The Spanish Inquisition
Remember, the Nuremburg trials held after world war two? One of the charges brought was that of torture which, together with the deportation, other abuses and eventual murder of millions of people; gypsies, jews, political opponents and others held to be enemies of the state, was upheld as a crime against humanity.
Various defenses were advanced. The Axis nation was not a signatory on some international treaties relating to war crimes and crimes against humanity. People argued they were living in an authoritarian state and simply following the orders of others. It was suggested what was done was absolutely legal under their national laws at the time. Clearly things were done in the heat of battle and at a time of extreme threat to the nation.
All these defenses were held to be over ruled by principles of international law or simply did not wash.
With all this in mind, the NZ Herald ran a story from Associated Press with the headline Guantanamo prosecutors stunned by ruling. The ruling in question was that evidence obtained through torture would not be admissible.
It is worth noting the court who made this ruling was a civilian court of law, and not some sort of military tribunal.
What is really interesting here is the notion the prosecution was stunned. Why would they be stunned that a civilian court wasn’t keen on torture? The prosecution represents the people who chose to abandon the law when they practiced kidnapping and torture. Both clearly defined as international crimes against humanity, the same crimes those at Nuremberg were accused and convicted of. Where did they get it into their heads they would be able to slip back into a civilian legal framework, like a Houdini reappearing act, with magically obtained testimony? I can’t think of a better description of hypocrisy.
The courts options here were always going to be very limited. Either the legal system would implode on itself by turning a blind eye to torture of the accused, or it had to follow the well worn and established principles in the rule of law. If they had ruled torture was admissible in a civilian court what kind of doors would have been opened? What had a huge victories here was the US constitution and rule of law.
If torture were a miraculous and reliable tool for obtaining truth the Spanish Inquisition would be held up as model example of justice in action everywhere. As is well known, torture is a very reliable way of obtaining a testimony, but whether or not that testimony has any relationship to the truth is sadly less reliable.
And so we dig out the reason why most war crime prosecutions are not bought to courts of law, but to military tribunals. At their best they are able to stretch the rule of law in circumstances where normal rule of law is not possible. Nuremberg was a modified military trial, although not strictly a traditional one. At their worst we find the root to the meaning of the expression ‘Kangaroo court’.
America should give itself a big slap in the face. Secret evidences, night time kidnapping flights and torture. It’s the stuff american lawyers prosecuted and convicted germans for in 1947.
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