Sunday, March 12

Farewell, Slobo

Well, Slobodan Milosevic was found dead in his cell. An ignominious end to a shabby affair. No tears will be shed for Slobo (outside Serbia, at least). In fact, the only people expressing any regret at his death are his prosecutors—those legal carnies presiding over the International Criminal Side Show. What a colossal waste of time and energy. Milosevic’s prosecutors sound particularly aggrieved by his death. U.N. prosecutor Carla del Ponte’s regretted that “It deprives the victims of the justice they need and deserve. What they are asking for is that justice be done, and now it will not be possible.” She should blame herself. This show trial has dragged on for almost seven years since Louise Arbour’s 1999 indictment. Seven years! The prosecution claims that they were mere weeks away from wrapping up the trial. Don’t believe it. They’ve frittered away years building a case against a man that every Western leader has proclaimed guilty since the 1990s.* Their failure to secure a conviction within a year was the worst prosecutorial incompetence since the O.J. fiasco—and Milosevic’s prosecutors didn’t even have to deal with a fickle jury. Even supporters of these tribunals, like Human Rights Watch, have been sharply critical of the conduct of Milosevic's trial. Ms del Ponte should be grateful—Milosevic’s too-timely end gave his victims the one thing that the International Criminal Tribunal for Yugoslavia was not empowered to offer—his death. Sic semper tyrannis.

Like all political trials since Nuremberg, this was a stitch-up job from the beginning. (The fact that several Nuremberg defendants were actually reprieved only shows how far the four powers overreached in their ad hoc prosecutions, but there was never any doubt that Goering (or Hitler, had he lived) was going to be hanged.) Even when Goering—that effete, aristocratic dope fiend—cut and thrust his way through Jackson’s cross-examinations, toying with the former Supreme Court Justice like a cruel, Bavarian moggie with a befuddled Yankee country mouse, there was no doubt that the judges, already had their black caps at the ready. There was some doubt whether the Milosevic prosecution was going to be able to prove genocide (Milosevic was not the overt racist that Mladic and Karadzic were/are), but no doubt that he would be found guilty of some high crime and sentenced to life in prison. Any other result would have been damaging to the U.N./E.U.’s goal of establishing an International Criminal Court; and what these anti-democratic organizations want, they get.

Nor is there any doubt that Saddam Hussein will be shot, hanged, or otherwise forcibly shuffled off this mortal coil. (Assuming that the court is able to conclude proceedings before all-out civil war erupts.) Such is the fatal paradox of political trials: Can a court dispense justice when it is convened to convict and not to try with the possibility of acquittal? And, if a court could possibly acquit a Hitler or Saddam, can it be tolerated? The American soldiers who captured Saddam did the world a great disservice by not shooting him in his hole. “Shot while trying to escape” was, I believe, the useful WWII euphemism.

Nuremberg has much to answer for. Churchill and Lord Simon were set on summary executions for responsible officers and party officials, with one-day military trials to establish identity, not guilt, and Stalin favored “liquidating” 50,000 German Nazis and sending several million able-bodied Germans to Russia and France to work as compensatory slave labor. Even FDR agreed that the mass-slaughter of the German command was the best course, and favored the infamous Morgenthau Plan to reduce Germany to a 19th Century agrarian society. Curiously, it was Stalin who, in the end, changed his mind and insisted that executions be preceded by judicial process (“no doubt on the Soviet model” as Lord Simon dryly observed, no doubt referring to the 1943 Kharkov show trials). After Quebec and Yalta, as the Americans also came round to the idea of formal trials with accompanying legal process, even future head-prosecutor Justice Robert Jackson objected that: “If we want to shoot Germans as a matter of policy, let it be done as such, but don’t hide the deed behind a court. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.” He would later add that “if these persons were to be executed, it should as the result of military or political decisions.” Eventually, however, Jackson would take the central role in drafting the London Agreement—that act of Himalayan hubris, which vainly sought to criminalize the very act of waging war, and which has led inexorably to Slobo’s ignoble death in his cell and Saddam’s harangues to the Iraqi court (as well as his patriotic appeals to his former subjects, which threaten to inspire his loyalists much as Goering’s perorations lifted the hearts of German prisoners of war listening to the live broadcasts of his examination).

But even while Jackson was flying the American delegation to Nuremberg and engaging in those interminable meetings with the British (amiable and accommodating), French (truculent), and Russian (mercurial when not outright obstructionist) delegations, leading members of the Senate and the American Bar, including Justice (soon to be Chief Justice) Hugo Black were harsh in their condemnation of what was (rightly)* perceived to be a rigged political trial. Senator William Fulbright did not believe that there was any law of war under which the accused could be tried, and so argued that “[t]herefore they must be executed forthwith as a political decision.” Presciently, he further objected that “[a] trial means delays – and it means giving the defendants a chance to tell their stories to the world.” Would that Milosevic’s and Saddam’s prosecutors had listened to the good Senator’s counsel. Justice Black’s concerns were less about the speedy elimination of the Nazi leadership and more about the integrity of the legal process: “it would not disturb me greatly if the power of the Allies was openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime.” Even the mainstream press, now so pious in their concern for military due process when it can be used to unsettle the current administration, asked “what we are waiting for to shoot Hermann Göring?” And a Gallup poll in May, 1945, showed two thirds of the American public favored executing Goering without trial.

The main arguments in favor of political trials are that summary executions look too much like victor’s justice, and that the example of the rule of law in formerly lawless societies is ameliorative in itself. The response is that such trials are also victor’s justice—there is no hope of acquittal if done right—and that such legal predetermination undermines the ideal of the rule of law. Once it is decided that enemy leaders should be killed or otherwise punished, the judicial process is inappropriate for carrying out that end. The judicial process, once infected with politics, is not easily cured; its health is better served by preventative inoculation and quarantine. Finally, such trials simply take too long. They drag on for years and the world moves on. When it comes to executions, the best rule is: “If it were done when 'tis done, then 'twere well It were done quickly.” The death of Mussolini, machine-gunned by partisans and hanged by his feet, is the model. The extent of any judicial involvement should be to identify the accused, read the bill of charges against him, don a black cap, and solemnly pronounce his sentence. By this rule, Saddam should have been hanged within 24 hours, and his bloodied, bearded head left to rot on a pike in central Baghdad, and not permitted to preen for the court cameras, insult his judges, and encourage his Ba’athist loyalists.

And Slobo would have been dead or exiled long before this sorry weekend.

Meanwhile, the International Criminal Court has yet to hear its first case. Here's to keeping it that way.

* There is some controversy over the historical record of Milosevic's crimes. The Wall Street Journal (by the pen of murdered journalist Daniel Pearl) and The Guardian have both shown that the genocide charge, in particular, is difficult to sustain (though the definition of genocide in these ad hoc tribunals has proved quite maleable over the years). Other charges, however, should have been easy enough to prove.

** Among the (often necessary) biases in the proceedings were the court’s: disregard for the rule against ex post facto prosecutions; refusal to let the accused present a tu quoque defense (almost every charge against the Germans could have been leveled at Churchill, Truman, or Allied generals); unbalanced rules with respect to the presentation of opening and closing statements; denial of defendants’ lawyers access to potentially exculpatory documents; and close association with the prosecution (the Russian judge Nikitchenko was the chief Russian prosecutor, involved in framing the charges and selecting the accused, until he was elevated at the last minute to the role of judge).