Can Saddam Receive a Fair Trial? (Why He Should)
As the trial of Saddam Hussein and his co-defendants began in October in Baghdad, there were inevitable comparisons to the trial of Nazi leaders 60 years ago before an international tribunal at Nuremberg, Germany. Although the Nuremberg trials were criticized by some (most famously Sen. Robert Taft) as “victor's justice,” they remain the most successful war crimes prosecutions in history and serve as a model for the current prosecution in Iraq.
The Nuremberg trials succeeded because, in large part, they were fair. The defendants were guaranteed counsel, provided full access to the prosecution’s evidence, and afforded due process, including the opportunity to testify and to cross-examine the prosecution’s witnesses. The trials were not “show trials.”
Indeed, the desire to avoid the Soviet show trials of the 1930s – which merely afforded the defendants an opportunity to give coerced confessions in open court before the pronouncement of guilt – figured prominently in the efforts to set up the Nuremberg tribunal. Justice Robert H. Jackson, who served as the United States’ chief prosecutor, insisted upon the genuine possibility of acquittal in order to ensure the legitimacy of the trials.
Thus far, the prosecution and trial of Saddam Hussein have been criticized for a number of reasons. In a war crimes prosecution, judgment is made by the victorious party, thus blurring the line between politics and law. Even as it acknowledged the inevitability of this fact, the New York Times nevertheless opined on its editorial page that “ill-considered decisions by the United States and Iraq’s dominant Shiite-religious and Kurdish-nationalist parties have put politics and score-settling first.”
Furthermore, Human Rights Watch recently issued a report raising concerns about the fairness of the procedures to be followed in the trial. The report noted that, among other things, Hussein and the other eight defendants could be convicted based upon a lower evidentiary standard – something less than “beyond a reasonable doubt” – than is generally required in international criminal prosecutions.
The proof of the pudding is in the eating, and ultimately the conduct of the trial will determine whether the Iraqi tribunal will transcend the pressures of politics and follow the procedures necessary for a fair trial. The stakes are high. If the trial of Saddam Hussein is viewed as fair, it could promote the sense that justice has been served by passing judgment fairly on Hussein, legitimate the new government in Iraq, and – perhaps the greatest legacy of the extensive evidence gathered by the prosecutors at Nuremberg – establish a record that will ensure the condemnation of Hussein over time.
The effort to guarantee due process at Hussein’s trial is not without risks, however. In providing the defendants the opportunity to speak in their defense, the tribunal could become a forum for Hussein to address his supporters, to encourage the insurgency, and to renew attention on the legitimacy of the United States invasion of Iraq in 2003. Here too, the Nuremberg experience – in particular, the cross-examination of Hermann Goring – is relevant.
The first Nuremberg trial, against the Nazi military and political leaders, began with Jackson’s eloquent opening statement. Jackson acknowledged the claim of victor’s justice but argued that such criticisms could be met by conducting a fair trial. “To pass these defendants a poisoned chalice is to put it to our own lips as well,” Jackson told the tribunal.
Jackson explained that the prosecution would prove its case by presenting records and films documenting the defendants’ actions. And that is exactly what the prosecution did, taking nearly four months to introduce into evidence a history of the Nazis’ rise to power, war against other European countries, and use of genocide. (In this regard, Jackson noted in his opening statement that the prosecution had been assisted by the defendants’ “share of the Teutonic passion for thoroughness in putting things on paper.”)
Hermann Goring was the first defendant to present his case. As Hitler’s named successor and chief of the air force, Goring was the most prominent Nazi leader in the dock. During his testimony on direct examination, Goring remained unrepentant. He assumed responsibility for Germany’s aggressive foreign policy until the invasion of the Soviet Union, and for the punishments imposed upon German Jews after Kristallnacht in 1938. (After the looting of property owned by Jews by Nazi gangs, the Nazi leaders adopted laws requiring Jews to pay for the damage.)
Goring’s confrontation on cross-examination with Jackson was greatly anticipated. As Joseph Persico recounts in his history of the trial, one of the judges, Sir Norman Birkett, wrote to a colleague that he expected the cross-examination to be “a duel to the death between the representative of all that is worthwhile in civilization and the last important surviving protagonist of all that was evil. In a sense, the whole result of the trial depends on that duel.”
Initially, Goring controlled the examination, taking advantage of Jackson’s open-ended, compound questions and Jackson’s reliance upon a translator to pose his questions and translate Goring’s answers. Goring lectured Jackson on the necessity of Hitler’s successful campaign against democratic government, citing allegedly statements made by President Roosevelt about democracy. He defended the use of secret police and concentration camps as part of the Nazi campaign against the Communists in Germany, striking a note that resonated strongly at the dawn of the Cold War.
After the first two days of the cross-examination, as Persico describes, there was consternation behind the scenes. Goring’s performance risked turning the trial into a circus. Moreover, there were concerns that people would accept his justifications for the Nazi regime’s actions and policies.
Jackson rallied for the rest of the examination, confronting Goring with incriminating documents and generally confining his questions to narrow topics. Although Jackson’s performance has been criticized, biographer John Barrett has argued persuasively that this verdict is based upon the first two days of the cross-examination and ignores the effectiveness of the remainder of the examination. Ultimately, Goring and a number of other defendants were convicted. Goring was sentenced to death, but committed suicide in his jail cell the night before he was to be hanged.
As the Nuremberg trials demonstrated, a war crimes prosecution is an ambitious yet somewhat fragile undertaking. The setting for Hussein’s trial in Iraq today is far more perilous than post-war Germany. The proceedings against Hussein and his co-defendants were adjourned in October principally because a number of witnesses were too scared to testify. (Since that hearing, two defense lawyers have been executed, and another defense lawyer has been injured.)
Moreover, during the October hearing, Hussein demonstrated that he intends to challenge the legitimacy of the tribunal. More recently, his defense lawyers have cited concerns about security to challenge the tribunal’s authority. The head of the defense team recently demanded improved security for the trial, and stated that the lawyers consider the next court date to be cancelled in the interim.
As developments since the first day of trial in October have shown, the ongoing resistance to the United States presence in Iraq will make it enormously difficult for the Iraqi tribunal to conduct a fair trial of the former Iraqi leader.
Furthermore, the difficulties could be exacerbated if Hussein and his lawyers borrow a page from the defense manual of Slobodan Milosevic, and insist upon the right to present a lengthy defense. (The former Yugoslav president has presented an extensive defense, and is currently seeking additional time to present a complete defense. Already, that trial has lasted more than three years. Loath as the tribunal is to prolong the trial, it risks being perceived as unfair if it curtails Milosevic’s defense.)
It would not be surprising if Hussein attempts a similar maneuver. Delay not only defers the time of judgment but allows for the possibility that the prosecution will collapse, if the United States withdraws from Iraq or reduces its presence while the trial is ongoing.
Finally, the risks of conducting a fair trial are compounded by the novelty of the prosecution in Iraq. The Nuremberg trials concluded more than 50 years ago, and the prosecution of Hussein demonstrates that their legacy endures. The principles and procedures of the Nuremberg trials are new to Iraq, however, and must be applied in a dangerous setting. Still, the opportunity to deliver justice to a murderous dictator is compelling. As Jackson told the tribunal in his opening statement, “[t]he real complaining party at your bar is Civilization.” The trial must continue, fairly.