JURIST Guest Columnist Lawrence Douglas
, Professor of Law, Jurisprudence and Social Thought at Amherst College, says that the trial of Saddam Hussein must not only do justice, but show that justice is done, and wonders whether the relatively-inexperienced jurists of the Iraqi tribunal will be up to the task...
ow much better a trial before an international tribunal would serve the interests of justice! Such a trial would quiet the charges of partisanship. Such a trial could not be dismissed as a blatant exercise in nation-building. And absent the possibility of capital punishment, such a trial would be free of the flavor of tribal vengeance.
Much as these might sound like the familiar criticisms of the trial of Saddam Hussein scheduled to begin October 19, they are, in fact, the arguments that were directed at the 1961 Israeli trial of Adolf Eichmann by none other than Telford Taylor, the famous Nuremberg prosecutor.
The Eichmann trial aroused such controversy in part because it explicitly acknowledged its didactic purpose. In his memoir, chief Eichmann prosecutor Gideon Hausner candidly admitted that the prosecution had aimed not merely to secure a conviction, but to tell a story that would capture the imagination and conscience of a domestic Israeli and world audience. That the trial took place in a municipal theater hastily retrofitted to serve as a courtroom perhaps only underscores the complex ways in which an explicitly didactic logic informed the Eichmann trial’s staging.
Yet the Eichmann trial was not unique in this respect. All the most famous war crimes trials – from Nuremberg to the Milosevic case – have served didactic ends. Following in the wake of episodes of mass atrocity, these trials placed courts in the position both of exploring the larger sweep of history and of making visible the value of the law as a tool of such inquiry. Staged to vindicate the rule of law, these trials also demanded that courts give voice to the narratives of victims and clarify the terms of a contested or suppressed history. It is hardly a surprise, then, that war crimes trials have been pilloried as everything from acts of victor’s justice to spectacles for public consumption.
Indeed, the tensions between the need to make visible the rule of law and the desire to use the trial as a tool of teaching history have led some to insist that the just didactic
trial is something of an oxymoron. Hannah Arendt argued in her famous critique of the Eichmann trial that the "purpose of a trial is to render justice, and nothing else." We must be wary, Arendt insisted, of using the trial to didactic ends lest these pressures turn the trial into a legal sham, a show trial in the old Stalinist sense.
Clearly this concern is important, yet in my mind it is overstated. No one, I believe, would deny that the core
responsibility of a criminal trial is to resolve the question of guilt in a procedurally fair manner. To insist, however, that the sole
purpose of a trial is to render justice, and nothing else, defends a crabbed and untenable vision of these special proceedings. In the case of spectacular war crimes trials, it is unrealistic to expect and silly to demand that the trial be conducted as an ordinary exercise of the criminal law. The question, then, is not whether the trial should be used for these larger ends, but how to do so responsibly.
This, of course, is the principal task now facing Iraqi jurists. Unfortunately, there is no simple recipe that can steer them to success. If experience teaches anything, it is that the problems posed by such prosecutions can only be surmounted by a delicate balancing act. On the one hand, the prosecution and court must from the outset prevent the defense from taking history hostage. Here the experience of the Milosevic trial offers a cautionary tale. An ambitious indictment charged Milosevic with international crimes in three distinct theaters – Croatia, Bosnia, and Kosovo. Such a strategy meant to do justice to the full sweep of crimes committed by the former Serbian president and his regime, but led to a bloated and unwieldy case that threatened to unravel altogether once the accused took over his own defense and demonstrated his gift for tendentious argument. Clearly the lessons of the Milosevic trial have not been lost upon the Iraqis and their American tutors. This summer the Iraqi National Assembly quietly amended the Charter of the Special Iraqi Tribunal (renaming it the Iraqi Higher Criminal Court) to eliminate any mention of a right to a pro se defense. The very decision to focus the first trial on a relatively minor act – the reprisal murders of 143 Shiites in Dujayl in the wake of a failed assassination attempt on Hussein in 1982 – also displays a clear desire to present a judicially manageable case, one that will not offer Hussein or his defense team the opportunity to drag American conduct into the courtroom and turn history into an ally.
Yet the very effort to render the trial manageable has its costs. By barring any mention of a right to launch a pro se defense (and let’s not forget Hussein’s training in law), the tribunal invariably invites charges of muzzling the defendant – a danger in a trial meant, first and foremost, to demonstrate that the fledgling regime is committed to the rule of law. The decision to televise the proceedings – a courageous and risky move – will only redouble the pressures on the Court to make visible the fairness of its procedure. If the Court is to survive such scrutiny, it must strive to legitimate itself in the eyes not simply of its supporters, but more crucially, of those who continue to support the accused. A bound and gagged Hussein will not serve this end.
Second, the effort to secure a narrow prosecutorial success may undermine the larger didactic purposes of trying Saddam in the first place. It remains to be seen, of course, whether this trial is only a prelude to others that will reach Hussein’s larger crimes. If so, a focus on the Dujayl slayings makes perfect sense as a preparatory step. If, however, the Dujayl trial ends in the former President’s speedy execution, the legal process would have dramatically failed to serve as a means of educating the Iraqi nation of the horrific crimes committed by a reprobate regime.
Finally, there are the questions regarding the quality of the jurists asked to preside over this historic trial. I recently attended a talk given by Michael Newton, one of the principal legal advisors to the Iraqi High Criminal Court. In speaking of the pending trial, Newton repeated one phrase time and again: “The Iraqis want to get things right.” No one could doubt Newton’s sincerity, but the question remains whether the desire to do right suffices. The Eichmann trial was fortunate to have Moshe Landau serve as the presiding judge. His quiet dignity, his scrupulous fairness to the accused, his impatience with the prosecution’s histrionic excesses, conferred gravitas and legitimacy upon the proceeding. At Nuremberg, lead prosecutor Robert Jackson’s stunning open address that frankly and eloquently addressed the charge of “victor’s justice,” also served to legitimate a deeply controversial and unorthodox prosecution. The Milosevic trial, by contrast, has suffered under the stewardship of presiding judge Patrick Robinson, a jurist of limited imagination and abilities who has not proved himself equal to the task assigned to him by history.
How then will the Iraqis fare? Many of the nation’s leading jurists were barred from participating in the Special Tribunal by the terms of the Charter that excluded former Baathists. In postwar Germany, many prosecutions of Nazi war criminals foundered because all too many judges were former members of the party. In Iraq, the very effort to cleanse the judiciary of Baathist influence has had the effect of placing the proceeding into the hands of neophytes whose every step – and misstep – will be displayed on a world stage.
No one can gainsay the courage of these jurists. We can only hope that they will master the delicate balancing act – between defending the rule of law and serving the larger interests of teaching history – that lies at the heart of the didactic trial. Lawrence Douglas is Professor of Law, Jurisprudence & Social Thought at Amherst College