“Do you have a law certificate, and since when have you been recognized as a judge, after the occupation or before that?”
“Since the days of the previous regime and until now. The coalition authority asked me to hold this trial.”
“Then you are trying me by the order of the invasion forces. By what law are you trying me?
“I am trying you in accordance with the Iraqi law.”
“Then you are trying me by the law that I enacted…”
When defending Adolf Eichmann, lawyers for the fugitive Nazi began by questioning the right of an Israeli court to try him. The Serbian dictator Slobodan Milosevic, who is to present the case for his own defense next week, long ago called the U.N. International Criminal Tribunal in The Hague a “false tribunal.” So no one should have been surprised last week when Saddam Hussein’s first statements before Iraq’s special tribunal — quoted above — also turned the tables on his accusers, questioning the judge’s competence and the court’s legitimacy.
Hussein called the court a “theater” to help Bush in his election campaign. But Hussein himself was setting the stage for what could become, if care is not taken, a discredited trial. He is correct in implying that no judge can pronounce on his case with clear authority, and even evidence of his regime’s mass murders might not prevent him from achieving some sort of “victory.” Contrary to popular belief, nearly all war crimes trials have been conducted under a cloud of questioned legitimacy. They have succeeded or failed not because of the courts conducting them, but because of the politics surrounding them.
Look at the international military tribunal in Nuremberg that tried the Nazi leadership — the first such trial in the modern era and the one cited as a model. In fact, the four Allied powers that wrote the court’s ground rules called the rules a “charter” rather than a “law” to avoid the question of the tribunal’s precise legality. Much of the evidence against the defendants — among them Hermann Goering and Albert Speer — would have been inadmissible in U.S. courts. The chief Soviet justice had presided over Stalin’s show trials before the war. Yet the trial was a success in Germany. Through careful questioning and presentation of evidence, the Nuremberg prosecutors not only forced the German people to hear the whole truth of the Holocaust and Nazi rule, they put an end to the dreams of Nazi revanchists and legitimized the postwar German leadership.
By contrast, those who organized Milosevic’s trial did so under U.N. auspices, using what they thought was the best possible international law. The judges have been people with vast international experience. The atrocities committed by Milosevic’s army are well documented. Nevertheless, the trial has not had the expected impact in Serbia. Because it is taking place in The Hague, the Serbs have dismissed it as irrelevant. Milosevic has also been allowed to hijack parts of the trial, lecturing the court for hours on end, delaying proceedings even this month by claiming illness. Partly as a result, Milosevic’s peculiar form of paranoid post-communist nationalism isn’t dead yet either: One of his supporters lost Serbia’s most recent presidential election by a surprisingly narrow margin.
Since the first hearing last week, many have found aspects of Saddam Hussein’s trial troubling. Human rights groups feel excluded by the overly secretive proceedings; international lawyers complain that neither Hussein nor his henchmen have had access to counsel. Some believe the appointment of Salem Chalabi, nephew of the mysteriously disgraced ex-U.S. ally Ahmed Chalabi, “politicizes” the trial.
In the end, though, the success of the trial should not be measured by abstract “international” standards, nor by whether it convicts Hussein, which presumably it will. In the end, the trial will succeed only if prosecutors use their court time to narrate the true history of Iraq, if they do so in a way that is convincing to Iraqis, and if by doing so they eliminate the dictator’s remaining influence in Iraq and in the rest of the Arab world. A neutral international court would not necessarily achieve those aims any better than Iraqis.
But acceptance of Iraqi leadership does not mean that the traditional American slide into amnesia and indifference can now begin: The Iraqis require assistance with forensic investigation, training and archives, particularly with documents controlled by U.S. intelligence, much of which has been promised but has been slow to arrive. Now is not the time for the Iraqis to become overprotective about “their” trial either: International involvement in the investigation will help bolster the authenticity of the evidence in Iraq and elsewhere.
Unless both Americans and Iraqis make this trial a priority, it could fail, with disastrous consequences for the new Iraqi government. Saddam Hussein’s sarcastic court appearance should serve as a wake-up call: Even when the fighting stops, the war in Iraq can still be won or lost in the courtroom.