There has never been a trial of a fallen national leader that would stand up to the scrutiny of good criminal law. They have always been politically motivated, full of passion, and short on legal niceties or any observation of technical precision. Because of this, should the United States capture Usamma bin Laden, she should quickly and immediately execute him. Period. End of discussion.
From the absurd trial of Charles I by Cromwell’s Roundheads, to the Nazi trials at Nuremberg, to the Soviet Show Trials all the way to the execution of Iraq’s Saddam Hussein, no political trial has been legally legitimate. Moral legitimacy is another subject, but the truth is that every one of these trials mentioned was bad on legal procedure.
Not only are these trials bad on technical law, but they set bad precedents. The Nuremberg trials, for instance, should never have happened because they emboldened those miscreants that had the idea that an “International community” could possibly have the legal power to try and convict a leader of a fallen state or deposed government.
Better that the Nazis should have been taken out back of a death camp and summarily executed as befits any fallen, evil foeman. The Romans were right. Kill those fallen leaders and move on. There is no need to justify it via some warped appeal to “the law.“
This is not to say that justifying a war is a waste of time. It is not to say that laying out the reasons that a foe must be eliminated is unnecessary. It’s just that the silly trials are pointless and disingenuous. Remember what Barack Obama said about the terrorists currently under lock and key? He said that they’d be convicted no matter what. So, if this is the case, why the faux trials?
Now there are two reasons why the false appeal to “the law” in these cases is illegitimate. This appeal to “the law” tends toward the destruction of state sovereignty and it is a terrible softening of war.
Starting with the later, a quote widely attributed to Robert E. Lee is instructive: “It is well that war is so terrible, or we would grow too fond of it.“
This quote bears directly on why political show trials are detrimental. Ostensibly Lee was saying that the glory, pomp, and circumstance of war are so stirring of the martial soul that only the terrible nature of war can temper a misplaced love of it. Here I want to focus on that terrible nature as juxtaposed with the “legitimizing” of war through the political show trial that is supposedly meant to punish the losers. After all isn’t a regularizing of the punishment via a show trial an act that obviates from the terrible nature of war? Aren’t we essentially making war less terrible this way? Aren’t we making of the outcome of war a mere procedure of law?
Essentially a show trial makes the execution of the deposed a “legitimate” and technical outcome instead of a mere result of his losing at war. That, in and of itself, takes away some of the terribleness of war. It makes of war a “legal” issue instead of a harsh and terrible action forced upon a people ending with a terrible conclusion.
Better that the world sees the swift and terrible justice of the execution of a losing leader without all the false moralizing and empty appeals to “the law.“ You start a war, you lose… you die. It is terrible, it is harsh, it is war, all as it should be. Pretending that we are appealing to the niceties of “the law” is foolish.
Secondarily we have the proper definition of sovereignty at stake with these empty show trials. During his trial Erich Honecker, the one-time leader of East Germany, wondered how his accusers could possibly try him legitimately and he had a particularly prescient point in the question. Honecker, it will be remembered, was tried for his part in the many shootings of East German citizens cut down in an attempt to breach the famed Berlin Wall and make it to freedom in West Germany.
Honecker asserted that he was the leader of a nation officially recognized by 100 some other nations, that his nation was a sovereign nation, and that regardless of his actions he was that nation’s duly constituted leader at the time. Honecker wondered how it was that a reunified Germany, an entity that was essentially newly born and did not have any standing in his old East Germany, could possibly have the legal standing to try him? Certainly, he mused, his own old national authorities had the power to try him, but how could an authority that didn’t even exist in his day legally or legitimately try him as a criminal? These are logical and legitimate questions putting the sense of his trial in much doubt. But his trial went on unabated despite the truth of Honecker’s queries.
So, by what real authority was Honecker tried? For that matter, by what legal authority did the Allies try the Nazis? There really is only one legitimate reason that works for Nuremberg, for instance, and that is that the Allies simply won the war. That was the only real legitimacy by which Cromwell tried Charles I, too. All the faux appeals to “the law” or “crimes against humanity” or even God are meaningless jargon.
Yet we have guilty parties on moral issues. The Nazis, Honnecker, maybe even Charles I, were not nice folks. They certainly deserved their fates. So, how do we legitimately execute them?
The winner of war should simply make up the charges, present them to the world, and carry out the sentence without all the silly trappings of faux law. And what will prevent sudden mass bloodshed should the world do away with this idiotic pretense to “the law” it now relies upon? Nothing. Nothing simply because nothing would change. Nations would still war if they felt they could get away with it, enemies would still fall as a result, and if one nation went too far with it’s might-makes-right argument, they’d be opposed strongly enough to put them in check eventually. But, you see, that is how it is now even with all the childish claims that the world is following some sort of “international law” governing war.
Those that think appeals to “international law” governs how nations interact on the level of armed conflict are fooling themselves.
So, if we were to capture bin Laden, let’s do without the silly appeals to “the law” and instruct our solders to just put a bullet in the man’s head and be done with it. It would be far more honest.
Warner Todd Huston
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