The concept of prescription for crimes committed before a certain date is obviously inspired by the restriction adopted at the Nuremberg Trials. As for the reasoning behind the INC document, it is based on premises that are listed in the first chapter of the document:
There are crimes that are so serious as to mandate universal enforcement, jurisdiction, and responsibility. These are what the legal system calls crimen contra omnes, ‘crimes against all’. Such crimes have been committed inside Iraq on a large scale since July 1979, following the accession of Saddam Hussein to the Presidency of the Republic in a bloody purge of the upper echelons of the Ba‘th Command.
If such crimes are to be left unpunished, a terrible injustice will have been perpetrated upon the survivors of these crimes, along with their families. The suffering of the victims will not have been honored and redeemed by Iraqi society at large. This is bound to leave a legacy of bitterness and pain that will live on to haunt the Iraqi body politic for generations to come. The welfare of the victims, and of future generations of Iraqis, demands that justice be done and be seen to be done.
The document realizes the aberration that such a general statement might lead to. For in Iraq, much more extensively than in Chile or Argentina, and even more than in East Germany, something like a fifth of ‘the economically active labor force in 1980 were institutionally charged with one form or another of violence (whether policing, defending, or controlling the society at large) … Many, if not most Iraqis, are simultaneously victims and victimizers.’
Obviously, nobody can try a fifth of a country’s population, and without being very arbitrary it would be impossible to draw a line to define the degree of the crimes of this fifth part. Let alone the fact that the other four parts, due to the high ratio, are obviously brothers, sisters, spouses and parents of the members of that fifth part.
How to avoid a reaction like that of Paulina without at the same time falling into the hopeless cynicism of Mathias Wedel, the East German author of Fellow Travellers, a book in which he attacks fellow authors who wrote under the former Communist regime? When it became known that he himself had made reports to the Stasi, under the name of Milan (by now we realize that there was nothing surprising about such behaviour in East Germany), he answered that an author does not need to be a ‘moral model … Goethe was a swine, so was Brecht. Why not me?’
The business of justice is full of injustices. That is the problem we face when we go seeking to find it. Why is it that those with overall responsibility for acts of torture and genocide should be judged, while the people who did the killing, torturing and dismembering of their fellow humans are exempted from punishment? Wouldn’t it be better if the people who carried out the crimes in practice and committed atrocities with the clear conscience of those who are ‘only following orders’ were made an example of? Since it is obviously impossible to bring everybody to court, it is perhaps more practical to make choices. But even these choices will always be open to challenge. An analogy that makes me uneasy with myself comes to mind. Whenever I do the shopping for a meal that has meat in it, I buy pre-packed meat in a package that has no obvious relation to the animal that was slaughtered for that purpose. I can never buy meat at a butcher’s without feeling sick at the sight of parts of dead animals, let alone the sight of a whole slaughtered sheep or chicken. I know that I am acting as a hypocrite, as if the act was not committed just because it was not committed before my eyes. This hypocrite has no right to pretend to be more sensitive than others.
The business of legal justice in a plural society is not an easy matter. In a totalitarian society, it is not even in the running; it is at best a parody. Judith N. Shklar, in Legalism: Law, Morals and Political Trials, does a fascinating job in showing how difficult it is to combine justice, morality and politics, and how decency can be faced with difficult choices:
For a social action to be termed just, however, one must first agree that it is in conformity with one’s system of rules, and since in any conceivable modern society there are always several competing systems of rules, it is not possible to say that any rule or act as such is just. […] Justice has been called a ‘quasi-morality’ because it is not a virtue that is always relevant or valued. In personal relations it has not always been rated very highly.
Shklar deals at length with the enormous legacy of Nazi horrors. The Nuremberg Trials still provide a rich source for thought on this matter. But lately we have been submerged with other cases of crimes against humanity, war crimes and horrible massacres arising out of ethnic conflicts.
In the last five years, just at the point where we are about to say farewell to the twentieth century, there have been ninety armed conflicts in the world, which have combined to create a population of 20 million refugees. Only four of these conflicts have been wars between states. The other eighty-six have been wars of hatred between peoples. Civil, ethnic and tribal conflicts. And they have not happened only in the ‘Third World’.7
In the course of 1996–7 we had the misfortune of having to witness on our TV screens and in our daily papers a series of horrible massacres. For me, watching became a nightmarish exercise in facing up to my own memories. The experience of Lebanon was repeating itself in countries as far removed as Rwanda and ex-Yugoslavia. The difference lay not in the faces and the looks of the people that I saw on TV. The Serb, Croatian and Bosnian fighters could have been carbon copies of the Lebanese militias; they held their rifles and their cigarettes in the same way that Said held his; they relaxed after combat with the same nonchalance as that of Latifa and her comrades in their headquarters; they had a similar way of suddenly getting up and going forward on some dubious task or mission. The eyes of the Rwandan refugees also showed the same anguish as those of Lebanese families hiding in the shelter of their buildings, or of a driver showing his identity card at a checkpoint composed of militia from the opposite religious sect. The difference was not there. It lay rather in the concern with justice and retribution, and the means that the international or local communities were proposing in order to deal with these situations.
Two recent cases serve to sow confusion: the case of Dusko Tadik, a Serb from Bosnia who appeared before the International Court of Justice at the Hague, accused of war crimes; and that of Ngoyambe, a seventeen-year-old youth and one of the first Rwandans to be brought before the Kigali tribunal set up to judge those responsible for the genocide.
At the time of his trial, Dusko Tadic was thirty-nine years old. He had been named as the executioner at the Omarska camp in the north-west of Bosnia, where Bosnian prisoners were kept. He was recognized by some of his surviving victims while visiting his brother in Germany. He was caught and charged with war crimes, complicity in genocide, murder and rape. He was brought before the International Court of Justice at the Hague, to be judged by a tribunal that had been created in 1993 by a resolution of the UN Security Council. The tribunal’s task was to judge the crimes that had been committed in ex-Yugoslavia, along the lines of the Nuremberg Trials. The things that Tadic was accused of were so horrific that I could not bring myself to read the description of his alleged tortures, and the savage humiliations that he imposed on his prisoners and forced them to do to others. The descriptions made me sick.
The point is that in the same issue of Le Monde newspaper, 28 April 1995, there were three articles analysing and describing the case of Tadic. Three journalists who had thought over the problem could not agree, though, on the benefits, rights or merits of such a trial. The editorial of Le Monde that day called this trial the ‘alibi of the hypocrites’. It indicated the incongruous analogy with the Nuremberg Trials:
As an excuse for the level of modesty of the case, The Hague’s authorities for this case said that they would cite as suspects Radovan Karadzick, the chief of the Bosnian Serbs, as well as General Ratko Mladic, the commander of his army.
‘Is it enough to give public opinion the illusion that justice will be done for war crimes in Bosnia?’ asks the editor.
The column concludes with an angry tone that this tribunal is inventing something ridiculous in order to hide its total impotence and passivity towards ‘ethnic cleansing’.
This is not exactly the same attitude expressed by Pierre Georges, on top of the back page of the same issue of Le Monde, who writes despising the likes of Tadic: ‘History is full of these non-guilty executioners, assassins. Current events too.’ Nonetheless, Georges too is not at ease with ‘judging instead of preventing because one cannot do better … The world according to Tadic is not afraid of these judges.’
Neither is the world according to Ngoyambe, the Hutu teenager waiting to be judged in Kigali, where he faces accusations of six murders and a charge of genocide. His reaction? He is not afraid of judges as such. In his opinion, ‘The only danger is if the judge is Tutsi … If he is Hutu, there will be no judicial error.’
At the time when Ngoyame was speaking, 32,000 other prisoners were crammed into Rwanda’s prison and detention centres, also under the accusation of genocide. Among them were hundreds of children under fourteen years of age, whom UNICEF was attempting to have transferred to juvenile centres.
To the reasonable question of what ‘judgement’ might mean in such circumstances, the answer of Rene Degni Segui, Rector of the Faculty of Law in Abidjan and founding President of the Ivory Coast League of Human Rights, is pertinent: ‘We have to break with the African tradition of impunity. In Rwanda and in Burundi there had been many previous waves of massacres. The Prefects and the Town Chiefs responsible for these massacres have been allowed to stay in their positions. Sometimes they have been rewarded.’ Segui is in favour of bringing the culprits to trial, for he believes in the preventive and dissuasive role of judgement for future occasions, and in neighbouring countries. His fear is that ‘the immediate causes of the genocide – the refusal of alternation and incitement to ethnic hatred – are in bud in all African states.’8
Young Ngoyame and the not-so-young Tadic both claim their innocence. They were following orders. The same difficult old story, again and again. They all were and are performing their duties. Hannah Arendt repeats a dialogue recorded by an American journalist in November 1944, and calls it a work worthy of a great poet:
Q: Did you kill people in the camp?
A: Yes.
Q: Did you poison them with gas?
A: Yes.
Q: Did you bury them alive?
A: It sometimes happened.
Q: Were the victims picked from all over Europe?
A: I suppose so.
Q: Did you personally help kill people?
A: Absolutely not, I was only paymaster in the camp.
Q: What did you think of what was going on?
A: It was bad at first but we got used to it.
Q: Do you know the Russians will hang you?
A: (Bursting into tears) Why should they? What have I done?
The paymaster meant that he was following orders, no more, no less. I don’t know whether he is lying to himself, or whether he is being absurdly sincere. A sincerity like that of Ngoyambe, who is in a way incapable of guilt, for the world according to him is divided into only two spheres, that of the Hutus and that of the Tutsis. In his opinion, any punishment would be very unfair indeed.
The responsibility or the innocence of those who ‘simply followed orders’ is the most difficult to assess, and thus to judge. From Eichmann and Rudolf Hess to Tadic and Ngoyambe, and most probably to the men who blinded Iraq’s children in order to instil fear into their parents, we hear repeatedly, whether in good or bad faith, that they had no choice … that they were following orders … that they could not be held responsible … and thus should not be punished. Up to now the only argument that could be raised against those who ‘simply followed orders’ has been that some, a few, a tiny minority chose not to follow orders.
Here it is worth remembering the case which Günter Grass has raised9 – that of the deserters from the German armed forces during the Nazi period – which unfortunately aroused much less attention than that of the killers of that period. According to Grass, 20,000 Germans were court-marshalled and sentenced to death. They were hanged in the most brutal ways possible, and exposed in public with signs on their bodies saying ‘I am a coward’. The hanging streets were called ‘Hitler’s alleys’ for the occasion. These ‘real heroes of the war’, as Grass sees them, are still filed as cowards and deserters. They are the ones who refused to follow orders. Do they not deserve rehabilitation and justice at least as urgently and as publicly as those who gave the orders that they refused to obey? Or are people less concerned because of some nationalist streak in the victors’ camp, whereby we hide behind the ‘collective responsibility of the Germans’ rather than opting to look into this dark grey area of the human beings that we are – the human beings that Primo Levi explores with such painful lucidity?
Primo Levi, who did not always pardon but who worked very hard to be ‘free of the vice of hatred’, insists on the distinction between those who inspired, held power and initiated and those who were their victims and acted as executioners for them. He describes at length and in frightening detail the horrific ‘social organization’ of the concentration camps, a ‘totalitarian’ mini-society of slavery and death, in which the victims were forced by the German administration to participate in the torture and killing of other inmates. Levi speaks with dark words of a grey area, the space that separates the persecutors in the Nazi camps from their victims. This area, he says, is never empty:
It never is; it is studded with obscene and pathetic figures (sometimes they possess both qualities simultaneously), whom it is essential to know if we want to know the human species, if we want to know how to defend our souls when a similar test once more looms before us.
Levi speaks about (and for) those prisoners who were chosen by the Nazi concentration camp administrators to run the gas chambers and the crematoria. He speaks of them as victims, who were already too destroyed psychologically and physically to have shown any resistance. Often they performed their deathly duties without creating problems. But we should remember that not all accepted. There were exceptions. Levi tells of a group of 400 Jewish prisoners from Corfu who rebelled and refused to perform tasks that would have turned them into the executioners of other inmates. They were immediately gassed, all of them.
It is necessary, however, to declare that before such human cases it is imprudent to hasten to issue a moral judgement. It must be clear that the greatest responsibility lies with the system, the very structure of the totalitarian state, the concurrent guilt on the part of the individual collaborators, both large and small.
Levi is all the more tortured by the knowledge that the fact of being a victim in such totalitarian situations does not exclude culpability. In Republic of Fear, Samir al-Khalil describes a similar situation – the attempt, often successful, by Saddam Hussein’s totalitarian regime in Iraq to turn normal, decent people into collaborators with the crimes of the dictatorship.
Who among us can answer honestly how they would resist if they had to face what some of Saddam’s victims had to face: a man’s wife tortured and raped before his eyes … the torture and blinding of his children … Who can say that they would refuse the order to commit atrocities in the face of such things?
There is very little place for humanity in these inhuman settings, and when people claim that it was difficult as jailers and executioners, in the Argentinian army, or in the concentration camps, ‘at the beginning … but we got used to it’, they are not lying. They are not even finding excuses. They are merely describing a reality that has been all too common.
Remember Hannah Arendt’s reply to Germans who said that, after what happened in the thirties and forties, they were ashamed of being German: ‘I have often felt tempted to answer that I am ashamed of being human.’10 Many centuries before, the great Arab poet al-Mutanabbi had written bitter verses deploring this same human condition:
I am doubting the one I chos
e
for I know he belongs to the human race.
Arendt comes close to Levi’s belief that the persecutors engulf their victims in their crimes when she says – one is tempted to say almost cynically – that ‘German refugees, who had the good fortune either to be Jews, or have been persecuted by the Gestapo early enough, have been saved from the guilt is of course not their merit. Because they know this and because their horror at what might have been still haunts them, they often introduce into discussions of this kind that insufferable tone of self-righteousness which frequently and particularly among Jews, can turn into the vulgar obverse of Nazi doctrines, and in fact already has.’ One wonders whether Arendt is concerned more with compassion for the guilty than with the judgement of the self-righteous.
That woman who was frantically assaulting that prisoner with the hammer, and who still haunts my horrified memory, had no sense that she was guilty of anything. In that civil war, as in all other civil wars, the areas of neutral space in which our daily life as human beings is ordinarily lived was reduced to almost nil. People struggled to maintain that space of neutrality in the corridors of their homes, turning them into shelters into which they piled anything that might remind them of civilization while at the same time caring for others.
The woman with the hammer had lost contact with normal reality. The people who tried to calm her down could not decide whether she was mad, or whether she was simply doing on an individual basis what was done routinely every time an ‘enemy camp’ was seized. I still find myself wondering whether a similar number of people would have tried to stop the madness if the person holding the hammer had been a male.
Leaving Beirut Page 15