AIH399 MAKING HISTORY
by Zora Bilogrevic
He who fights with monsters might take care lest he thereby become a monster.
- Friedrich Nietzsche.
For international justice to function efficiently, it is essential that political leaders are held accountable for their actions and can make their case in front of a fair and unbiased jury. But is this ever possible for political leaders convicted of crimes? Trials of figures such as Charles I and Louis XVI illustrate the nature of unfair trials for political figures. But, centuries on, the question still lingers: Have we really progressed with to a stage where fair trials for such leaders can occur? Modern trials of Slobodan Milošević, Saddam Hussein and even the murder of Osama bin Laden indicate a clear universal willingness to abandon democratic values for a ‘moral’ justice rather than a ‘legal’ one. Whilst moral justice is not to be disregarded entirely, the legal system should not be directed by independent moral compasses. Rather, it ought to focus its attention on the laws that have been established. Furthermore, although there is a well-established history of show trials for high profile political figures, is it simply human nature to deny the accused of their rights because of the crimes they are alleged to have committed? Is the ancient notion of lex talionis (an eye for an eye) in criminal punishment prominent in the international justice system? And will this theory resonate in the trials of Radovan Karadžić, Ratko Mladić and Muammar Gaddafi?
Human rights began formulating with the creation of the Magna Carta in 1215. Clause 39 outlines a right to due process, a right to the respect of all legal rights owed to a person by law. King Charles I was put on trial for treason in 1649, in a novel case of holding the monarch accountable for their actions. While the legal principles that arose from this trial (i.e. political accountability) were momentous for the development of any modern constitution, it nonetheless was, as Honourable Justice Michael Kirby claims, ‘a rather discreditable affair’. For instance, the Court had no legal authority and the King had neither advanced knowledge of the charge nor legal representation. Whilst the King’s execution prevented the furtherance of any human rights violations, it seems illogical to deem that his rights must be violated, too. This trial, however, which was held in 1649, was one of a kind and an example from which to learn.
The trial of Louis XVI during the French Revolution also was notable in terms of historical judicial lessons. Louis, like Charles, was put on trial for treason. Louis, however, was not a ‘criminal’ as such but rather an ‘enemy of the people’. The unpopular Girondin argument was that Louis should be accorded with all rights accorded to a Frenchman. But the Jacobin argument was that Louis was not a Frenchman. What Cromwell (trial of Charles I), Just and Robespierre (trial of Louis XVI) appear to have in common is that they felt no need to make a case that the King had betrayed the people. Yet Condorcet, the leading intellectual of the Girondins, opposed this view.
What justice truly demands is that the general principles of jurisprudence in favour of the accused should be preserved or even extended.
This Girondin argument should be applicable to modern trials, even though it was shunned at the time. Unfortunately, however, the Jacobian argument appears to be the popular view in contemporary politics.
General principles of jurisprudence have no place here. If you are convicted, you are dead.
Louis was put on trial in order to have consequences for the future. But is it really in the name of fairness that we make an example out of Louis? After creating The Declaration of the Rights of Man and Citizen, in which Article 9 claims that ‘all persons are held innocent until they shall have been declared guilty’, it seems hypocritical to turn on these ideals. In fact, it probably would have worked in the favour of the revolutionaries if they had provided Louis with a just trial and convicted him fairly. Surely this would have illustrated to the people of France that the revolution enveloped natural justice. Despite this, Louis XVI’s trial, considering its antiquity, serves as an ideal learning curve for modern prosecutions of political figures.
Fast-forwarding a few centuries to the end of WWII, it seemed natural that those who had committed horrific wartime atrocities would be put on trial. Legally speaking, the Nazi leaders who killed and persecuted Jews in Nazi-occupied Europe were not acting illegally according to German laws at the time. Although it was argued that the Nazis were protected by German sovereignty and thus did not fall within the jurisdiction of an international court, later jurisdiction was affirmed in the Genocide Convention 1948 and Rome Treaty in 1998. Of course, the Holocaust and other Nazi-perpetrated wartime atrocities cried out for justice, but the initial Allied strategy for dealing with captured Nazis should be questioned from a legal standpoint. The Western Allies initially agreed that when they discovered leading Nazis they would be captured and summarily shot. It was considered that a fair trial was more than what they deserved. But this would have raised questions about who decides whom is eligible for a fair trial. Human rights are supposed to be inalienable, but apparently easily abandoned if the time calls for it.
Perhaps the most notable Nazi trial for crimes against Jews was that of Adolf Eichmann in Israel, 1961. The fact that Eichmann was tried in Israel, after being captured by Mossad agents in South America, guaranteed a guilty conviction. Even more unnerving, the trial’s emphasis was not based on actual eye-witness testimony, but rather ‘witness testimony’. With the possible exception of one isolated case in Hungary, however, Eichmann was not directly involved in the actual killings. Rather, as a mid-level SS officer Eichmann was the quintessential ‘desk-murderer’ (Schreibttischtäter) or bureaucrat responsible for contributing to the administering the overall killing process. As an example of ‘justice’, Eichmann was paraded through a long show trial before being executed.
Taking place in the immediate postwar period, the Nuremberg trials entailed poor understanding of the details of the Holocaust. For instance, there was no distinction between the main death camps and ‘ordinary’ concentration camps. Also, Julius Streicher was prosecuted among the ‘major’ Nazi war criminals. He may have been a detestable antisemite, but Streicher, the Gauleiter of Nuremberg, was a peripheral figure by the war and certainly didn’t play any key role in the implementation of the ‘Final Solution’. Perhaps because Hitler and Goebbels escaped through suicide, it was necessary to make examples out of lesser Nazi figures. This is the fate that awaited the likes of Streicher and Eichmann, who deserved to be held accountable for their actions—but going through the machinations of a proper legal procedure.
The principles in Eichmann’s trial arguably laid the foundations for other controversial war crimes trials. Yugoslav war criminal Slobodan Milošević was charged with genocide, deportation, murder, persecutions on political, racial or religious grounds, inhumane acts, forcible transfer, and extermination to name but some of the 66 charges levelled at him. The charges relating to the war in Kosovo were expected to be the strongest part of the case. Yet, the prosecution signally failed to prove Milošević ‘s personal responsibility for atrocities committed on that ground and upgraded to atrocities committed during the Bosnian War. It is rather disquieting that the original evidence was insufficiently substantial, but in order to achieve ‘justice’ the initial charge was escalated in a kind of lynch mob-style conviction.
Essentially, the entire trial was a farce. Conflicting testimonies were paramount. Take, for instance, Rade Marković’s written statement implicating Milošević, which later was discovered to have been extracted from him by torture and duress by named NATO officers.
Several prosecution witnesses were exposed as liars including Bilall Avdiu, who claimed to have seen ‘around half a dozen mutilated bodies’ at the scene of the killings in Račak that prompted the conflict in Kosovo. Forensic evidence later confirmed that none of the bodies had been mutilated. Yet another witness, Ratomir Tanić, was shown to have been in the pay of British intelligence.
Milošević also acted as his own lawyer after being denied the ability to confer with lawyers. His self-representation led to serious trial delays and gave him the chance to make unfettered and incriminating speeches throughout the trial. The judge concluded that Milošević had a right to defend himself, but this was later interpreted to mean he had a right to effective representation rather than self-representation.
To top off the farce, in violation of the principle of an open trial, US presidential hopeful and former NATO commander Wesley Clark was allowed to give testimony in private, with Washington able to apply for removal of any parts of the evidence he provided from the public record they deemed unfit for US interests.
Fundamentally, this illuminates yet another trial that is biased, unfair and an international injustice. The illegal NATO bombing of Yugoslavia killed more people than under Milošević’s rule. Following this logic, then, perhaps NATO ought to be on trial with Milošević. In a precedent set at Nuremberg, though, ‘victors’ justice’ does not allow for any tu quo que or ‘you do it, too’ arguments from the defence.
For his trial, Saddam Hussein was charged in the Iraqi Special Tribunal rather than in an International Court. The idea of using local justice can work in favour of justice on part of the victim but not necessarily on part of the accused. For instance, trial by local tribunal excludes international politics and provides the victims and survivors a better chance of having their time in court. But this also means there is a clear bias and also death penalty.
An international trial of Saddam Hussein would have guaranteed the application of the international human rights standards including the exclusion of the death penalty. This did not occur, however, thereby resulting in Hussein’s execution.
Hussein’s execution illustrates US apathy of blood spilt. During the course of the trial, three defense attorneys were murdered and another abducted and wounded. One judge was forced to resign because apparently he was too sympathetic to the defense. The succeeding judge had relatives killed in one of the massacres for which Saddam was tried—a situation that, according to the Western adversarial system, would mean a juror (Iraqi system only has a judge) would be disqualified. Prosecutors often delayed giving evidence to the defense or didn’t provide it at all. According to Human Rights Watch, microphones were sometimes turned off and translators stopped by those in charge if the testimony didn’t suit them. Hussein also did not have access to an attorney before his pre-trial arraignment. Ergo, this illustrates yet again in the face of justice that a political figure is shown not to deserve the same rights as afforded the average citizen.
Unlike the aforementioned figures, Osama bin Laden didn’t even reach trial stage. After being murdered on the spot by the CIA, the bloodlust of US imperialism highlighted itself through college students turning Pennsylvania avenue into a giant party, scenes of waving flags and hugging strangers and chants of ‘USA!’ and the singing of patriotic songs.
Bin Laden, the leader of al Qaeda and apparent mastermind behind the 9/11 attack, certainly represented a threat to US national security. Justification for lowering to the level of war criminals and international terrorists and executing him in a secret operation, however, seems illogical and aimless. After all, isn’t the objective to spread the notion of human rights and democratic ideals? Obama’s sickening romantic language used in his official address to the US after the murder of bin Laden illustrates humankind’s morbid fascination in violence and murder:
A bright September day was darkened… hijacked planes cutting through a cloudless September sky… Twin Towers collapsing to the ground… black smoke billowing up from the Pentagon… the empty seat at the dinner table, children who were forced to grow up without their mother/father, parents who would never know the feeling of their child’s embrace… for all those who support human dignity, justice is done.
Perhaps the most frustrating part of this issue is that even though we have historical events such as the trial of King Charles and Louis XVI to reflect on, we opt to kill rather than bring to trial. Even when the trial route is adopted, it becomes a shambles and just prolongs the doomed passage to execution anyway. This article most certainly doesn’t encourage, support or endorse terrorism, dictatorships, genocide or authoritarian monarchies, but international justice should not be in the eye of the beholder. After all, the law, as defined by Aristotle, must be ‘reason free from passion’. There should be an international standard of justice that all are held to operate under. But, of course, this view is impractical and unrealistic. For that to work, there would have to be an entirely impartial body ensuring that justice is met. Considering everything that has been explored in this article, it is obvious that man-made social structures are flawed. As it was once asked, “Quis custodiet ipsos custodies?” Who will guard the guards?
Maybe the only solution is to accept that lex talionis is inherently a part of human nature and the standards of international human rights are merely an illusion. The Hague tribunal is clearly not an efficient method. The US refuses to be subject to its jurisdiction; it waged an illegal war against Milošević’s Yugoslavia and has refused to consider prima facie evidence of western leaders who were guilty of war crimes in the same conflict. Furthermore, these trials only end in blood and death.
In an ideal world of the international justice system, the law would be applied equally to all. But in this unequal and unideal world, this hope looks to be further away than ever. For now, at least, the fate of Mladić, Karadžić and Gaddafi is already decided before the conclusion or even the beginning of their trials. If the road to justice is based on Obama’s perception of ‘human dignity’ and ‘justice’ then it is essentially a road to the guillotine.
Selected further reading:
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© APH Network and contributors 2011. All rights reserved.
Citation: Zora Bilogrevic, Political Trials: Justice by Guillotine?
Australian Policy and History. October 2011