Judging the Courts: Wikinews interviews Prof. Lawrence Douglas

November 21, 2006 Wikinews interviews Lawrence Douglas, Professor of Law, Jurisprudence and Social Thought at, on questions of the fairness and credibility of the Saddam Hussein trial, and the purpose, conduct and impact of courts trying international law crimes such as genocide, crimes against humanity and war crimes.

Prof. Douglas is the author of The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press, 2001), an acclaimed study of war crimes trials. His writing has appeared in venues including the Los Angeles Times, the Washington Post, and The New Yorker, and he is a frequent contributor to the Times Literary Supplement.

The Dujail trial
WN: Did Saddam Hussein get a fair trial?

LD: Clearly the trial suffered from numerous and substantial flaws which never would have been tolerated had the trial been staged before an international tribunal, as many human rights observers advocated. All the same, the trial was not a complete sham. The prosecution was able to present strong evidence connecting Saddam to the killings in Dujail. The judges apparently struggled long to weigh the evidence brought against the various defendants (though their compendious written judgment has not yet been made public). So if the Hussein trial failed to live up to the hopes of some that Iraqi jurists would quickly master the rules of the rule of law, it also disappointed the doomsday prognostications of others who foretold a legal catastrophe.

WN: Saddam is believed to have committed atrocities on a huge scale. Do such crimes merit a fair trial, one with the same standards as that for a "common" crime?

LD: The magnitude of the crimes should not change our commitment to a fair legal process. This is not to say that the identical rules of evidence that apply in the trial of a "common" criminal must be applied to a spectacular trial of a high-level perpetrator. For example, the Nuremberg and Eichmann trials both permitted hearsay and entertained a more capacious notion of relevance than would have been permitted in a "common" trial. But these unorthodox evidentiary rules did not erode the fairness of the proceedings.

WN: Saddam's defense lawyers, rights groups and observers have questioned the fairness and validity of this trial. What do you make of the concerns raised by them?

LD: The fact that the judge who finally took the reins of control, Raouf Rasheed Abdel-Rahman, frequently got into shouting matches with the defendants and suddenly curtailed the calling of defense witnesses certainly did little to contribute to the image of a neutral, even-handed tribunal.

WN: Some of the issues raised concern matters that were outside the Court's ambit and control (e.g., the murder of three defense team members, the opposition to the use of the death penalty, the effect of the verdict on the continuing violence in the country). Leaving these aside, what do you make of the concerns raised about the Court's own proceedings, its decisions and actions?

LD: Clearly the Tribunal made all sorts of missteps and questionable moves. It's worth bearing in mind, however, that even the best-intentioned court would have faced staggering problems given the tactics of Saddam and the larger political climate outside of the courtroom. Saddam himself placed the Tribunal in an extremely difficult position. The first presiding judge, Rizgar Mohammed Amin, was faulted for his failure to restrain the defendant, and this failure arguably made the court look impotent. His replacement, Judge Abdel-Rahman was faulted for the opposite reason: for dragging the defendant from the courtroom at the slightest provocation, a strategy that undermined the dignity of the court and its appearance of neutrality. So the court was caught in a difficult position, which was not improved by the periodic news that a member of the defense team had been assassinated. That said, the fact that one of the accused was acquitted is a good sign. At the very least, the judges appeared to have learned the Nuremberg lesson that nothing legitimates the death sentence of an architect of atrocity better than the acquittal of a lackey.

WN: Have the actions of the Iraqi authorities undermined the fairness or independence of the Tribunal?

LD: The tribunal was subjected to withering political pressure from the Iraqi government, resulting in the resignation of the first presiding judge and in the withdrawal of a possible replacement. Clearly this kind of political pressure is inappropriate. At the very least it undermines the perception of the tribunal's independence, and matters of perception play an extremely important role in legitimizing the legal process.

WN: The trial has been criticized by Saddam's defense lawyers as having a "pre-determined verdict". What is the line dividing a trial with a "pre-determined verdict" and a trial where there is a widespread belief that the accused is guilty? Can there be a fair trial in this latter circumstance?

LD: Clearly the likelihood of a guilty verdict cannot be a measure of the fairness of a trial. If it were, then the strongest cases could be deemed the least fair. It's important, then, to distinguish between the assumption of guilt, as a factual matter, and the presumption of innocence – the legal norm that requires the state to assume the burden of proving guilt, even in cases in which many people may assume that the accused is guilty. The assumption of guilt can never replace the state's obligation to assume the burden of proof. If it does, the trial is a farce.

International criminal and humanitarian courts
WN: How significant is the Saddam trial to international criminal jurisprudence? Will it impact other trials?

LD: Taken in tandem with the Milosevic trial (which ended, after more than three years of trial, with the death of the former Yugoslav president in March), the Saddam trial makes clear how difficult it is to control the court behavior of former strongmen. Saddam clearly took a page from Milosevic's playbook, mounting a defense of disruption that continuously challenged the legitimacy of the tribunal. I think prosecutors and judges need to come up with new ways of dealing with such recalcitrant defendants. As a further matter, I suppose the irregularities of the Saddam trial will lead some jurists to strengthen the call for international trials of former dictators; clearly, opponents of the death penalty will likewise petition in favor of relying on international courts to deal with the legacy of atrocious crimes.

WN: Do international tribunals such as the ones set up to try crimes committed in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia... etc do a good job? What have they succeeded in? What problems have they experienced?

LD: We should distinguish between international tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and the hybrid courts that have been constituted in Sierra Leone and now in Cambodia. None of these courts have compiled perfect records, but mostly they have been quite effective. Notwithstanding the missteps and disappointments associated with the Milosevic trial – the former president's death in March cheated the tribunal of the opportunity of ever passing judgment – the ICTY has brought other high level perpetrators to justice and has contributed importantly to the growth of international criminal law. One problem that all these courts have faced are the start-up costs. As ad hoc tribunals, these courts have been created out of nothing, and the cost of building courts, hiring staff, establishing competence has been extraordinarily high. As a permanent institution, the International Criminal Court (ICC) promises to solve some of these problems.

WN: How effective have national courts and individual countries been in bringing high-level leaders to account for abuses?

LD: The record is uneven. In the wake of the atrocities of World War II, thousands of domestic trials were staged. The most spectacular of these – the Eichmann trial in Jerusalem in 1961, the Barbie trial in Lyon in 1987 – were enormously important, despite their flaws, in establishing a responsible account of terrible crimes. Other countries have been less successful. The fact that Pol Pot died peacefully without ever having to answer for his crimes is regrettable, indeed, but not entirely unexpected. A country that is still very much in the grips of its traumatic history is hardly in the position to engage in a reckoning with its past in a manner that accords with the rule of law.

WN: How do the two (domestic versus international courts) compare?

LD: Clearly there are tradeoffs. International trials inevitably arouse resentment in the nations most directly implicated in the commission of the adjudged crimes; international tribunals convey the message that domestic national courts are not up to the task of doing justice. Moreover, as these trials may unfold thousands of miles removed from the site of the crimes, they fail to be organically connected to the communities that should be most involved in the case. Conversely, domestic national courts invite the charge of being insufficiently distanced from the crimes under consideration; these courts thus may be assailed as partisan instruments of victor's justice, or, conversely, as instruments lacking the legal resources and political will to bring perpetrators to justice. If – and it's a big if – we can trust domestic national courts, I think they are to be preferred over international tribunals for the reasons suggested above. International tribunals should be courts of last resort, relied upon in situations in which domestic courts should not be taxed, or cannot be trusted, to deal adequately with the legal legacy of atrocity.

WN: One of the reasons for setting up the and other international courts has been to serve as a deterrent against committing crimes under international humanitarian law; to work around the impunity enjoyed by some leaders in their home countries. How well is this purpose being served?

LD: I'm not sure I would necessarily associate the goal of deterrence with the goal of ending impunity – that is, I believe it is critical to fight impunity, even if bringing perpetrators to justice appears to do little by the way of deterring other leaders from engaging in atrocious acts. That said, I think it's awfully difficult to measure deterrence inasmuch as it's a negative effect. The fact that atrocities continue to occur around the globe doesn't mean that some potential perpetrators might not have thought twice about engaging in criminal acts.

WN: In the efforts to secure an end to the conflict between the Ugandan government and the (LRA) rebels, LRA leaders have demanded that crimes against humanity charges filed against them by the ICC be dropped, as part of the deal. Is there a tension between ensuring justice for the victims of past crimes and preventing/mitigating future suffering? How can such a tension be resolved?

LD: The problem resists easy solution. Once you indict a head of state as, say, a perpetrator of genocide, it becomes extremely difficult to work to a political solution with that leader. At the same time, the ICC is a legal institution, not a political device, and it does not take its orders from negotiators or other political actors. It would be nice to say that the dilemma is false – that perpetrators of atrocities always reveal themselves to be unreliable, treacherous parties to political settlements – though I'm not sure this is correct. Qaddafi, arguably responsible for crimes against humanity, is now the West's poster boy of the rehabilitated strongman.

WN: International law tribunals have been criticized for selectively trying certain perpetrators. Does this selectivity make the process any less valid?

LD: Selectivity can be as benign as it is necessary. All criminal trials are selective inasmuch as only a small percentage of those who break the law ever find themselves in the dock at a criminal trial. It is well accepted that trials of organized crime figures will invariably focus on the conduct of a few. Obviously the goal is to go after the leaders of a criminal organization. The ICC has specifically set itself the goal of going after leaders, not underlings. Problems arise when selectivity is the consequence not of an effort to conserve prosecutorial resources, but born of a political calculus. The ICTY, for example, has wisely brought prosecutions against Croats as well as Serbs. Still, some critics have attacked the ICTY for failing to bring charges against NATO nations for the air war over Kosovo and Serbia in 1999. I am not convinced of the merits of this specific critique, but all fair-minded persons must agree that international justice binds the strong as well as the weak. WN: The International Criminal Court was set up in part to counter this problem, with a promise for "universal justice" Has this attempt at ensuring fairness worked?

LD: By its very terms, the ICC cannot deliver "universal justice," as it has no jurisdiction over crimes committed in a conflict in which neither belligerent is a member of the court. Also, the hope that the court would bind the strong as well as the weak has obviously been frustrated by the Bush administration's concerted efforts to undermine the fledgling body. The one ray of hope here is the fact that Bush did not block the referral of the Darfur crimes to the ICC. The ultimate efficacy and fairness of the ICC will be demonstrated in the years to come.

Courts and writing history
WN: You have suggested in your book,  The Memory of Judgment, that the Holocaust trials have a pedagogical value - they document events and serve as a historical record, in addition to serving the cause of justice. How well does a criminal trial capture the history of the events underlying the crimes?

LD: I think it's fair to say that trials are not well equipped at rendering history in its full complexity. What they can do very effectively is use document and testimony to construct a historical account that reaches a huge audience. This account may never match the most nuanced renderings of the past that issue from the pen of the professional historian. But it can establish a baseline of indisputable fact that discredits the apologists of perpetrators and gives the lie to those who would baldly falsify the historical record.

WN: What does the historical account presented by a judicial process offer that scholarly or journalistic or propagandist accounts don't?

LD: Certainly trials have the power to galvanize national and international attention in a way that other accounts rarely can. Prosecutors can often call upon extraordinarily powerful tools of discovery for the purposes of accumulating and organizing vast amounts of evidence. Survivors are given the opportunity to present stories of victimization in the form of legally potent evidence. Spectators of the trial – either those present in the courtroom or those who follow the proceeding on television – directly witness the presentation of evidence and testimony. In this way, they become witnesses to the witnesses.

WN: Is the pedagogical purpose served even when the trials are or are seen as, selective and less than fair?

LD: One of the central pedagogic aims of these trials is to make visible the workings of the rule of law. This is a particularly important goal in transitional societies that historically have lacked a robust commitment to the rule of law. Clearly this aim cannot be realized if the trial is perceived as deeply flawed. As a further matter, the quality of the justice will inevitably influence the way observers perceive the quality of the history presented in the courtroom. A biased proceeding will not be viewed as a neutral forum for the presentation of history. WN: Many rights and humanitarian groups document abuses and crimes to serve as a record of events. Do trials offer more?

LD: I think of the documentary work of human rights groups and of trials as complementary. The work compiled by humanitarian groups can make its way into the prosecution's dossier. Conversely, researchers can further mine the archival trove compiled by prosecutors. Yet as I've already mentioned, trials enjoy the power to galvanize national and international attention. One cannot underestimate the drama of seeing a former head of state or a high-level perpetrator standing before his accusers, victims, and judges.

WN: How about, which are usually explicitly charged with the task to record events in addition to punishing those guilty of a crime?

LD: Again, I see the work of trials and truth commissions as complementary, not antagonistic. Trials are about adjudicating guilt; they issue in the imposition of a coercive sanction. This fixation on fixing guilt and imposing punishment may serve the interests of reconciliation and transition, but that is not its principal purpose. Moreover, because trials assign blame and impose sanctions, it is critical that they be performed fairly. Truth commissions, by contrast, are often explicitly geared toward advancing the goals of reconciliation: they are part of an instrumental calculus that seeks a smooth transition to a more humane political order. Truth commissions may, then, be better suited to the experiences of certain nations than trials. That said, the two are not mutually exclusive and can often work in tandem with one another. As time passes, a nation that, in the interests of stabilizing a fledgling democracy, originally accepted a truth commission may come to see, as its institutions strengthen, the attractions, if not the necessity, of trials, too.

WN: You have written that law has responded to the Holocaust by creating and expanding on the concepts of genocide and crimes against humanity. Are these additions to legal discourse and legal apparatus adequate to handle the events since then, such as the Rwandan genocide, the breakup of Yugoslavia? Do these events show a need for, or did they spawn, a fresh expansion?

LD: I think we need to distinguish between the substantive crimes that high-level perpetrators stand accused of having committed – e.g., genocide, crimes against humanity, war crimes – and the principles of criminal accountability that prosecutors use to organize and prove their case. Here I have in mind concepts such as the "joint criminal enterprise," which has been usefully elaborated by prosecutors at the ICTY to facilitate complex prosecutions of high-level perpetrators. Some have called for the expansion of the substantive crimes to include novel offenses, such as "the crime of atrocity." I, for one, think it counterproductive to proliferate the number of major international crimes; "genocide" and "crimes against humanity" are both clearly enough defined yet capacious enough to embrace the full spectrum of atrocity.

Back to Saddam's trial
WN: How well did the Saddam trial fare in writing history?

LD: The tribunal's written decision is yet to appear, so it's difficult to answer this question. Perhaps more to the point, the trial dealt with a relative minor set of crimes, those pertaining to the reprisal killings of 148 Shias in Dujail in 1982. While such a focus made for a more manageable case for the prosecution, it did not serve the broader interest of demonstrating the full sweep of atrocity perpetrated by Saddam's regime.

WN: Does the court's record of events really matter? Don't "Iraqis know Saddam's crimes, trial or no trial"?

LD: I think a court's record of events can make a difference. Though many Germans were aware of the "excesses" of the Nazis, the Nuremberg trial made clear to them the extent and depth of atrocity perpetrated by their leaders. This accounting helped erode whatever residual sympathy the Nazis enjoyed among the German people. Ideally, the Hussein trial would have achieved a similar end. I doubt though that this has happened. Unfortunately, in the minds of many Iraqis, the crimes for which Saddam has been sentenced to death pale in comparison to the violence that grips the Iraqi nation on a daily basis. If anything, a sizeable percentage of the population probably now longs for a strong leader capable of reimposing conditions of security and order.

WN: Should the trial have been conducted by an international tribunal instead of an Iraqi one?

LD: Clearly an international tribunal could have avoided some of the more unseemly problems that vexed the Iraqi court. Still, I believe an international court would have been plagued by other problems. As the Milosevic trial made clear, the fact that a trial is conducted before an international tribunal does not guarantee that it is perceived as legitimate or independent – the ICTY was dismissed in Serbia as the lapdog of NATO. And as I mentioned earlier, removing a case to an international court sends the implicit message that the Iraqi legal system is deficient, something guaranteed to breed resentment. And as the Milosevic trial made clear, there is no reason to believe that Saddam would have been more deferential to his international judges than he was to Iraqi jurists.

WN: There is a possibility that Saddam may be executed without facing trial over other, far more significant crimes such as the, in which an estimated 100,000 people died. How important is it, for serving justice and for establishing a historical record, for Saddam to face trial for the Anfal killings, the repression of the 1991 Shia uprising, and other alleged acts?

LD: In August, just as Saddam's first trial was winding down, his second began – this one involving his regime's alleged atrocities committed against Iraqi Kurds during the Anfal military campaign in the late 1980s. Needless to say, this trial involves far more serious crimes than those at issue in the first trial; in terms of the role of the trial as a tool for clarifying a horrific past, this proceeding promises to do far fuller justice to the abominable crimes of Saddam's regime. This fact alone creates a strong case for delaying Saddam's execution until at least the completion of this second trial. Indeed, it would be best to delay his execution until all the crimes of his regime, such as the bloody repression campaign of 1991, can be submitted to legal judgment. Ideally this would serve the interests of history and justice, as Iraqi prosecutors and judges would grow increasingly familiar with conducting trials according to the rule of law.

International law and the United States
WN: The United States has moved to redefine its rules regarding the treatment of terrorist suspects, combatants and detainees. At the same time, it has sought to reduce judicial, congressional and public scrutiny of the government's conduct in its. Do these moves conflict with the Unites States' obligations under international law?

LD: Two bodies of the United Nations, the Committee against Torture and the Human Rights Committee have concluded that the executive policy of secret detentions violates international treaty obligations. The Military Commissions Act of 2006, passed into law in the end of September, permits the use of evidence against unlawful alien enemy combatants obtained through cruel, inhuman or degrading treatment; international law bars such use. From the summer of 2002 until the end of 2004, the executive branch operated under a definition of torture that was absurdly permissive – it made a mockery of both international and domestic law prohibiting the practice of torture. It's fair to say the Bush administration has treated international law not a code of binding norms but as a series of recommendations to be followed as it sees fit.

WN: The outgoing Defense Secretary, Donald Rumsfeld has been sued in Germany for alleged war crimes over the  and allegedly, in the Guantanamo Bay detainment camp. Under what circumstances will senior commanders or civilian leaders be held responsible for abuse committed under their command? If the German prosecutors do open a case, is the United States or Secretary Rumsfeld obliged to respond or act upon it?

LD: I think it's fair to say that Angela Merkel would be horrified to see a German prosecutor bring forward war crimes charges against Donald Rumsfeld, Alberto Gonzales, John Yoo, and others named in the criminal complaint recently filed by the Center for Constitutional Rights. All the same, German courts have been receptive to exercising universal jurisdiction, so it's not completely unthinkable that a case might move forward – though not to trial. That could not occur in Rumsfeld's absence and there is little chance that the former defense secretary would schedule a flight to Berlin if he feared being seized on arrival. I, for one, am not a fan of the aggressive reliance on universal jurisdiction as a way of achieving global justice – the opportunities for abuse are too great. In this case, Rumsfeld and the Bush administration would decry the entire proceeding as illegitimate and thoroughly politicized. And they would score big points domestically by presenting the Germans' actions as the most emphatic confirmation of the administration's worst fears of international criminal law run amok.