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.
Say what you will about Ramsey Clark, Saddam’s lawyer—and there is plenty to say about this career anti-American blowhard who has advocated bringing criminal charges of genocide against President George H.W. Bush and impeaching his son George W. Bush, as well as never having heard of, much less met, a terrorist who didn’t arouse his sympathy—infringement of the right to counsel and the right to a proper written indictment would have been regarded as intolerable had Saddam been an ordinary accused multiple felon in a downtown courthouse in the United States. Mind you, we are not talking here about military proceedings against suspected enemies captured abroad, as at Guantánamo, but about trials of citizens in civilian courts presided over by judges ostensibly dedicated to imposing a more just standard of justice than prevailed under the regimes that the various defendants once represented.
The problem, as Laughland points out, is not so much the gross procedural and jurisdictional irregularities that have marked nearly all these trials, but the fact that such proceedings are not really trials at all but political dramas whose double aim is to get rid of troublesome characters with some semblance of legality and establish by powerful moral symbolism the legitimacy of the government that succeeds them. Hence the book’s opening with the trial and death sentence of Charles I, “the paradigm for all future trials of heads of state.” Charles is customarily regarded as a despot who invoked the medieval divine right of kings to justify a rule of tyranny against a Parliament that stood for nascent constitutional democracy. In the words of 1066 and All That, Charles and his dashing Cavalier supporters were “Wrong but Wromantic” while Charles’s Puritan deposer, Oliver Cromwell, and his parliamentary Roundheads were “Right but Repulsive.”
In fact, says Laughland, the Puritans who tried Charles for treason after winning the civil war of 1648 were not only repulsive but wrong as well. At his trial Charles never claimed to be above the law by reason of divine right but rather that, as head of state, he was immune from criminal prosecution because his acts were acts of state. (This identification of the ruler with the state persists to this day in Britain, where criminal prosecutions are filed, at least nominally, by the queen.) Charles declared memorably:
While Cromwell’s Parliament claimed to abrogate this principle of sovereign immunity by declaring that the law treated all—even the king—equally, Laughland points out that Parliament merely transferred ultimate sovereign power from the king to itself. He writes:
For that reason, judicial efforts to hold former heads of state accountable for their sovereign acts in criminal court have yielded outcomes that, when not outright monstrous—the the trial of Louis XVI in the Terror, Communist prosecutions for pro-Nazi sympathies of political moderates who were in fact anti-Nazi—are logically ludicrous. Laughland describes the trials of the leaders of France’s Third Republic by the Pétain regime in Vichy for engineering France’s capitulation to the Germans in 1940, trials that were followed at war’s end by the trials of Pétain and his Vichy underlings on nearly identical charges.
After the reunification of Germany in 1990, the German government put Erich Honecker, the Communist head of East Germany from 1971 until his forced resignation in 1989 just before the collapse of the German Democratic Republic, on trial for his alleged involvement in the deaths of more than 200 East Germans who had been shot trying to escape to the West. Besides maintaining that there had never been direct government orders to shoot, Honecker raised the cogent legal argument that one state (reunified Germany, essentially the same entity as the former West Germany) had no jurisdiction to try the head of another state (the old East Germany) for crimes allegedly committed there. He noted the additional irony that East Germany had been recognized as a legitimate entity by more than 100 countries, had occupied a seat on the Security Council, and had signed a treaty with West Germany in 1972. Honecker further argued that it was a little late to claim, as the prosecution did, that East Germany had been an illegal entity, adding that while he accepted full political responsibility for the Wall-related deaths, he protested the legitimacy of trying him for criminal homicide under what was essentially West German law.
Unfortunately, as Laughland’s book slogs through nearly two dozen narratives replete with examples of such irregularities, it tends to lose focus. The two final chapters, dealing with the Miloševic and Saddam trials, degenerate into High Tory reflexive anti-Americanism, with NATO and the simple-minded “neoconservatives” of the Bush administration as his chief targets. Laughland is certainly correct that the stories of Serbian massacres of ethnic Albanians in Kosovo and elsewhere, along with their attendant mass graves, turned out to have been exaggerated by several magnitudes. It is also difficult, on surveying the Serbian-Bosnian-Croatian mess of the 1990s, to which the anti-Serb Kosovo Liberation Army contributed its own share of bloodletting, to distinguish between genuine genocide and particularly nasty warfare between ethnic groups that have detested each other for centuries. Something similar might be said about the Hutu genocide of the Tutsi in Rwanda in 1994, to which ex-President Kambanda pleaded guilty. As Laughland tells it, the Tutsi engaged in a fair amount of murderous ethnic cleansing of their own.
Still, it is unnerving—and certainly undermines credibility—for a self-described foe of international criminal tribunals and human-rights enthusiasts seeking to override national sovereignty suddenly to start complaining that the American invasion of Iraq lacked U.N. authorization. Or that the Bush administration’s desire to rid Iraq of Saddam Hussein, gasser of his countrymen, somehow violated the Hague and Geneva conventions. Laughland’s last chapter leaves the reader with the impression that what he would really like to see is a political trial of George W. Bush. Throughout, Laughland tosses about the word “Manichaean” indiscriminately, sometimes as a synonym for “millenarian”—probably an apt description for the Puritans who executed Charles I, hoping to introduce the reign of God in his stead—and sometimes in reference to simple souls who think that there are such things as good and evil and that the latter is worth fighting.
This is unfortunate, because A History of Political Trials is an important contribution to discourse about the vexing problem of how free and civilized societies ought to deal with vanquished leaders of regimes that oppressed their citizens and constituted a threat to civilization. The ancient Meso-Americans sacrificed the losers in battle to the gods. The Romans displayed conquered rulers as trophies in their generals’ triumphs, then either executed them summarily or hoped they would commit suicide. Modern society is more squeamish, not only about waging war itself (the Nuremberg tribunal essentially criminalized war) but about how to deal with our conquered enemies.
Rather than summary executions or lifelong imprisonments, we prefer to clothe our treatment of ex-tyrants with the trappings of legal proceedings, under the theory that meting out impartial justice will remind heads of state that they are not above the law. And yet, in order to exact what we deem appropriate justice—that is, secure convictions every time—we make travesties out of those legal proceedings, doing away with such niceties as impartial judges, rules of evidence, and the traditional ban on retroactive laws.
Exactly this sort of sentiment is at work in the Obama administration’s dumbfounding decision to try the confessed (by all reports) 9/11 mastermind and Guantánamo detainee Khalid Sheikh Mohammed in a civilian federal court in Manhattan—or rather, anywhere but Manhattan after New Yorkers raised hell about having an alleged al Qaeda terrorist in the docket trying to sway the judge with his waterboarding defense only steps away from the site of the 2001 atrocity that he reportedly admitted organizing. The only way that Obama’s people seem to be able to assuage the moral outrage is to assure everyone that Khalid is “likely to be executed,” as White House press secretary Robert Gibbs declared on CNN’s State of the Union. Naturally that’s what we’d all like to see, but it hardly comports with traditional notions of an impartial and unbiased trial.
Laughland does offer some suggestions about how to remedy this kind of situation, which is essentially to abandon the political component of war crimes trials and concentrate not on acts of state but on actual offenses against the just conduct of war, conducted not before international tribunals but before judges in the jurisdictions where the crimes occurred. Ironically, such modest goals ought to have made Laughland more sympathetic to the United States: He recommends, for example, the expanded use of courts-martial to try war crimes rather than tribunals run by “civilian intellectuals, lawyers who have never been professional soldiers and who do not know what it is like to be in the heat of battle.” Hmm, sounds a bit like a case for Guantánamo—and sounds like left-handed praise for the American refusal to sign onto the International Criminal Court, exactly the sort of high-minded symbolic forum without citizen accountability that Laughland decries.
Too bad Laughland is so preoccupied with America-bashing that he can’t see that the United States might offer some ways of getting rid of the political show trials that systematically marred 20th-century justice.
Charlotte Allen is a contributing editor to the Manhattan Institute’s Minding the Campus website.