Infamy on Trial
What happened to toppled leaders and war criminals of the past?
Asked about the fate of Saddam Hussein this week, President Bush said, "We want the world to say . . . he got a fair trial. I've got my own personal views of how he ought to be treated, but . . . my personal views aren't important." Heads of state haven't always been so discreet. In 1943, Joseph Stalin proclaimed that "50,000 and perhaps 100,000 of the German commanding staff must be physically liquidated," for their roles in World War II. Franklin Roosevelt jokingly replied that 49,000 executions would suffice.
While codes regulating wartime conduct date to Greco-Roman times, when tactics like the poisoning of wells were prohibited, it was only at the dawn of the 20th century that such rules were codified in international law. Indeed, the expectation for dictators like Saddam Hussein to stand trial is a relatively recent phenomenon.
As recently as 1815, the British government simply exiled Napoleon--who'd pillaged much of Europe--to the remote island of St. Helena, rather than heed calls from the masses for harsher punishment. But by the close of World War I, the victorious Allies couldn't ignore public demands for justice against the Germans. Invoking the first war-crimes conventions of 1899 and 1907, an international tribunal was established by the Treaty of Versailles. The United States vigorously opposed the tribunal, fearing its implications for American sovereignty. So the Allies resorted to trying suspected war criminals at Germany's high court in Leipzig.
"Flop." With no international oversight, Leipzig won a reputation for acquittals and light sentences. "Many in Germany were saying, `Why are our guys getting hauled off and not the Allies' guys?' while the Allies wound up feeling impotent," says Gary J. Bass, author of Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. "It was an all-around flop." The Turks, meanwhile, opened a tribunal for the perpetrators of the 1915 Armenian genocide, which left a million dead. The trials ended when Kemal Ataturk, future founder of modern Turkey, kidnapped a handful of British soldiers and demanded the release of their Turkish prisoners. A string of assassinations claimed three suspected Turkish perpetrators soon after.
At the end of World War II, Roosevelt, his own mind changed, persuaded Churchill to abandon summary justice and try Nazi leaders at Nuremberg, in a truly international tribunal. This time, the judges were selected by the victors: the United States, Britain, Russia, and France. The Allies "wanted to send a signal to the publics of Axis states that this was going to be the last war of its kind," says University of Texas School of Law Prof. Steven Ratner. "By holding leaders accountable, they'd prevent future wars." In less than a year, the court tried 22 accused Nazis, sentencing a dozen to death. Unlike the WWI tribunals, Nuremberg didn't accept the "just following orders" defense. Says Ratner: "Nuremberg was the starting point of individual accountability."
The trials were also the first to allege crimes against humanity, like enslavement and extermination. With full access to Nazi records, the Allies followed Nuremberg with hundreds of lower-level trials in occupied Germany. In Italy, Mussolini was shot by Italian partisans and strung up in April 1945. But in Tokyo, an 11-nation tribunal began trying 28 alleged Japanese war criminals in 1946, resulting in the execution of Prime Minister Hideki Tojo.
While the Nuremberg and Tokyo trials inspired additions to the Geneva Conventions and the 1948 U.N. adoption of the convention against genocide, the Cold War blocked future international tribunals. What followed was four decades of a " `your human rights violator is my friendly tyrant' back and forth," says Michael Ignatieff, director of Harvard's Carr Center of Human Rights Policy. Germany, now a U.S. ally, released Nazi criminals without fear of U.S. sanctions.
"Emblematic." In 1960, asserting universal jurisdiction, Israel abducted Nazi bureaucrat Adolf Eichmann from Argentina and tried him in Jerusalem for crimes against humanity. The Israelis paid for a first-rate defense attorney and safeguarded Eichmann inside a bulletproof glass box during deliberations. Found guilty, he was hanged. But the trial was more significant than its stated purpose: While Nuremberg relied on Nazi records, this trial showcased testimony from survivors, says Lawrence Douglas, professor of law and social thought at Amherst College. "The trial turned the Holocaust into an emblematic event," he says. "Until then, survivors were ashamed."
This led to a period of self-reckoning in Germany, which convened a trial in the early '60s for workers at Auschwitz. In France, the conviction of former Lyons Gestapo chief Klaus Barbie for crimes against humanity helped prompt two unprecedented convictions of French Nazis. Elsewhere, war-crimes trials were less successful. The 1979 trial in absentia of Cambodian Khmer Rouge leader Pol Pot by Vietnam was a politically motivated sham, though the U.N. has been working to establish a tribunal for Khmer Rouge rebels.
When the Cold War ended, the U.N. convention against genocide--adopted more than four decades earlier--was finally put to use, in Yugoslavia and Rwanda. Currently trying former Serbian President Slobodan Milosevic for war crimes, the Yugoslav tribunals are the first to include justices from neutral countries and have made strides in affording rights to the accused. But they've also come under fire for being slow and expensive. In Rwanda, where Hutus killed 800,000 Tutsis and moderate Hutus in 1994, the tribunal, whose 2002-2003 budget was $177 million, has resulted in just 17 convictions since 1995. "There are times," says James Paul, executive director of the Global Policy Forum, "when the wheels of justice can turn too slowly." As a trial for Saddam looms, it's a fair warning.
With Justin Ewers
This story appears in the December 18, 2003 print edition of U.S. News & World Report.