The war crimes trial heritage

Paul Greenberg

April 19, 1991|By Paul Greenberg

WHO WOULD have thought it? Various foreign ministers of Europe -- the scene of this century's and perhaps history's greatest crimes against peace, against man and God -- now have proposed that Saddam Hussein of Iraq and infamy be tried for war crimes, particularly for his slaughter of the Kurds.

Europe, that most blood-stained of continents, has sent out a call and a PaulGreenberglight. There may still be much that the old world can teach the new. It need not remain simply an example to beware.

By all means, let this court be convened. There may be something of use and justice that the United Nations can accomplish besides playing the role of legal afterthought when menaced nations band together to squash some little Hitler.

Nor should Saddam Hussein be alone in the dock. All those responsible for the rape of Kuwait, for the destruction of holy places, for villages destroyed and an ancient people harried to exile and death . . . all those responsible should be in the dock with their leader. It would be the most impressive line-up since Nuremberg.

Speaking of war crimes, the one figure some of us would most relish seeing on trial would be that dapper, mustachioed type who interviewed the captured allied pilots over Iraqi television. You know, the voice of Saddam Hussein during the war. Let him now stand behind the words he broadcast. The world owes him.

Is it practical to pursue such a course? Ah, that is the question every priest puts to every prophet. Even if Saddam Hussein and deplorable company cannot be brought to trial, let the record speak. Let any sentences be handed down in absentia. Let all Iraqis -- victims and criminals and those who are both -- have this indelible sentence inscribed by the names of their leaders.

The most practical use for justice is as a preventative; think of the effect such a trial might have even now on those contemplating how much they can get away with.

At the time of the world's first war crimes trial, one of the few voices in this country to question its fairness was that of Robert A. Taft. It was one of his great moments, but of course Senator Taft had so many, almost always in defeat or isolation. He didn't have to open his mouth about the unfairness of Nuremberg in the midst of a world that had suffered so much and then was so carried away with victory and vengeance. This is what he said:

"In these trials we have accepted the Russian idea of trials -- government policy and not justice -- with little relation to Anglo-Saxon heritage. By clothing policy in the forms of legal procedure, we may discredit the whole idea of justice . . . In the last analysis, even at the end of a frightful war, we should view the future with more hope if even our enemies believed that we had treated them justly in our English-speaking concept of law . . . ."

Of course the late Senator Taft's reward for cleaving to principle was a torrent of abuse. The essence of his cry was that the Nazis were being tried ex post facto -- for something that had not been a crime and had never been punished before 1946: the making of aggressive war.

Now, however, there is a precedent -- Nuremberg itself. If those proceedings were dubious (Soviet judges sat on the panel, the ever-present ghosts of the Katyn massacre perched on their epaulets), the verdict at Nuremberg is now law as well as justice.

Any such trial must be fair -- scrupulously fair, eminently fair, mercilessly fair. If mercy is due, let it wait until after the verdict is reached. This trial must be just and seen to be just.

It must adhere to all the standards of Western jurisprudence, of what Robert A. Taft called Anglo-Saxon law. The defendants, for example, should be allowed to challenge the makeup of the court -- with challenges both peremptory and for cause. Oh, think of the harvest not only of justice but of irony:

Is our new friend, Syria's Hafez al-Assad, whose crimes against his own people rival Saddam Hussein's, going to send a distinguished jurist to this trial?

What about the Emir of Kuwait, who now has been restored to power so he can preside over the random murders of Palestinians left in his country?

Naturally the Soviet Union, that collapsing prison-house of peoples, will want to sit in judgment on those who reduced Kuwait to Province XIX of Iraq -- with special reference to the status of Latvia, Estonia, Lithuania, Georgia and Armenia within the Soviet empire and continuing cave-in.

No such judicial panel would be complete without a representative from communist China. (Pay no mind to the blood from Tiananmen Square on his robes.)

And shouldn't Kurt Waldheim be there as a guest of honor representing the newborn spirit of Austria and eastern Europe?

The defense attorney at these proceedings might even be allowed to direct an innocent inquiry to the American delegate about the whereabouts of the millions of red men that once inhabited this continent. What ever did happen to them?

Of course his bewigged Lordship, the delegate from the forcibly United Kingdom, will want to explain in detail the beneficences of British rule in Ireland.

And so illuminatingly on. Justice does not open the eyes only of the accused. Perhaps that is why it is meant to be pursued. Let justice roll down like waters and righteousness like a mighty stream, carrying away what it will. Then we may all see.


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