Table Of Contents
- About the author(s)/editor(s)
- About the book
- This eBook can be cited
- 1 The Trial of Charles I and the Last Judgement
- 2 The Trial of Louis XVI and the Terror
- 3 War Guilt after World War I
- 4 Defeat in the Dock: the Riom Trial
- 5 Justice as Purge: Marshal Pétain Faces his Accusers
- 6 Treachery on Trial: the Case of Vidkun Quisling
- 7 Nuremberg: Making War Illegal
- 8 Creating Legitimacy: the Trial of Marshal Antonescu
- 9 Ethnic Cleansing and National Cleansing in Czechoslovakia, 1945–1947
- 10 People’s Justice in Liberated Hungary
- 11 From Mass Execution to Amnesty and Pardon: Postwar Trials in Bulgaria, Finland, and Greece
- 12 Politics as Conspiracy: the Tokyo Trials
- 13 The Yassıada Trial, the Greek Colonels, Emperor Bokassa, and the Argentine Generals: Transitional Justice, 1960–2007
- 14 Revolution Returns: the Trial of Nicolae Ceauşescu
- 15 A State on Trial: Erich Honecker in Moabit
- 16 Jean Kambanda, Convicted without Trial
- 17 Kosovo and the New World Order: the Trial of Slobodan Milošević
- 18 Regime Change and the Trial of Saddam Hussein
- 19 The Trial of Charles Taylor
- 20 The Punishment Ethic in International Relations
- Bibliography and Further Reading
In writing this book, I have contacted many people out of the blue, asking them for help. I have been immensely touched by the generosity with which they have responded, spent time on my requests, and imparted their knowledge. I am in debt to the following for their kindness:
Chris Black, David Brewer, Richard Crampton, István Deák, Vesselin Dimitrov, Penelope Evans, James Felak, Aaron Fichtelberg, Ivaylo Gatev, Milan Grba, David Jacobs, László Karsai, Lasse Lehtinen, Radomír Malý, Takis Nitis, Hannu Rautkallio, Filip Reyntjens, Urmi Shah, Phil Taylor, Kjetil Tronvoll, Ilya Vlassov, James Ward.
Whenever heads of state go on trial these days – and the phenomenon is becoming increasingly common – you can usually rely on someone to say that the event is unprecedented. In October 2007 a leading human rights organization said that the extradition of the former Peruvian president, Alberto Fujimori, to his native country from Chile was ‘the first time that a court has ordered the extradition of a former head of state to be tried for gross human rights violations in his home country.’ The same organization had previously said that the conviction for genocide of Jean Kambanda, the former prime minister of Rwanda, in 1998, was ‘historic’; that the trial of Slobodan Milošević, the former president of Yugoslavia, from 2001 to 2006, was ‘ground-breaking’; and that the trial of Charles Taylor, former president of Liberia, which started in late 2007, was ‘a break with the past’.1
The reason why such trials are greeted as marking new events is that they are indeed part of a new trend towards military and judicial interventionism, and towards rule by supranational political and judicial institutions. In most cases, recent trials of heads of state have been conducted before those international or partly international tribunals which have proliferated since the end of the Cold War: the International Criminal Tribunal for the former Yugoslavia (ICTY, created in 1993); the International Criminal Tribunal for Rwanda (ICTR, created in 1994); the Special Court for Sierra Leone (created in 1996, which organized the trial of Charles Taylor, the former president of Liberia, in The Hague); the International Criminal Court (ICC, created in 2002); and the Iraqi Special Tribunal (created by the American-run Coalition Provisional Authority in Iraq in 2003). In other cases, recent trials or attempted trials of heads of state have had an important international component: General Pinochet, the former president of Chile, was arrested in London on an warrant issued by a judge in Spain who invoked universal laws against torture. (The attempted extradition was rejected on medical grounds and Pinochet ← 13 | 14 → eventually returned to Chile, where he faced further legal procedures but died before ever coming to trial.) Meanwhile, former president Fujimori was extradited from Chile to Peru on a similar legal basis.
In tandem with this development, the post-Cold War period has also been marked by a rise in the view that international law should be coercive (instead of consensual, as in the past) and that, if necessary, war should be waged against states for failing to observe it or to protect universal human rights. The new coercive nature of international law was born when the United Nations Security Council authorized a coalition of states under United States leadership to repel Iraqi forces from Kuwait following the invasion of that country in August 1990: on that occasion, the then American president, George H. W. Bush, proclaimed ‘a new world order’2, by which he meant that international law would henceforth be enforced by means of military violence. The same sentiment was expressed at the end of the decade by the chief prosecutor of the ICTY, Louise Arbour, who said, ‘We have passed from an era of co-operation between states into an era in which states can be constrained.’3
The key point about this new development is that states, and the political decisions of their leaders, are henceforth subject to a body of law which is tailor-made for the purpose of controlling them and generally applied by external (international) bodies or by other states calling themselves ‘the international community’. As a leading proponent of this trend has eloquently argued, ‘The movement for global justice has been a struggle against sovereignty.’4 This is because human rights law is specifically law directed to deal with state acts, not with the acts of private individuals: ‘What sets a crime against humanity apart both in wickedness and in the need for special measures of deterrence is the simple fact that it is an act of real brutality ordained by government – or at least by an organisation exercising or asserting political power. It is not the mind of the torturer but the fact that this individual is part of the apparatus of a state which makes the crime so horrific.’5 Human rights law is not interested in torture if it is practised by a drug-dealer to extort money from his clients, but only if it is practised by an officer of a state.
The doctrine of universal human rights has therefore quickly become a basis for overriding national sovereignty, which until then had been the bedrock of the international system. While the doctrine of human rights appears to be incontestably moral and above politics, it is in fact the basis for a highly ambitious political project involving the creation of a new supranational jurisdiction and new law – a new right to rule. This development has inevitably led to the wielding of new political power through war. Whereas non-interference in the internal affairs of states had been a ← 14 | 15 → key principle of international law – for the simple reason that states were not considered to have legal jurisdiction outside their own borders, and because there was no supranational organization which had such jurisdiction either – the proclamation of ‘no-fly zones’ over the North and South of Iraq in 1991, on the basis that human rights were being abused in Iraq, heralded a new departure in international law. On the basis of it, Iraq was bombed, more or less continuously, until the invasion of 2003. This new philosophy of international relations also led to the 1999 attack on Yugoslavia by NATO, a war not authorised by the UN Security Council but justified on the purely moral (not really legal) claim that it was being waged against a state which was abusing its own people and violating their human rights. As the president of Yugoslavia was indicted by the ICTY at the height of the bombing – on the basis of exactly the same allegations as those being made by NATO – the twin principles of military and judicial interventionism became so completely intertwined with one another that they were effectively indistinguishable.
Whereas international affairs (including war) and domestic policing and judicial policy had previously been regarded as separate domains – the international system being based on the principle that all states are both sovereign and equal – they were soon blended together in the anti-egalitarian concept of ‘rogue states’ (some states are better than others) and in the interesting oxymoron, ‘the war on terror’ (which presents international war as being akin to internal policing). And because the policies of interventionism and regime change became so quickly entrenched, it seemed almost natural that the occupying forces in Iraq in 2003 should abrogate the country’s constitution and sack most of its judges, even though the existing international law on the rights of occupying authorities prohibits this, and that the former president, Saddam Hussein, should be put on trial for human rights abuses, as duly occurred in 2005.
By the same token, few expressed surprise when, in February 2007, the ICC adopted the interventionist practices of the ICTY and issued an indictment against a Sudanese minister, even though Sudan is not a signatory state of the ICC treaty and therefore does not come under its jurisdiction. This new interventionism stands in stark contrast to what the American judges said at Nuremberg in 1947, when they specifically ruled it out: ‘Within the territorial boundaries of a state having a recognised, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that state.’ The power ‘to establish judicial machinery for the punishment of those who have violated the rules of the common international law,’ they went on, could ← 15 | 16 → never be assumed or exercised ‘by an international authority without consent … within a state having a national government presently in the exercise of sovereign powers.’6
Human rights activists hail this brave new world in which the judicial system is used to enforce political change, and to bring dictators to heel, the fashionable name for which is ‘transitional justice’. They foresee a new regime in which they will say who has the right to rule and who does not. But the general principle of subjecting heads of state (and therefore acts of state) to the criminal law is in fact neither new nor brave. On the contrary, it has a rich and fascinating history which it is the goal of this book to examine. What follows, indeed, is a chronological account of the development of that specific phenomenon, the organization of criminal trials of heads of state (and heads of government) for acts of state. The story begins with the trial of Charles I in 1649, and a very large number of such trials were conducted in the aftermath of World War II, but the political ideology behind these trials is generally the same: that the law should be the same for everyone, including sovereigns, and that there should be no impunity for political crimes.
This idea that powerful politicians should be called to account has a very deep appeal. Most people take it for granted that bloody tyrants should not be allowed to kill and steal with impunity, and they welcome the fact that they are put on trial. There is, after all, something especially repugnant about the power of the state being used to commit atrocities against conquered peoples or – perhaps even worse – against the state’s own citizens. Such acts seem to break the very contract which is at the heart of all societies, namely the overriding duty of the state to protect its citizens, not to persecute them. Rather like treason in wartime, such acts are often considered to make their perpetrators enemies of the people, and perhaps even of humanity itself, putting them firmly outside the normal ambit of the law. It seems obvious that particularly atrocious acts which seem to put the perpetrators beyond the pale of normal human behaviour should be subject to sanction.
However, the desire for vengeance is seldom, on its own, a spur to justice, especially in the case of trials of head of state or government for state acts. There is a danger that too naive a reaction to the welcome spectacle of seeing a tyrant fall can allow new injustices to be committed. It is important, therefore, to look more closely at the historical record of these trials, especially at a time when new political and judicial institutions are being set up on the basis that they are desirable, because the prosecution of political sovereigns as criminals raises the most fundamental questions of political philosophy. Who has the right to conduct criminal prosecutions? ← 16 | 17 → Who has the right to adjudicate the acts of another state? What accountability is there for the decisions taken by international tribunals? To what extent is the trial of a defeated enemy an example of victors’ justice? Why are his crimes on trial and not those of the people bringing the prosecution? What are the rights and motives of the prosecution itself? How can the demand that the law should be the same for all be reconciled with the widespread practice (common throughout history, as we shall see) of creating ‘special tribunals’ to try sovereigns? If the new regime has the power retroactively to declare acts criminal when they were not criminal at the time when they were committed (a common phenomenon, as we shall also see), then what controls are there on the new regime’s own power?
And can acts of state really be compared to private crimes? Acts of state are precisely public acts, not private ones. Politicians govern because they have been legally empowered to do so (or at least so they claim) and officers of the state are distinguished from ordinary citizens because the state has the power to take life or to deprive people of their liberty, in war or after a conviction, without being subject to criminal prosecution. Yet can the processes of history, or political careers spanning many years and decades, really be subjected to adjudication by procedures which have been designed for common murderers? What happens to the criminal law when vast events are subject to its adjudication? Does it rise to the occasion and offer truth and reconciliation, or does it simply break down under the burden? Does it represent a welcome full stop after a period of conflict, or does it merely represent a final stage in the cycle of vengeance, perhaps even distorting historical truth in the process?
The expression ‘political trials’ in the title of this book is therefore not used, as it commonly is, to denote prosecutions brought against political opponents in general for the purpose of eliminating them. The focus here is on the prosecution of true acts of state. Trials of heads of state or government will therefore not be discussed if the crimes alleged were matters of private corruption, as was the case, for instance, in the trials of General Noriega of Panama (accused of drug-trafficking) or Deputy Prime Minister Anwar Ibrahim of Malaysia (accused of homosexuality). The same is true of Pol Pot, tried by a ‘people’s court’ of the Khmer Rouge itself not for that regime’s judicial murder of millions of Cambodians in the late 1970s, but instead for the killing of one man, his deputy Son Sen, in 1997. I have also not dealt with trials from which the chief defendant was absent for all or most of the proceedings: examples include Pol Pot himself (earlier sentenced to death in absentia for genocide by a people’s revolutionary tribunal in 1979) and the ‘Red Terror trials’ of Colonel ← 17 | 18 → Mengistu Hailemariam of Ethiopia and his Derg regime, which ended in the death sentence passed, also in absentia, on Mengistu in January 2007, after a trial which had started in 1994 and in which there were over five thousand defendants.7
Trials will also not be discussed of holders of high office if the acts for which they were prosecuted were allegedly committed after they had fallen from power, as for instance happened to St Thomas More and Mary Queen of Scots. I have also glossed over trials of co-sovereigns or deputies, like Marie-Antoinette or Pierre Laval, when the primary sovereign is discussed instead. The book will not deal with acts of impeachment brought against heads of state – one thinks of American president Andrew Johnson in 1868, of Bill Clinton in 2000, or of President Rolandas Paksas of Lithuania in 2004 – because impeachment is a political, not a criminal, procedure and the sanction is usually political: Henry the Lion, the duke of Saxony and Bavaria, may have been tried (in absentia) by Emperor Frederick Barbarossa in 1180 but his punishment was destitution (i.e. removal from office), not imprisonment or death.
Finally, trials of heads of state and government will not be included if the defendants were not, in fact, sovereigns. In 587 BC, Zedekiah, the last king of Judah, was captured by Nebuchadnezzar’s troops after the fall of Jerusalem and ‘they gave judgement upon him’ (2 Kings 25:6). The Babylonians killed his sons in front of him and then put his eyes out, while the Jews were carted off to their Babylonian captivity. But Zedekiah was not really a sovereign, Judah having fallen under Babylon’s suzerainty a few years previously; he was tried for breaking his oath of fealty. His fate therefore resembles that of another head of government, Count Lajos Batthyány, the first prime minister of Hungary, convicted of high treason and executed in 1849 by firing squad for his support for the rebels in the 1848 revolution, and whose crime was therefore to have shown disloyalty to the emperor. (He is revered in Hungary as a patriot.)
The reader will immediately notice two things about the following account: the chronological treatment and the voice given to the Defence. The purpose of the chronological treatment of the subject matter is threefold. The first is to show that, despite modern claims to the contrary, contemporary trials of heads of state do have precedents and these are usually overlooked. By seeing the historical context of such modern trials, we can perhaps avoid the dangers associated with the intoxicating and hubristic belief that one is breaking new ground. The second aim is to show the historical context of certain specific trials. Nuremberg, for instance, which is the great reference point for today’s trials, was in fact only one of a very large number of such trials which occurred after World War II, and which ← 18 | 19 → were of very questionable regularity. The third goal is to show how similar such trials are across history, with many of the same themes recurring: war, conspiracy, treason and revolution.
I have tried to give voice to the Defence for similar reasons of historical interest: generally speaking, we know more about the reasons why ex-sovereigns were prosecuted than about what they said in reply. The purpose of the book is to encourage people to reflect on the true nature and motives of the Prosecution, and of course on the procedural shortcomings of these trials; there is a danger of too naively believing that because evil men were punished, the Prosecution must have been flawless. But where I have criticized those prosecutions, or drawn attention to the irregularities of the trials, the goal is not necessarily to exonerate the defendants, at least not morally. It is instead to show the intractable difficulty associated with all such political trials: their distinguishing characteristic is that the Prosecution is invariably as political as the Defence. The overriding goal of this book, therefore, is to look at the constitutional issues raised by political trials, and by the creation of international tribunals. It is not to discuss the guilt or innocence of individual defendants.
Victors both administer justice and also write the history. Perhaps this is why past trials of heads of state are very often presented as examples of what Oscar Wilde ridiculed as the very definition of fiction: the good ends well and the bad ends badly. I shall argue that the historical account is in fact not kind to the claims made by today’s international humanitarian law activists. It is often said that we must understand the past in order to understand the present, but the opposite is also true: it is by observing events in our own day that we can better comprehend historical events (otherwise so distant, often so horrifying). Past and present then interpenetrate one another and the comparison shines back onto our own day, hopefully illuminating the fact that our naively enthusiastic endeavours today have questionable antecedents.
The first trial of a head of state for acts committed in his official capacity while in power was that of King Charles I of England in January 1649. His entry as a prisoner into the Palace of Westminster in front of a specially constituted High Court of Justice on a freezing cold morning was both the culmination of a century of religious and political turmoil in England, and also the beginning of the distinctly modern attitude to kingship, sovereignty, and the state.
Ever since Henry VIII had broken with Rome in 1534, England had been engulfed in political and religious upheaval. But the English Civil War (1642–51) mirrored the similar religious wars which ravaged Central Europe from 1618 to 1648. It is generally believed that, when an end was put to that war by the Treaties of Westphalia in 1648, the modern international system was born in which states were considered sovereign, not subject to any superior religious authority. This date, 1648, is generally taken to mark the rise of modern secularism, and the establishment of the key principle of modern politics that there is no religious authority above that of the state. Indeed, the execution of Charles I, and the destruction thereby of belief in the ‘divine right of kings’, itself occurred in that year according to the way the calendar then worked, since the new year did not begin until March.
- IV, 352
- ISBN (PDF)
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- ISBN (Softcover)
- Publication date
- 2016 (February)
- Oxford, Bern, Berlin, Bruxelles, Frankfurt am Main, New York, Wien, 2016. 356 pp.