Robert A. Taft, in a speech delivered at Kenyon College in October 1946, expressed strong opposition to the Nuremberg War Crimes Trials that were just ending. Taft argued that the defendants, the architects of the Nazi regime who had been found guilty of waging a war of aggression and had been sentenced to death, were clearly being tried under ex post facto laws, which are expressly forbidden in the U.S. Constitution. Moreover, Taft stressed that the trial of the “vanquished by the victors cannot be impartial no matter how it is hedged about with forms of justice,” and that it was based on the “Russian idea of the purpose of trials, government policy and not justice, having little relation to our Anglo-Saxon heritage.” He also warned that the trial and its sentences would not “discourage the making of aggressive war, for no one makes aggressive war unless he expects to win.”
Taft’s criticism of the Nuremberg Trials, later echoed by U.S. Supreme Court Justice William O. Douglas and John F. Kennedy (who devoted a chapter to Taft in his book, Profiles in Courage), sound somewhat mild today against the backdrop of the “farce”—the term former Iraqi president Saddam Hussein used to describe his trial before an Iraqi High Tribunal. According to press reports, in five months of proceedings, the court has managed only 17 actual court days amid tight security and accompanied by hunger strikes; boycotts by lawyers; and the assassinations of a judge, two defense lawyers, and a court employee.
Indeed, some of the scenes from the trial would make the producers of Saturday Night Live green with envy. Saddam’s codefendant, Barzan al-Tikriti, the former Mukhabarat (domestic intelligence service) head, showed up in court in his underwear, while Saddam complained that guards were watching him use the toilet. The prosecutor and the defense attorneys kept screaming at one another, and the chief judge repeatedly hit a red button to cut off the microphone while Saddam, who has been held in solitary confinement since his capture in December 2003, declared again and again that he was the only legitimate president and called on the Iraqis to launch a holy war against the American occupiers. “Let the people unite and resist the invaders of their backers,” Saddam said at one point. “Don’t fight among yourselves.” And he continued to address the court even after the chief judge had hit the red button.
U.S. officials have argued that, by supposedly giving ultimate control over the trial to Iraqis (as opposed to international judges or Americans), they have ensured that the former dictator would be tried by his own countrymen. The decision to do that reflected frustrations among the Americans and Europeans over the disastrous trial at The Hague of the former president of Yugoslavia, Slobodan Milosevic. That media spectacle was dismissed in Serbia as “foreigners’ justice” and seemed to have helped to rehabilitate Milosevic. But the suggestion that the trial is under the total control of the Iraqis is as preposterous as the notion propagated by the Bushies that the Iraqi security forces were ready to take over from the Americans.
The U.S. Justice Department has sent at least 50 legal experts to Baghdad to advise the Iraqis, and Greg Kehoe, the head of something called the U.S. Regime Crimes Liaison Office, controls—together with a large group of U.S. intelligence officials—most of the Ba’athist archives, which are now stored in Qatar. That means that the Americans are the ones who decide on the evidence to be presented before the court to convict Saddam. One doesn’t have to be a conspiracy theorist to imagine that documents that point to links between former U.S. administrations and Hussein’s regime or other evidence that implicates current Iraqi officials in mass murder will be excluded. At the same time, the forensic examination of the hundreds of people buried in mass graves is an enormous task in itself and well beyond the capacity of the few Iraqis and foreigners in the country who are trained for such work.
As Taft and other critics of the Nuremberg Trials suspected, trials of ex-dictators and “war criminals,” including the International Criminal Tribunal now hearing testimony about events in Rwanda and the former Yugoslavia, are, by definition, political events that provide a pseudo-legal forum in which the victorious side in an international or civil war can punish the losers based on very specific political considerations. That explains why Japan’s Emperor Hirohito was not put on trial by the Americans after the defeat of his nation in World War II; in fact, the U.S. government paid for the trip he and his family made to Disneyland. The decision made in the case of Saddam was that the Americans would produce and write the script for the legal drama while assigning Iraqis as the actors in the show. Like much of what the Americans have done in Iraq, this trial demonstrated unbelievable incompetence and proved to be a public-relations disaster.
Saddam and his seven codefendants are on trial for the execution of 140 Shiites in the village of Dujail in a reprisal for a failed assassination attempt on the Iraqi dictator in 1982. Saddam and his attorney contend that the trying of a suspect who was attempting to assassinate a head of state isn’t a crime and wasn’t one in this case. But the prosecution argues that the trial before the Revolutionary Court in 1984 was a sham, pointing out that 46 of the defendants were executed before the start of the trial and that some of them were minors. That is probably true and reflects the kind of “legal” system that exists in the Arab world today. With the exception of Lebanon, all of the Arab regimes are police states where the local Mukhabarat remains the only real power that enforces law and order.
In any case, the conventional wisdom is that, unless the Americans exert political—as opposed to legal—pressure on the Iraqis to conclude the trial as soon as possible, with the desired result being the execution of Hussein, the trial of Saddam and his codefendants could extend for years to come, while Iraq descends into civil war and chaos, with sectarian gangs taking the law into their own hands.
Not surprisingly, some Americans are now having second thoughts about this trial. Some of them are probably hoping that Saddam will follow in the footsteps of the leading defendant in the Nuremberg Trials, Hermann Goering, and take his own life. Others, who are now searching for a “strong Iraqi leader” to help keep the country together, are perhaps even daydreaming about the Hirohito “model”: A trip to Disneyland (or Davos) and the return of the “strong Iraqi leader” back to Baghdad.