[This book review was published in the Spring 2009 issue of The Journal of Social, Political and Economic Studies, pp. 124-131.]
A History of Political Trials From Charles I to Saddam Hussein
Peter Lang Ltd, 2008
This is a valuable book, informative, readable and thoughtful. The author has a fine propensity to think independently, not repeating anybody’s shibboleths, and is keenly perceptive. It is hardly to be expected, of course, that everyone will agree with his insights (though many will), such as when he observes provocatively that the 1945 dropping of the A-bombs amounted to “crimes against humanity” or when he voices a hostile critique of the neoconservatism that has had so potent on effect on United States foreign policy in recent years. His review of several major political trials—which includes those of Charles I, Louis XVI, Marshal Petain, the Nuremberg defendants, Marshal Antonescu, the Tokyo defendants, the Greek Colonels, Nicolae Ceausescu, Erich Honeker, Slobodan Milosevic, Saddam Hussein, and others—is a study both in politicized “law” and in each of the historic episodes surrounding the respective trials. Each chapter is in effect an historical essay of great interest.
A reader will do well to ignore an odd pacificity that Laughland introduces in his concluding section. There, he says “the goal of this book has been to show the constitutional questions raised by political trials, in particular that such trials are themselves political, not judicial acts….” His book has certainly made that point, but it surprises a reader when he goes on to state non-judgmentally that “the rules by which the new ruler adjudicates his predecessor’s acts can by definition not be laid down in advance.” This would seem to give carte blanche to victors, justifying what Laughland has by that time so thoroughly described as an abusive charade of law.
This is surprising because the texture of the book for hundreds of pages has belied this non-judgmental shrug. Each historic episode has demonstrated beyond peradventure how much “law” and “judicial process” can be used for sham adjudication and an exercise of raw power. The true subject-matter of the book is legal travesty. Almost invariably, the trials have been legally-accoutered lynchings, with high partisanship cloaked in the sophistries, pedantries and dramatic showmanship of what has ostentatiously been presented to the world as “judicial” proceedings. To point this out is not to say, of course, whether a given defendant “deserved” to live or die, any more than it is to say whether a given horse thief strung up in America’s Old West deserved to be hanged.
The best discussion of the ideal of “the rule of law” that this reviewer knows of is to be found in Friedrich Hayek’s The Constitution of Liberty. Hayek traces the ideal back to the Greek concept isonomia. The “rule of law” has in that historic sense not meant an abundance of law, but rather that law should itself conform to certain criteria that will assure its dependability as a guide to individual action and as a preventative to governmental abuse. The criteria are that the rules be general, applicable to all as norms going into the future; that they be prospective, not retrospective; that they be equal, in the sense that like situations will be treated alike (an idea that Hayek acknowledges has much ambiguity); that the rules be known or at least knowable to those who advise acting men, and this includes that they be clear in their meaning; and that the rules be applied by an impartial judiciary, which means by judges who have no other purposes in mind than the accomplishment of a rational, objective and non-partisan application.
During much of the twentieth century in the
, “legal realism,” “legal positivism” and “sociological jurisprudence” ridiculed these criteria as far off the mark so far as how a legal system works in practice. As parts of the ideology of the American Left, these schools saw considerable tactical benefit in undermining the criteria so as to cut the country free from the Constitutional restraints that had checked the early New Deal in the 1930s and so as to allow government broader latitude for the administrative discretion they desired. But even though the American Left had such ideological motives for criticizing the “rule of law” criteria, that does not mean that others are enjoined from themselves seeing how far law-in-practice deviates from the historical ideal. This reviewer dares to surmise that anyone who has practiced law at either the trial or appellate court level (or both) will know all-too-well how much adjudication often amounts to an exercise in capricious choice and how often it has a low quotient of true ratiocination. And this is in ordinary matters, by no means limited to politically charged world-historic events such as the trials of kings and dictators. United States
Those of us who see value in the “rule of law” ideal, hoping to see the criteria implemented as far as human beings are capable of doing so, are dismayed by how far established legal institutions depart from them. We are bound to be dismayed all the more when the pomp and circumstance of legal procedure is used in a highly visible area as a cloak for pure sham, making it into something it was never intended to be while at the same time being put forth to the world as “law as it should be.” In the book under review, Laughland has not included a chapter on the Moscow Show Trials under Stalin (preferring to limit himself to the trials of heads of state), but those trials come to mind as the sort of sham we are speaking of: verbiage, loquacity, pedantry, extreme partisanship, ideological sophistries: all followed by a bullet in the back of the head.
Laughland makes the point that the great political trials, especially of heads of state, have had two distinctly political and interrelated purposes: to legitimize the new regime by delegitimizing that which preceded it. He calls this “transitional justice.” Show trials staged as propaganda vehicles, allowing only one side of a complex historic situation to be presented, and driven into the public consciousness by a highly partisan and often censored media won’t (or shouldn’t) be persuasive to objective observers or to scholars of the future. But they are thought rightly by practical men to be politically efficacious. Sometimes they add to the intimidation under a reign of terror. On other occasions they help mobilize an impassioned public that is prone to accept a victor’s superficialities as revealed truth.
In what follows, we will see some of the ways (among many) that Laughland exposes by which the ideal of law has been abused in political trials:
Neutral judges are assiduously avoided, even though they are imperative under the “rule of law” criteria. None of the judges in the trial of the leading Nazis at Nuremberg were neutral, of course, but it illustrates the venality of the judging to note that the Soviet judge was General Ioan Timofeevich Nikitchenko, who had been “one of the judges at Moscow’s notorious show trials, sentencing Zinoviev and Kamenev to death in 1936.”
For the trial of Saddam Hussein, Paul Bremer, head of the Occupation Authority in
, provided in Article 33 of the court’s founding statute that “no one who had ever been a member of the Ba’ath Party could serve as an official of the tribunal.” This, Laughland says, “ensured that the tribunal would be stuffed with Saddam’s enemies.” Iraq
Fraternizing between judges and prosecutors; and judges who act like prosecutors. Laughland points out that before the main
trial “the preparatory London Conference was attended by judges and prosecutors alike: Nuremberg became a prosecutor but the Soviet and French delegates became judges.” When the Czechoslovakian Communists tried Monsignor Jozef Tiso after World War II, “presiding judge Igor Daxner acted like a prosecutor, bullying witnesses and humiliating the defendant.” Jackson
Selective prosecution is inherent in such trials. Only the losers in a conflict are pursued, and no examination of the winning side is allowed, either in defense of charges against it or as an exculpatory explanation of the circumstances that might be taken to justify the defendants’ own actions. An obvious example is seen again at the main
trial. It simply illustrates the overall immunity the Allies granted themselves to note that the Nuremberg Soviet Unionwas among those sitting in judgment even though it was “guilty of exactly the same crimes against peace as the Nazis.” [Recall that Stalin joined Hitler in invading (including Poland West Belarus) in 1939, and then assaulted the Baltic republics and .] “They were also guilty of numerous atrocities, most famously the mass slaughter of Poles at Katyn” [a slaughter that the indictment dishonestly charged against the Nazis]. Finland
Another of many possible examples: The jurisdiction of the International Criminal Tribunal for Rwanda (ICTR) was defined in such a way that only the Hutus could be charged with genocide, whereas Laughland’s broader history shows the Tutsis also to have committed mass killing.
Guilt is often proclaimed ahead of trial. By Article 231 of the Treaty of Versailles, “the Kaiser’s guilt was proclaimed in advance,” with the effect that “the purpose of the ‘trial’ [was] only to decide on a suitable sentence.” [As it turned out, there was no trial, the Dutch refusing to extradite the Kaiser.]
The defense is encumbered in countless ways. Before the trial of Louis XVI, revolutionary tribunals condemned to death a number of the king’s potential defense witnesses. In the trial of
’s Vidkun Quisling in late 1945, “Germans who might have appeared as defence witnesses were never called.” Sometimes, defense lawyers are assassinated, as during the Saddam trial. Norway
Extensive documents may be withheld from the defense attorneys until right before trial, so that they have no time to prepare, as occurred in the Honecker case when “13,000 pages of Prosecution documents… were handed over to the Defense only a short time before the trial began.” In the Quisling prosecution, “much of the trial consisted of [the judge] reading out incriminating documents which had not been given to Quisling or his lawyers in advance.”
The international tribunals for both
and Yugoslavia have relied “heavily on anonymous witnesses,” effectively denying the defense’s right to cross examine (which, we recall, Dean Wigmore, Rwanda ’s renowned expert on the law of evidence, considered the most potent truth-discovering tool available in a trial). When President Alfonsin of America was tried, meaningful cross examination was denied when the prosecution used activists as “experts” who testified to events they had not witnessed themselves. Argentina
trial, “judicial notice” was taken of the “fact of genocide.” By treating the issue as indisputable, the court removed any right of the defense to controvert it. Rwanda
Sophistries introduce a surreal reality. Consider the following thinking in the trial of Jean-Paul-Akayesu, a Rwandan schools inspector and mayor, for genocide and crimes against humanity: “The ICTR [the Rwandan tribunal] ruled that no corroboration was needed for allegations of rape; that hearsay evidence is admissible; that it does not matter if witnesses’ written statements differ from their testimony in court; and that inconsistencies in witness testimony can be explained by trauma… The reasoning… is fatally circular: if a Prosecution witness’s testimony is contradictory, this is adduced as evidence that he or she was a victim. Inconsistency becomes proof of credibility….”
We see how thick the intellectual dishonesty can be when we find, as in the Quisling case, that “the court convicted [the defendant] of things which had not even been mentioned in the indictment.” At
, “the relevant charges against the German admiral, Karl Doenitz, were simply dropped” when “the American admiral Chester Nimitz sent a note to the judges saying that the British and American navies had waged naval warfare in exactly the same way as the Germans.” Nuremberg
Extradition occurs in violation of national law. The removal of Slobodan Milosevic to
for trial provides an example. “Although Yugoslav law, like the law of many states, did not permit the extradition of its nationals to other jurisdictions, although the Yugoslav parliament had rejected a bill to change the law to allow it, and although the Yugoslav constitutional court had issued an injunction against a decree passed by the government of the Republic of Serbia to enable Milosevic to be transferred, the Serb prime minister, Zoran Djindjic, ordered his police simply to take the former president out of prison and bundle him into the helicopter bound for Bosnia and The Hague.” The Hague
Trial records are manipulated. Following the trial of the Greek Colonels, “the trial record was destroyed after six months… All records of that trial have simply been dropped down the memory hole.”
trial of the main Japanese war criminals immediately following World War II, “the judgement of the tribunal was not published in full until 1977, and the complete proceedings of the trial not until 1998.” One of the judges on that tribunal (Henri Bernard of Tokyo ) “published his dissenting opinion because he was angry with his fellow judges for announcing their verdict in the name of the whole tribunal instead of in the name of the majority alone.” And France ’s “Radhabinod Pal’s long and forceful dissent was not included in the trial record either and he had to publish it himself privately in India in 1953.” Calcutta
Laughland points out that in the Milosevic trial “you cannot tell that he [a prosecution witness] made [an] astonishing admission in open court from reading the transcript, because the relevant passages have been censored.” And Laughland speaks, in the context of the
and Yugoslavia cases, of “the widespread use of in camera sessions, in which what has been said in court is simply secret.” Rwanda
This list is merely illustrative. Laughland’s history is replete with denials of due process, many of which we do have not space to mention. As Laughland says, the trials are political, not really judicial, acts. It is an interesting commentary on human nature that such a procedural charade is indulged in. Thousands of pages of witness testimony, other thousands of pages of documents, and hundreds of pages of written “judgment” are piled up even though the public for whom the show is put on cannot possibly read any significant part of it. What the public knows is what the propaganda from the victors wants it to know. And yet there is a felt need for elaborate word-spinnings, for seemingly learned arguments over this and that point of law, and for the solemnities of judgment. It would all be a fit subject for a satirist such as Antoine de Saint Exupery, author of The Little Prince, or a Mark Twain.
Although the theme of legal charade unavoidably gives the book much of its significance, there are other valuable features. One of these is Laughland’s commentary on a conceptual shift of the most profound sort: he speaks of a trend toward “supranational political and judicial institutions.” There is, he says, “a highly ambitious international political project involving the creation of a new supranational jurisdiction and new law—a new right to rule.” The idea of an “international community” has come more and more to entail “a struggle against sovereignty.” The goal of international human rights activists has been punishment, not magnanimity; and the “universalist principles” enunciated during the French Revolution have led to Manichaean perceptions of the world, with appeals to absolute values that portray enemies in moral and even theological terms. “Indeed,” Laughland observes perceptively, “it was only on the basis of an appeal to such absolute values that the seemingly limitless killing of the Great War [World War I] could be justified.”
The principle enunciated (however hypocritically) at
was that “aggressive war is the highest crime.” Laughland sees a recent seismic shift from this: “NATO’s attack on Nuremberg [over Kosovo] was precisely intended to overthrow [the earlier rules] and replace them with new principles which would permit what had previously been solemnly forbidden… Now the NATO powers were determined to show that [war] could instead be the instrument of the highest morality.” He points out that “supporters of international humanitarian law have always energetically insisted that their ‘just’ wars are preferable to an ‘unjust’ peace. In the face of what they say is aggression, they denounce peace agreements as ‘appeasement.’” Yugoslavia
The result is a shift of power to the international level. Laughland rightly sees that this is a move away from democratic control: “International tribunals have no ‘citizens’ at all. They are subject to no system of political accountability which ties their actions back to the people over whom they have jurisdiction.” For his part, Laughland much prefers a more decentralized spreading of power: “National tribunals are preferable to international ones because they are more deeply embedded in the national culture of the country concerned.” (We might of course observe that, as his book so well illustrates, neither level of tribunal prevents a Manichaean treatment of enemies as evil or avoids the blatant abuse of legal forms.)
At the same time, he says, this new internationalism lacks intellectual coherence, leading to some strange double standards. A good example is provided by the breakup of
. The “world community” (in this case, the European Union and the United States) insisted that Bosnia come together as a multinational state, even though Yugoslavia’s attempt to retain its multinationalism as against ethnic separation was considered intolerable. As with all such double standards, it all depends on “whose ox is gored.” Yugoslavia
As we saw earlier, Laughland concludes in a strangely non-judgmental fashion that leaves it to readers to ponder (as they should) what alternative would be best in place of legal sham after a radical change of regimes. One thing seems clear: that the accoutrements of law should be left out of it. Might it not be best if the decision for punishment (or magnanimity) were made as an explicitly political decision, so that those who make it can be clearly accountable for it? This would not eliminate violent passion, the need to delegitimize and in turn legitimize, the role of propaganda, and the like—but it would eliminate one element of dishonesty and would more allow an appreciation for law as best conceived.
It may be asking more than humanity is ever willing to allow, at least during the century that follows a conflict, but perhaps wiser heads someday will see the value of encouraging honest debate and evidence-gathering among independent historians. That would be the route to an objective historical judgment, something for which courts in either adversarial or sham proceedings are ill-fitted. I almost wrote a suggestion that “an international panel of historians” be convened for such investigations, but thought better of it when I considered how abused that could be. It is all best left to incorruptible scholars, acting independently, such as may exist.
Dwight D. Murphey