and prosecutions under them.
Though the results of the Nuremburg Tribunals were largely approved in the West, Washington never thereafter embarked upon a similar outing. The sole incident that's even remotely comparable, the trial of Manuel Noriega after Operation Just Cause deposed him from the rule of Panama, was based on American drug law, itself questionable in extraterritorial imposition, but even so more firmly founded than an accusation of "crimes against humanity." The endlessly repeated questions about whether a man who has obeyed the laws of his own country with scruple and exactitude should be safe from legal consequences after a war have soured our taste for such things, as is evidenced by America's refusal to subscribe to the jurisdiction of the International Criminal Court.
The disposition of Saddam Hussein, therefore, was given to the fledgling Iraqi government. His trial was not conducted according to American norms, nor to satisfy American tastes. Still, we had left it to the Iraqis to do what they deemed best with their deposed tyrant, and we wisely refrained from modifying that stance a posteriori. They who cry "victor's justice" over this affair are without a leg to stand on. Saddam's trial was the closest approach to a sound judicial proceeding the afflicted nation itself could contrive. America merely watched from the sidelines and did its best to keep order in the streets.
And this, when it's possible, is as it should be.
Comments
Fran, one quick quibble to your otherwise excellent piece: Japan did not sign the Geneva Conventions until after World War II. The view of the Japanese government was that since they hadnt signed the Conventions they were not bound by the document’s restrictions. As for a victor’s justice, sometimes that is the only justice available. There were war crimes trials in Leipzig and Istanbul after World War I, and they were debacles. German and Turkish judges ran those trials and most of the accused were found not guilty or given very light sentences. If Hitler thought that he could get away with exterminating the Jews--who remembers the Armenians, as he put it-- it’s because the Turks slaughtered the Armenians, the Germans mowed down anyone they thought might resist them in Belgium and northern France, and both of them still got away with wholesale murder despite the Central Powers losing the war.
Posted by Akaky on 12/29/2006 at 06:02 PMJulius Streicher was more evil than any soldier shooting innocent Jews. Had the major media in Germany railed against the injustice of the Third Reich, Hitler may not have had such an easy time growing his Nazi culture.
In the same way in Gaza today, teachers who teach small children that it is noble to blow yourself up for Allah are more evil than the Shaheeds themselves. A suicide bomber does his deed only once, the teacher does his evil everyday for years with thousands.
I linked to your article from Russell’s Paradox and the Execution of Saddam HusseinPosted by bernie on 12/30/2006 at 02:11 AM
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