On 12 June, my latest book, A History of Political Trials from Charles I to Saddam Hussein will be published. The book was born out of one sentence written in the Introduction to my last book but one, on the Milosevic trial. There, I had written that the Milosevic trial did not break new ground, as supporters of the brave new world of international tribunals maintain, but that instead its precedents lay in the great revolutionary trials of the past. It was in order to examine those precedents more closely that I decided to look at all the trials of heads of state and government in history.
The story begins with King Charles I in 1649 and ends with Saddam Hussein, executed in December 2006. Or rather, it does not end with Saddam since there are currently two former heads of state on trial, Charles Taylor of Liberia and Alberto Fujimori of Peru. Meanwhile, the newly created International Criminal Court is happily issuing indictments to people accused of war crimes, most recently against the leader of the opposition in Congo. Indeed, all the indictees of the new ICC are Africans.
Various conclusions emerge from the historical account. The first is that, in three hundred years of trials of former heads of state and government, there has never been a single acquittal. The only former heads of state who have escaped conviction have been Erich Honecker, the former head of state of East Germany, and Slobodan Milosevic, the former Yugoslav president – the former by being about to die, the latter by actually dying while still on trial. The grim words of Danton to a French exile who returned from London to Paris in 1792 to help the defence of Louis XVI have been proved right: “Can one help a king who is on trial? He is dead as soon as he appears before his judges.”
The second conclusion is that all the trials have been rigged in one way or another. The most common form of rigging is by the use of retroactive legislation or retroactive jurisdiction: special laws are passed and special courts created in order to obtain the conviction of the defendants. It is also common for juries or judges to be politically motivated and therefore biased; indeed, it is common for there to be a political purge in advance of the trial to ensure the “right” outcome. The British House of Commons was purged by a military coup d’état in December 1648, known as Pride’s Purge, and only implacable opponents of the King were allowed to remain MPs and sit in judgement over him. Marshal Pétain’s jury was selected exclusively from members of the Resistance; the Iraqi judiciary was purges of all Ba’ath Party members before Saddam’s trial.
This inherent bias pertains even to that icon of war crimes trials, Nuremberg. I show in the book that Nuremberg was in fact only one trial out of many of former heads of state, conducted more or less simultaneously after World War II. Not only the German leaders at Nuremberg but also former leaders in France, Norway, Czechoslovakia, Hungary, Romania, Bulgaria, Greece and Finland were put on trial. They were all either imprisoned or shot. In all cases, it was the Soviets who were the driving force: they demanded war crimes prosecutions as a condition of the armistices they administered in Eastern Europe and, in countries where their political influence was weaker (Finland and Greece) the defendants got off relatively lightly. Where the Soviet influence was strong, they were generally executed.
The bias in Nuremberg was particularly disgusting because it is widely accepted that the Nazis did indeed commit horrific crimes against humanity. But they were not prosecuted for these, at least not principally, but instead for a new invented charge, that of waging aggressive war. Not only was this new principle invented for the purposes of creating a new international system (the United Nations) and for exculpating the Allies for their own violations of the laws of war and international law during the conflict, it has also proved to be a legal dead letter. Although I have much personal sympathy with the idea of outlawing aggressive war, history shows that it is legal nonsense. No one has been prosecuted for it since Nuremberg and Tokyo, and the crime of aggression has been quietly kicked into touch by the charter of the new International Criminal Court (which says it will have jurisdiction over it only when there is agreement on its definition, i.e. never).
I say that the bias at Nuremberg was disgusting because the collusion between the Western Allies and the Soviets was intense to ensure that their own war crimes never came under scrutiny. The Soviets demanded that the Nazis be prosecuted for the Katyn massacre of some 20,000 Poles because Goebbels had publicly accused them of guilt for it. The NKVD had, in fact, committed the crime but the Soviets wanted to blame the Germans instead and so the Western Allies obliged. But the collusion also led to real German crimes being covered up. This happened on two important occasions, concerning the war at sea and the war in the air. When the German admiral, Erich Raeder, was accused of waging unrestricted submarine warfare, his defence lawyers got his American opposite number, Chester Nimitz, to write an affidavit saying that the Allies had done the same thing. The charges were dropped. Similarly, the Germans were never prosecuted for the Blitz because the British and the Americans had won the war with terror bombing of German cities which made the Blitz look like a tea party. In other words, a German crime was not considered a crime if the Allies had committed it as well.
Today’s international tribunals are no less hypocritical and political than Nuremberg. Anyone who knows my writings on Slobodan Milosevic and the Kosovo war will know what I think about the Yugoslav tribunal in The Hague. But is the conclusion, then, that we should improve procedures are set up a truly independent court?
There are two answers to this question. The first is that we do have an excellent independent international court, the International Court of Justice, whose pedigree is impeccable (established as the high court of the United Nations in 1946, it is really the continuation of the Permanent International Court of Justice in 1920) and whose rulings are not only uniformly excellent but also completely incompatible with the post Cold War view that international law ought to be coercive. The ICJ has notably ruled illegal an arrest warrant issued by Belgium against the former Foreign Minister of the Congo, on the basis that one state does not have jurisdiction over an official of another state even for so-called “universal” crimes; it also posthumously exonerated Slodoban Milosevic in 2007 when it ruled that Serbia had not, after all, controlled the Bosnian Serb army and that Belgrade therefore did not bear responsibility for the Srebrenica massacre.
The second answer is connected to the first. The ICJ’s rulings are inspired by the law as it stands – as expressed by the United Nations charter, treaty law and customary international law. They are not inspired by legally nonsensical appeals to vague notions about human rights. The ICJ and the UN Charter are based on the view that it is best if states resolve their disputes peacefully and do not regard each other’s internal affairs as their own business. This is the principle which has come under sustained attack by the supporters of universal human rights and international criminal law.
When we look back over more than a century of international efforts to legislate on the laws of war, what do we conclude? Since the Russian Emperor, Nicholas II, convened the First Hague Peace Conference in 1899, the world has been plunged into conflicts far bloodier than those anyone could then have imagined. Total war and revolution have characterised the twentieth century. At some point, we have to ask: are these two facts connected?
I believe that they are – although I do not develop this argument this in my book. I believe that the criminalisation of the enemy makes war worse. In the classical tradition of international law, that which obtained in Europe from the end of the Thirty Years’ War to the First World War, the enemy was regarded as legal and justified. Defeated enemies were treated with courtesy – as witnessed, no doubt in an idealised form, by Velazquez’s beautiful depiction of the surrender at Breda in 1625. In the modern tradition, by contrast, born essentially in the First World War, the mentality of colonial and anti-insurgency war was applied to European conflicts. The enemy was demonised as an “enemy of humanity”, a “tyrant”, a “terrorist”.
No doubt such demonisation was needed in order to curry public support for the terrible bombing campaigns with which the Allies won their wars – the enemy needed to be de-humanised before he could be killed, in the millions, in fire-storms and ethnic cleansing. But this criminalisation makes the enemy into an absolute enemy, who must be destroyed and not just defeated, and that is why modern war is now invariably ideological, and always accompanied by regime change and revolution. The result is that the militant supporters of international criminal law prefer their “just wars” to an “unjust peace”, aggravating out of all proportion (as in the Balkans and the Middle East) wars which could otherwise be brought to a conclusion much more swiftly.
I very much hope that my book will make some modest contribution to encouraging people to reflect on the merits of renewing with this lost classical tradition.
