A courtroom isn’t the best place to put history on trial.
Mar 8, 2010, Vol. 15, No. 24 • By CHARLOTTE ALLEN
A History of Political Trials
From Charles I
This is a detailed and depressing account of the consequences of using the criminal justice system to punish outrages, usually genuine but sometimes fabricated, that are, for a variety of reasons, outside the bounds of what we think of as criminal law.
As the subtitle indicates, it is not an exhaustive historical survey of political trials. It does not cover such travesties as Stalin’s show trials of the 1930s or the routine imprisonment of dissenters by the Castro regime. Rather, it examines a specific subset: the trials of former heads of state and their top officials by the victors who unseated them in wars or political coups. The post-World War II Nuremberg trials that resulted in war-crimes convictions of highly placed Nazi operatives fall into this category, as do the numerous Soviet-instigated judicial purges of non-Communists in Eastern Europe during the early Cold War years, the trials of Romania’s Nicolae Ceausescu and East Germany’s Erich Honecker at the end of the Cold War, and most recently the 1998 genocide conviction of the former Rwandan president Jean Kambanda, the genocide trial of the former Yugoslavian president Slobodan Miloševic, and, finally, the 2006 trial of Saddam Hussein.
As Laughland narrates it—and the data he supplies are compelling and carefully annotated in exhaustive footnotes—all of these proceedings, whether of Nazi mass murderers or of Czech and Hungarian nationalists whom the Soviets wanted to see dead, were marked by egregious violations of fundamental legal principles that have marked civilized societies since Roman times but are all too typical of political trials, especially under the hastily convened international tribunals that seem to be de rigueur under current definitions of human-rights violations.
These include convictions under dubious conspiracy theories and ex post facto laws (typically created by human-rights internationalists), selective prosecutions (the Nuremberg prosecutors turned a blind eye to the Katyn massacres and other Soviet atrocities, and Stalin dispatched to Nuremberg the notorious Andrei Vyshinskii, chief prosecutor of the Moscow show trials, to keep an eye on the proceedings and make sure that no mention of the Nazi-Soviet Pact ever entered the courtroom); blatantly biased judges who, in some cases, doubled as prosecutors; reliance on hearsay and other evidence that would be inadmissible in an ordinary criminal trial; denial of such basic rights as the right to confront witnesses or even to prepare an adequate defense; the conspicuous absence, in many cases, of any right to appeal death sentences; and the criminalization of speech that would merely be condemned as morally repellent in any free society.
The sentence of execution by hanging meted out at Nuremberg in 1946 to Julius Streicher, a Nazi journalist whose anti-Semitic newspaper Der Stürmer specialized in vicious racial and religious propaganda but who neither held any government position with the Third Reich nor played any role in the war or in the Holocaust, set a precedent for the routine prosecution of offending journalists by Communist governments alongside the onetime heads of state whose actions the writers had supported. Not surprisingly, a “zero percent acquittal rate” has been the rule in such trials, Laughland writes. (Which is not entirely true: Three of the 24 Nuremberg defendants escaped conviction, only to be subsequently arrested and convicted in other forums. But it is certainly true for deposed heads of state, from Charles I on down.)
It is difficult to summon up much pity for Julius Streicher and his fellow defendants, or for a mass murderer and mass torturer like Saddam Hussein. Yet it is equally difficult to conclude that the judicial proceedings that resulted in their executions comported with legal justice, as contrasted to the rough justice under which we might say they got what they deserved. Three lawyers on the defense team for Saddam and his Baathist party codefendants were assassinated in the civil strife that followed the U.S. invasion, and two of the judges on the Iraqi Special Tribunal formed to try Saddam for war crimes and crimes against humanity resigned. One of those, Rizgar Amin, the presiding judge, claimed interference by the new Iraqi government formed in 2005. The Baathist defendants also maintained that witnesses had been murdered. Saddam’s chief defense lawyer asserted that his client had never been allowed to confer confidentially with him, and that Saddam had not been presented with a full account of the charges against him until six months into the trial after being arrested.