Tuesday, May 3, 2005


Shrouded in Thick Fog

In a recent column about the impending trial of Saddam Hussein, Ellian argues that it is not possible to try tyrants objectively. But despite the dilemmas involved, such trials are very necessary for historic memory. This column translated is in its entirety, followed by fragments of other columns.

"Saddam Hussein is standing trial. His first confrontation with an Iraqi judge was memorable. The man who once could have had thousands of citizens murdered with a wave of his hand, was suddenly a suspect of genocide, murder, rape, kidnapping and flogging opposite a young Iraqi who asked him his first name and last name. Being questioned is a nightmare for tyrants. The tyrant is an enigma, the omnipresent question. All subjects are only questioned by the tyrant and his people, because the tyrant can only exist as a question. "I am Saddam Hussein, the president of Iraq", answered the tyrant to the question: "Who are you?" The tyrant cannot have a name that stands alone, because the tyrant represents a function. Saddam is not Saddam, he is and remains the president of Iraq.

The trial against Saddam shall once again confront the world with questions about the legitimacy of these kinds of processes. At the same time this constitutes the battle between memory and forgetting. These questions and problems we should relate back to the Nuremberg Trials, where Nazi leaders were put to justice.. Richard Overy begins his impressive book Interrogations: The Nazi Elite in Allied Hands by noting that if Churchill had gotten his way, there wouldn't have been any important war criminals in 1945 left to prosecute and Nuremberg wouldn't have had a military tribunal. Churchill wanted to declare them free and have them shot without intervention by judicial authorities. From this perspective, Hitler deserved a court-martialed execution. President Roosevelt was also initially inclined toward prompt executions. In October 1944 Stalin told Churchill that there should be no executions without trials. Even Pravda had called in March of 1945 for a swift and correct prosecution of Hitler's gang.

Molotov, the Soviet Minister of Foreign Affairs, wanted trial by a special international tribunal. That the Soviet Union, the regime of Stalin, demanded a proper and decent treatment of Nazis was miraculous in itself: the totalitarian Soviet Union wanted to put the other totalitarian regime on trial.

The Soviet attitude should be understood in the context of the prosecution of the Soviet regime against dissidents and former comrades. The Moscow show-trials were brief, and without exception the accused confirmed their guilt and the correctness of the accusations. They even begged forgiveness from the great leader of the proletariat, comrade Stalin, because of their betrayal against international socialism and the revolution. Not only the dissidents, but also their relatives were frequently executed. They were all, according to the official reading of Stalin and Stalinists, enemies of the people. Probably Stalin also imagined that the Nazis, just like the enemies of the people, could be tried quickly and efficiently and be eliminated.

It is interesting to note that on behalf of the Soviet Union, Major-General Iona T. Nikichenko negotiated the way in which the Nazis should be put on trial. Who was this general? He was a key figure, according to Overy, during the show-trials of the 30s in the Soviet Union. All of this is rather ironic.

Eventually Roosevelt agreed to try the Nazis in a special tribunal. The Americans and the British knew that it could be a worrisome process. Because imprecisely formulated accusations, the possibility of the lack of concrete evidence and other juridical problems could lead to acquittals. How could Hitler and Goering be acquitted? Did a judge exist who assumed them innocent until proven guilty?

In the end the Allies agreed about the founding of an international military tribunal for the prosecution of Nazi criminals. The tribunal would primarily be based on American principles of law complemented with quite a few British elements. Soviet procedures were not deemed appropriate. But a few Soviet criminals were allowed to try Nazi criminals. Here we see the dark shadow of the Nuremberg tribunal.

And the truth? Did it reveal the truth? The Nazi leadership professed innocence. To illustrate, I quote from Overy's book, a conversation between Goering and Hess, that was recorded during the hearings.

Goering: "Don't you know me?"

Hess: "Who are you?"

Goering: "You must know me, we've worked together for years."

Hess: "I've lost my memory for some time. It's terrible, but the doctors tell me that it will return by itself."

Goering: "Don't you remember that the Fuhrer at a gathering of the Reichstag declared that if anything would ever happen to him, I would be his successor, and if anything would happen to me, you would be my successor? You don't' remember that?"

Hess: "No (...) It's all shrouded in a thick fog"

Has Milosevic revealed the truth about Serbian acts against the Muslim enclave of Srebrenica? No. The president of the civil war and genocide is suffering from high blood pressure and has complaints about his heart: he is playing a powerful game with the law. It is highly duplicitous and illogical that one should consider that tyrant-presidents, who are legitimate military targets, should be tried objectively. Despite these dilemmas, the trial is and remains a legitimate and sometimes even necessary option. Nonetheless, these types of trials are highly problematic cases. Saddam's trials will be an even riskier process than the trials in the Hague.

And the truth? Saddam had once heard "in the media" about Halabja, the village where Kurds were murdered with chemical weapons. The individual and collective loss of memory will also strike Iraq. And then one day a general will say to another general: "It's all shrouded in a thick fog."

And on a lighter note than pure san diego lawyer , check out the funniest trial transcript ever! If it's not serious enough of a topic, well, just pretend it's the Brit's version of san diego lawyer !

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