When Mohammed al-Ureybi, the presiding judge at the trial of Saddam Hussein, started reading out that the court sentenced Saddam to death for killing 148 inhabitants of the Shiite village of Dujail in 1982, Saddam interrupted him. Just as the learned judge got to the part about the punishment for ‘crimes against humanity’, the deposed tyrant shouted, ‘Down with the traitors! Down with the invaders! To hell with your articles and your clauses!’
It is not how a man accused of crimes against humanity is supposed to react to a guilty verdict. According to the ideals of international law, he is supposed to accept his own guilt and bend his head in shame. Saddam didn’t even recognise the legitimacy of the court. He was supported by the UN’s Working Group on Arbitrary Detention, which in September concluded that Saddam was not getting a fair trial and that his deprivation of liberty was ‘arbitrary’. The UN Working Group did not advocate his immediate release. It advocated the replacement of the Iraqi court by ‘an international tribunal’ — a step which has the enthusiastic endorsement of most of the world’s fast-growing population of international lawyers.
The trials of Saddam Hussein (one is still in progress) have certainly not been a paradigm of fairness. The prosecution does not have to prove the case against him ‘beyond reasonable doubt’, but only ‘satisfy’ the judges that he is guilty. In September the then chief judge in his trial for genocide was removed because the Iraqi government felt he was ‘biased towards Saddam Hussein’. While the offending judge did indeed tell Saddam that he ‘was not a dictator ...he only looked like one’, his ‘bias’ seems to have had no effect whatever on tilting the procedures of the court in the tyrant’s favour. He would not even let Saddam’s lawyers interview witnesses independently. His lawyers complained about that — which was about the time that three of them were murdered.
It is difficult to see how Saddam’s trial amounts to ‘a milestone in the Iraqi people’s efforts to replace the rule of a tyrant by the rule of law’, as President Bush put it, still less to ‘absolute proof that you have got an independent judiciary in Iraq’, as Bush’s spokesman claimed.
But would an international tribunal have been any better? International lawyers insist it would. The evidence, however, is against them. The international tribunal which tried Slobodan Milosevic, ‘the Butcher of the Balkans’, spent several years getting nowhere, as Milosevic successfully made a mockery of its cumbersome, complex and painfully slow procedures. He died before the court could pronounce its verdict, but even if he had lived, few people would claim that the torrent of incomprehensible verbiage and jargon that characterised the trial amounted to a ‘beacon of justice’. Was Milosevic getting a fair trial before he died? I doubt if anyone actually knows. Fewer still care. By the time he died, interest in the court’s proceedings was close to zero. Its meanderings hardly ever made it on any news medium anywhere, including Serbia.
The international tribunal set up to deal with those guilty of committing genocide in Rwanda was even less satisfactory. The UN Security Council voted to set up the tribunal in 1994. Rwanda, which happened to occupy one of the rotating seats on the Security Council at the time, was the only country to vote against it. The Rwandan government was furious that the tribunal could not impose the death penalty. Many ordinary Rwandans felt it was a travesty of justice that the leading perpetrators of the mass killings would, if convicted, end up serving sentences in a Swedish jail where they would be very well fed, have access to gyms, TVs, videos, recreation ...in short, a far higher standard of living than most of those survivors of the genocide whose relatives the killers had hacked to death. Rwandan suspicions about the injustice of the UN tribunal were confirmed when a senior judge on it resigned, saying that ‘The UN has not understood what a court is. Those who accept bribes and embezzle money are promoted. Of 500 employees, just 20 are lawyers, and only half of them are involved in trials. We don’t even have a reference library. Nothing of our efforts is passed on to the Rwandan people.’ This was a year after a report by the UN Inspector General said that there were ‘serious operational deficiencies in the management of the tribunal. Not a single administrative area functions efficiently.’
Some of the tribunal’s verdicts were shocking. For instance, the Tribunal Appeal Court ordered the immediate freeing of Jean-Bosco Barayagwiza, one of the highest-ranking architects of genocide, on a technicality before he was even tried. The tribunal’s judges reversed that decision, but only because the Rwandan government severed all links with the tribunal the moment it was announced.
Even the Nuremberg Military Tribunal after the second world war was actually very far from being the paragon of justice it is so widely assumed to have been. It did not accord with the fundamental principle of justice — ‘treating like cases alike’ — because the Soviet Union was guilty of crimes as appalling as those of many of the Nazis standing trial; but the Soviets were on the winning side, so they were not in the dock. The indictment of ‘conspiracy to wage an aggressive war’ was also hypocritical: as one Foreign Office adviser noted just before the first trial was due to start, ‘up until September 1, 1939, His Majesty’s Government was prepared to condone everything Germany had done to secure her position in Europe’. The court’s procedures were transparently skewed against the defendants. Any trial today which followed Nuremberg’s processes would be denounced by the human rights brigade as ‘unjust’ and ‘unfair.’
The myth of Nuremberg’s ‘perfect justice’ has created a misplaced faith in international tribunals to bring genocidal criminals to justice. In fact, it is doubtful whether any human institution can perform that role. It is not even clear what ‘justice’ involves in cases which are so far beyond the sort of situation with which the criminal law was designed to deal that its application no longer makes much sense. Dhiren Barot, the would-be terrorist who planned to plant bombs on the Tube, was sentenced to a ‘minimum of 40 years’ last Tuesday. If 40 years is a just punishment for attempting mass murder, what is a just punishment for a man who actually commits it?
The impossibility of providing an answer to that question is one reason that the British had to be bullied into accepting the Nuremberg Military Tribunal: Churchill originally wanted the leading Nazis to be summarily executed. ‘The guilt of such individuals as Himmler,’ said Anthony Eden, then foreign secretary, ‘is so black that they fall outside and go beyond the scope of any judicial process.’
A trial is better than summary execution — but you can see Eden’s point. Because there is one thing that is even worse than summarily executing a former head of state who is a genocidal killer, and that is letting him go free. That, of course, is precisely the option which a ‘fair trial’ has to keep open, and it is why the trials of genocidal killers are not, and should never be, fair. ‘To hell with your articles and your clauses!’
Alasdair Palmer is public policy editor of the Sunday Telegraph.