Tyrants on Trial
As preparations are made for Saddam Hussein’s trial in Iraq, Clive Foss examines the precedents for bringing tyrants to justice and finds the process fraught with political complexity.
At first sight it seems obvious that Saddam Hussein is guilty of crimes against humanity and should face justice and an appropriate penalty. If the justice he is to face were Islamic, the process could be simple and swift: he could be charged with anything from betrayal of trust to making war against God, and would be faced by witnesses before a single judge who would almost certainly find him guilty and order his death by beheading, to be carried out immediately. Although he could speak in his own defence, there would be no lawyers and no appeals. That, however, is not going to happen. Saddam will be tried by a specially appointed Iraqi tribunal, determined to be seen to be fair and to show that the norms of international justice prevail in Iraq. The trial will almost certainly be long and complicated.
Saddam is not alone: another ex-dictator, Slobodan Milosevic of Yugoslavia, is currently on trial, and Augusto Pinochet of Chile may soon be. More than thirty dictators have been put on trial since the seventeenth century; they are, however, a minority. Many dictators, like Stalin or Mao Zedong, have died peacefully after long reigns; others, deposed in coups (especially in Latin America), have been allowed to retire or leave the country; some real monsters – Idi Amin and Pol Pot the most notorious – have avoided justice altogether.
Dealing with deposed despots raises questions that do not always find obvious answers. Why should these men be tried? Who should try them – local or international bodies? Can they get a fair trial? What is a just outcome – how can the demands of abstract justice be balanced against the political need for reconciliation and stability? Were their offences illegal according to the laws in effect? Is the tribunal they face legitimate and competent to judge them? How far should their followers be pursued?
The first trial of modern times, in England, illustrates problems that still challenge equitable solution. King Charles I, not everyone’s idea of a tyrant, had fought and lost a civil war, and wound up the prisoner of enemies who were determined to punish him. By then, the government was in the hands of a small minority of a House of Commons purged of any who might be sympathetic to the king. What remained of the Lords refused to cooperate, so the trial was conducted by a ‘High Court of Justice for the Trying and Judging of Charles Stuart’, claiming to represent the will of the people of England. From the beginning, the verdict was never in doubt: the trial was a cover to justify executing the ‘tyrant’. The indictment stated that Charles had conspired to overthrow the rights and liberties of the people, had levied war against parliament and was guilty of all treasons, murders, burnings and damages committed in the wars. He was accused of being a tyrant, a public and implacable enemy of the commonwealth of England.
The King, who was allowed no counsel, faced his accusers alone. To their chagrin, he ran circles around them. Instead of replying to the charges, he attacked the authority of the court. He claimed that the tribunal was illegitimate, unrepresentative of the people or parliament, and that it had no right to try him. To accept the legality of the court, he claimed, would in itself be a violation of the laws. Charles turned the table on his accusers by maintaining that he was himself defending the liberties of the English people by resisting arbitrary power. Although the judges had no ready answers, the king was found guilty and executed, all in the course of ten days in January 1649.
This trial raised basic problems of legality and fairness, which meant that it could produce no closure, and led to a gruesome aftermath. When the monarchy was restored in 1660, the bodies of Cromwell and two of his closest allies were exhumed and beheaded. A surviving group of regicides was brought to trial and a dozen of them executed. Then the new monarch Charles II brought the process to an abrupt end. Reconciliation trumped revenge.
When Louis XVI of France was deposed in September 1792, the radicals led by Robespierre argued that the people had already condemned Louis and he only needed to be executed. The ruling Convention, however, was full of lawyers who decided that the ex-monarch must be put on trial. Strictly speaking, according to the constitution Louis had himself approved, no court had jurisdiction over him. After much debate, the Convention constituted itself as a court and indicted Louis: ‘the French people accuses you of having committed a multitude of crimes in order to establish your tyranny by destroying its liberty.’
Louis at first spoke in his own defence, denying the legality of the court. But he was in a weak position, for he had sworn to uphold the constitution and his accusers had found his incriminating correspondence with the enemy, Austria. With or without a lawyer, his defence was narrowly focused and ineffective. He was found guilty by a unanimous vote. What to do next? The deputies rejected a proposal to let the whole nation decide by a referendum and narrowly voted for the death penalty, which was soon applied. In this case, the questions of legitimacy and legality arising from the king’s indictment plunged the relatively conscientious Convention into difficult debate.
In 1917, the fate of Nicholas II of Russia, another royal ‘tyrant’ deposed by revolutionaries, put his successors in a quandary. The liberal Provisional Government was willing to leave him alone, but the Petrograd Soviet, which had virtually equal authority, wanted a trial. As a result, he was confined to his palace, then moved deep into the countryside. When the Bolsheviks came to power, they planned a trial with Trotsky as chief prosecutor, believing that bringing the ex-tsar to public justice would strengthen their movement. But as Russia fell into civil war, Nicholas was seen as more of a liability, especially as he might be rescued to lead an opposition, so they had him summarily shot, with no trial or even warning. Justice yielded to the pressing demands of a crisis.
The end of the Second World War in 1945 produced a large crop of defeated tyrants faced by new regimes determined to exact justice or revenge. Ion Antonescu and Ferenc Szálasi, the Fascist dictators of Romania and Hungary, were allowed to defend themselves when put on trial, but verdicts of guilt and their consequent execution were never in doubt. The lawyers for Vidkun Quisling of Norway pointed out that the jury that tried him was prejudiced since it contained no one who shared his point of view, and that capital punishment did not exist at the time he was in office. He was still found guilty and shot. Marshal Pétain of France, former head of the collaborationist Vichy government, was more of a problem. General de Gaulle, perhaps wisely, suggested that he should be sent to the Riviera and forgotten, to avoid the complex recriminations that were likely to follow, but Pétain himself insisted on a trial, where he maintained that the court had no legitimacy and that he had been acting in the interests of France. He was nevertheless found guilty of treason and sentenced to death, though this was commuted to life imprisonment.
Some cases have been solved more simply. Mussolini, Italy’s Fascist leader, was executed by partisans in 1945 after the fastest possible ‘trial’, of which no records were kept. Iraq’s dictator Abd al-Karim Qassem, deposed in a revolution in 1968, was brought before the new Ba’athist rulers in the morning, turned over to a court martial which dealt with only one charge, and shot in the afternoon. Nicolae Ceausescu of Romania faced a similar fate in 1989: he was interrogated in a military base, charged with specific crimes against the people, sentenced and executed.
On the other hand, some trials have been notable for their adherence to the demands of justice, even giving the defendants a fair chance to be heard. The trial of two deposed dictators in South Korea in 1996 was exemplary. Chun Doo-hwan (1979-87) was charged with overthrowing the republic in a coup, while his successor Roh Tae-woo (1987-92) had to answer for his role in massacring civilians in an effort to suppress dissent. Recognizing the irrefutable evidence against them, both showed remorse and accepted responsibility for their illegal acts. Chun received the death sentence and Roh got twenty-two years, but both were soon pardoned. In this case, justice was served but the ultimate needs of national reconciliation reprieved the guilty.
But what about those tyrants, defeated in war, who wind up in the hands of a foreign enemy? The question of Napoleon’s fate after Waterloo perplexed his victors. The Prussians wanted him executed, the Russians would have been content to see him shipped far away, but the Duke of Wellington advocated clemency for his old rival in arms. The British government had other ideas, proposing a trial, but where and how to hold it? France was out of the question because of the great sympathy for the deposed emperor and the fragility of the restored Bourbon regime. Any trial might bring monarchy itself into disrepute. Exile to St Helena was the compromise, essentially a political solution that avoided many dangers and saw him safely off where he could do no harm.
In 1918, Allied popular opinion was in favour of hanging the defeated Kaiser Wilhelm II, but the British press advocated putting him on trial first. The Treaty of Versailles even provided that the Kaiser should be tried by a panel of international judges for his supreme offence against international morality and the sanctity of treaties. Wilhelm, safe in Holland (which was not a party to the treaty), was tempted to give himself up, but knew the trial would be prejudiced against him. Finally, the Allies agreed to leave him there, since a trial might smack of mob vengeance and be unhelpful for European reconstruction; it might also pose a threat to the institution of monarchy everywhere. Here, too, a political compromise avoided the possible disturbances and recriminations that might have accompanied a trial.
In 1945, Hitler escaped justice by suicide, and Hirohito was spared trial because he was needed as a figurehead to maintain stability in Japan. In their absence, the victorious Allies dealt with the problem of calling a whole regime to account by putting its most important subordinates on trial. At the Nuremberg trials, evidence was heard by an international bench of judges drawn from the Allied countries, and the full mechanism of justice, with witnesses and defence lawyers, was brought into play. This was no kangaroo court, though the defendants naturally objected that the trial was ex post facto, claiming that the acts they committed were not illegal at the time, a defence belied by the evidence – even under the Nazis, murder was illegal. Many of them maintained they were only following orders, a circumstance rejected by the court. The charges were crimes against peace, war crimes and crimes against humanity, all detailed in the indictment and limited to activities in connection with the war. The last charge was novel and destined to have major repercussions: from that time on, no tyrant brought before an international court, could hope to get away with atrocities committed against his own people. Two other new principles were advanced: that no one could claim innocence of such atrocities even if the acts were legal under internal laws; and that following orders was no defence if those orders were themselves illegal. Most of the defendants were found guilty and sentenced; several were executed.
The establishment of such precedents and the growing force of international law have made it much harder for tyrants to escape trial but at the same time rendered justice far more complex, without resolving the frequent opposition between justice and politics.
The collapse of Communism in Eastern Europe brought widespread demands for justice against a number of deposed dictators, but the resolution was rarely as simple as in the case of Ceausescu. Most were never put on trial, for they represented a system that permeated entire societies and could not be uprooted without enormous disturbance. East Germany, though, had merged with a larger country with an established system of justice. Its dictator Erich Honeker had been deposed in 1989 after massive demonstrations. After reunification, when charged with corruption and manslaughter, he fled to the Soviet Union, but when that too collapsed, he returned to Germany to face the music. He was released because of ill health and died in exile. His successor, Egon Krenz, was found guilty of manslaughter because he was member of the Politburo at a time when the regime had shot people trying to escape to the West. Sentenced to prison in 1997, he appealed on the grounds that these acts were not illegal at the time. That raised the question of what law should be applied: the shootings were certainly illegal in West Germany, but that law was not valid in the East. The court could simply have pretended that East Germany had never existed, but finally decided against Krenz on grounds inherited from the Nuremberg trials, that there is no excuse for people who commit inhumane acts in the name of a state.
Although local justice works well enough in many cases, courts may be too lenient (or occasionally too harsh), or too incompetent when it comes to dealing with dictators. In 1994, Mengistu Haile Mariam, whose regime had killed
tens of thousands in Ethiopia between 1974 and 1991, was charged, along with some 3,000 of his followers, with genocide and murder. The opening of the trial stirred great euphoria as the tormented population believed that a mass of criminals were going to get their deserts. Ten years later, the trial was still dragging on. Mengistu himself had fled to Zimbabwe, where he could not be traced, and only a fraction of his followers had been convicted. The courts were simply overwhelmed.
In South America, successor regimes have tended to pardon former dictators found guilty of crimes against their people as part of a process of national reconciliation. Argentinian dictator Jorge Videla, (1976-81) who organized the ‘dirty war’ that claimed the lives of thousands of real or imagined terrorists, received a life sentence in 1985 for his role in murder and torture but was pardoned after serving four years by the new president, Carlos Menem. Videla was arrested again in 1998, this time for his role in kidnapping babies born to the ‘disappeared’ during his regime. He was still under house arrest in 2003 when the incoming liberal president, Nestor Kirchner, declared his support for the annulment of the amnesty laws. A German court requested Videla’s extradition for his role in the murder of German citizens, but he remained confined at home, pending resolution of the legal entanglements. In June 2005 the Argentinian Supreme Court finally revoked the amnesty laws of the previous regime.
This and other recent cases reflect the involvement of international courts and lawyers in the increasing complexity of justice. In 1985, Leopoldo Galtieri, architect of the 1983 Falklands War and a major figure in the ‘dirty war’, was found guilty of mismanaging that war; he was also pardoned by Menem in 1990. His civilian victims continued their efforts against him and in 2002, he was ordered to stand trial for his role in the kidnapping and disappearance of leftwing guerrillas; at the same time, a Spanish judge, Baltasar Garzón, issued an international warrant against him for the deaths of Spanish citizens in that campaign. An Argentine judge ordered his arrest on the grounds that pardons for crimes against humanity were contrary to the Argentine constitution. Galtieri died before he could face this trial.
The most complex case is that of Augusto Pinochet, who resigned as dictator of Chile in 1990 with a grant of immunity under the Chilean Constitution. In 1996, Baltasar Garzón filed a suit against him from Spain, alleging torture and execution of thousands of people, including Spanish citizens. Pinochet was then safe in Chile but in October 1998, when he was in England for an operation, Garzón issued an extradition order against him, and he was arrested. The House of Lords rejected his claim of immunity as a former head of state on the grounds that the crimes for which he was indicted were not part of his official acts, but he was sent back to Chile because of ill health rather than face extradition. On his return home, the Chilean Supreme Court revoked his immunity and placed him under house arrest. The Appeals Court dismissed the first murder charges against him and found him guilty only of covering up his actions, but in 2004 he was indicted again for murder and kidnapping and in January 2005 the Chilean Supreme Court ruled that he was fit to stand trial. Pinochet’s case has provided further precedents to use against tyrants, and seriously weakened their possible lines of defence.
The creation in the 1990s of UN Special Tribunals to hear charges of war crimes and genocide brought a new dimension to international justice. The results so far have been mixed: the first trial – that of former prime minister Jean Kambanda of Rwanda – was settled relatively easily, but the other, against Slobodan Milosevic, still drags on. Kambanda, who went before the International Criminal Tribunal for Rwanda in 1998, was the first head of state ever convicted of genocide. He made the job of his accusers easier by confessing to his crimes, but after getting a life sentence he changed his mind, tried to retract his confession and appealed. This was rejected in 2000. Kambanda went to jail but thousands of others, equally guilty of murder, still await trial in Rwanda as they try every legal device to delay or stop the proceedings. Here, as in Ethiopia, the court is simply overwhelmed by the number of defendants, since it needs to follow proper legal procedure by amassing all the evidence against them and hearing their defence. As a result, many are either rotting in prison or have been allowed to go free. This can be a danger when courts are determined to play by the rules, for legality can appear to triumph over justice.
The case of Slobodan Milosevic has proved far more protracted. The Special Tribunal for Yugoslavia was created in 1994. In 1999, it indicted Milosevic for crimes against humanity and violation of international law, deriving from his role in the persecution of the Kosovo Albanians in 1999. The defendant, however was still in Yugoslavia, which had no intention of extraditing him. Its president wanted him tried at home, rather than risk an explosion of outrage from nationalists opposed to foreign justice. The tribunal maintained that Yugoslavia was obliged to give him up according to international law, but had no power to force a sovereign government to surrender one of its citizens. Only when the United States threatened to cut off $100 million of financial aid, and after more legal disputes, was Milosevic taken to The Hague in 2001. His trial continues, while he adamantly refuses to recognize the jurisdiction of the court.
In modern times, a consensus has emerged that tyrants should not get away with their crimes against humanity but must face a fair trial, not so much for revenge as for catharsis, to bring closure to the survivors of their actions, and as a warning to future would-be tyrants. Yet fairness can itself bring problems. If Saddam’s tribunal decides to exercise due legal process, the case could drag on for years and could prove embarrassing for the powers who supported him in the past. Delayed justice brings real dangers: tyrants can start to look better in retrospect, especially if the succeeding regime fails to offer security or prosperity; the population might get exasperated waiting for closure; and the ex-tyrant could serve as a rallying point for opposition. On the other hand, swift or arbitrary justice could undermine the rule of law that a country like Iraq is so determined to achieve. Much will be heard about these precedents and the complications they evoke.
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