Despicable pictures and vivid proof of Saddam Hussein’s long history of mass murder and systematic torture of his own people and his political opponents continue to appear in the world media. Many demand that Saddam and high-ranking officials in his regime be put on trial and executed.
This has happened before. After World War II, the Nuremberg trials of the Nazi criminals set a precedent that individuals who directed war crimes from political or military headquarters would be responsible for their actions AND the actions of their subordinates. Previously, the only people prosecuted were those who planned and directed atrocities at the crime scene. At the time [late 1940’s], many legal observers, especially Germans, considered all of this to be victors’ justice --- where the winners set up a kangaroo court to kill the losers.
That was not what happened.
The best, accurate portrayal of the Nuremberg trials that I have seen is Joseph E. Persico’s book, Nuremberg: Infamy on Trial. An excellent movie based on the book, entitled “Nuremberg”, featuring Alec Baldwin and Christopher Plummer, is in video and available in rental stores. U.S. Supreme Court Justice Robert Jackson [Baldwin] is the movie’s hero and driving force. Justice Jackson is similarly portrayed to a lesser degree in the book. Certainly Jackson’s opening statement is one of the most powerful at any trial anywhere. The following excerpt highlights the gravity of the process:
“ The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That the four great nations, flushed with victory and stung by injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to Reason.
“This tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of seventeen more, to utilize International Law to meet the greatest menace of our times, aggressive war. The common sense of mankind demands law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of the magnitude that the United Nations will lay before your Honors.”
The major objection to the trials was that they were ex post facto law. William L. Shirer in his book, End of Berlin Diary, considered these criticisms as hair splitting legalisms. He said that murder has been against the law since Cain and Abel.
Der Spiegel, a major German news magazine, pointed out an even more serious flaw: allowing the Soviet Union to have judges at the trial. Since Stalin was a willing partner with Hitler until June 21, 1941, it was inconsistent that the Russians be included in the judiciary.
In the 21st century, the Nuremberg Trials still hold the premise that people are responsible for their actions and the actions of their subordinates. There is an increasing feeling that national boundary lines are no protection for those who commit environmental crimes or violate human rights. However, instances of overwhelming military victory are seldom. The Reconciliation Commission in South Africa may offer a better model where an admission of guilt with repentance would be enough to satisfy the survivors.
There is another perspective to consider. As pictures of U.S. soldiers in uniform torturing and sexually abusing naked Arabs in military prisons continue to flash on television and internet screens across the world, the abuse victims, their families and human rights groups increasingly are demanding that the American military brass and high-ranking U.S. government officials responsible be prosecuted under international law.
Sometimes what goes around, comes around. International law and the Nuremberg precedents apply to winners as well as losers.
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Copyright © 2005 Ed O'Rourke, P.C.
Last modified: 04/19/2007