A courtroom isn’t the best place to put history on trial.
Mar 8, 2010, Vol. 15, No. 24 • By CHARLOTTE ALLEN
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.
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