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in Wilson, ed, Human Rights in the War on Terror
(Cambridge University Press, 2005).

The title of this chapter, “Fair Trials for Terrorists?” is oxymoronic. The trial of any one already labelled a terrorist cannot, by definition, be fair. But the first casualty of war is always logic. The Pentagon’s original brand name for its bombing of Afghanistan was “Operation Infinite Justice”, which makes no sense because human justice is both finite and fallible. It has to be fair of course, otherwise it is not justice, and it has to be expeditious (see Magna Carta) and it should be effective, even if that today increasingly means “cost effective”. This chapter argues that the justice we dispense to alleged terrorists cannot be exquisitely fair, but need not be rough. Above all, it must be justice that conforms to the definition our inherited Anglo-American traditions have provided; essentially, a genuine adversary process determined by judges who are independent of the prosecuting authority.

The acute problem we face is how to achieve fair trials for men and women who are demonized by the society from which their judges and jurors are drawn. In the United Kingdom, we have been trying terrorists unfairly for centuries, but at least they have been tried in courts. Whatever label is given to the proceedings in Guantanamo Bay, before “special military commissions”, they do not appear to be taking place in a forum that satisfies the generally agreed definition of a court, although they are proceedings of an adversary nature and are thus far being held in public. They are being heard by men who, for all their personal wish to be fair, are not judges with that quality of independence established by Parliament – yours and ours – in 1641. Until then, judges held office at the King’s pleasure: now, the Guantanamo judges hold office at Donald Rumsfeld’s.

Special military commissions are preferable, of course, to shooting captured enemy leaders on sight, or making them victim of what Cordell Hull, the wartime U.S. Secretary of State, described as the “historic accident”. Just suppose that tomorrow, a mosque near Peshawer is surrounded by Pakistani and U.S. troops, and out of it walks Osama Bin Laden – with his hands up. The soldier who develops a sudden uncontrollable itch in his trigger finger causes an “historic accident”. He will face a court marshal at which he will be acquitted, and the world will breathe a sigh of relief. An execution without trial, of course, but can a fair trial for Osama Bin Laden be a prospect any reasonable person could relish?

There can never be a warrant for the cold-blooded execution of a surrendered terrorist. “If you wish to teach the people to reverence human life”, as John Bright said in 1850, “you must first show that you reverence it yourself.”2 Terrorism succeeds if it tempts us to abandon the core values of democratic society, such as due process and rights to a fair trial. But it is vital to understand the arguments in favour of “historic accidents”1 and non-curial experiments like special military commissions, because they challenge us to provide a form of justice that can live up to that name but which is also workable, expeditious and effective. The Anglo-American system does not have a good record in trying alleged terrorists, be they Sacco and Vanzetti or the Birmingham Six, and some features from the developing international criminal justice systems might be borrowed to improve on that record. We may have to reconsider a few of our cherished rights, such as trial by jury. But whatever we do, we must try to try alleged terrorists fairly, simply because the alternatives are impossible to contemplate for any society committed to the rule of law.

The United States and the United Kingdom have a long history of trying terrorists, and some of it is a shared history. I make no apologies for going back to the 17th century, because that is where the Supreme Court’s majority, in Rasul v. Bush3 , found the map for habeas corpus to travel to the limbo island of Guantanamo. The 1600’s began with Jesuit religious terrorism - those Catholic fundamentalists who tried to blow up Parliament. If you want to know how they were treated, go to the Tower of London today and see the racks on which they were stretched until they confessed. You can view Guy Fawkes’ signature on his deposition before and after he was put on the rack, and you will notice how the handwriting trails away – at the end, he hardly had the strength to hold the pen.

The Star Chamber of the Stuart Kings was too much for a new breed of religious fundamentalists, the Puritans. They left England for New England in their tens of thousands, in search of Winthrop’s “city on a hill”. Many came back in the 1640s to fight the civil war, not only for democracy and the rights of Parliament, but for an end to prerogative courts like the Star Chamber, and an end to the appointment of judges “at the King’s pleasure”. They won, and then they lost, and come the Restoration in 1660, the Puritan leaders were put on trial as terrorist fanatics at the Old Bailey for a crime in 1649 that had much the same emotional impact on Britain as September 11 had on the U.S. – the execution of Charles I, when “the world turned upside down”. This crime, said Charles II’s Attorney-General, prosecuting at the Old Bailey, was hatched by fundamentalist Puritan preachers in Massachusetts, who sent over to England to carry it out men such as Sir Harry Vane, the State’s first Governor, and the Rev. Hugh Peters, a founder of Harvard University.4

Vane and Peters were convicted and publicly disembowelled. That was the penalty for terrorism, or treason as it was called then, but their courage in facing the ordeal was such that public sympathy started to swing behind them. The government’s prisons were full of other republicans that it dared not put on trial. So what to do with them? They could not be detained in prison in England indefinitely, because of habeas corpus. So some smart but devious lawyer said “Why not put them on an off shore island, where habeas corpus won’t reach?” and so they were imprisoned in Castle Orgueil in Jersey, and on other island prisons. Thus Charles II provided George Bush II with the precedent for Guantanamo Bay, but as Justice Stevens explains in Rasul, it was such a deplorable precedent at the time that Parliament passed the Habeas Corpus Act of 1679 to endow the great writ with extraterritorial effect, and it applied today to provide the Guantanamo detainees with due process.

What is also important about this period in shared U.S./ U.K. history is that during those eleven astonishing years when England was actually a republic, the basic rights of fair trial in the Anglo-American system were established. We owe many of them to a charismatic but incorrigible seditionist called John Lilburne, “Freeborn John” as he was known and loved by the mob.5 He was the Michael Moore of his day and he provoked every government beyond endurance. He was first imprisoned by the Star Chamber for refusing to answer its questions, so when the Puritans abolished it, he appealed to the House of Lords which ruled that everyone had the “right to silence” – he created the rule against self-incrimination. In due course he attacked Cromwell, who had him tried for treason, for the first time before a bench of independent judges and a jury of his peers. In that trial, he established the right to a public hearing – the open justice principle. He then insisted on his right to have the indictment translated into a language he could understand (English, because at that time indictments were in Latin). He then insisted that the prosecution provided him with particulars of the charge, and an adjournment to study them. He stopped the practice of prosecutors conferring privately with the judges. He established the right of the defendants to be treated with some respect, to have pen and paper, to sit rather than to stand at the bar, even to relieve themselves when they had to – a chamber pot was brought to him in court for this purpose, and he shared it with his jury.

Above all, his acquittal by the jury, the first acquittal ever in a treason trial in England, established in the popular mind, in England and in its colonies, an invincible and almost superstitious belief in the rightness of trial by jury. So much so that when the Stuarts returned with a vengeance in 1660 to disembowel these terrorist fanatics from New England, they could not bring back the Star Chamber, and they could not use Cromwell’s special military commissions; instead, they had to afford all defendants trial by jury. For this reason, they had to work out how to rig the trials to ensure convictions, and they hit upon vetting the jury panel for loyalty to the King. They denied lawyers to the accused, they arranged for secret meetings between prosecution and judges, and they devised methods for judicial control of the jury, such as “summing up” the evidence, i.e. saying to the jury, “well if that isn’t treason then I don’t know what is”.

The reason I have gone back to this time of a shared Anglo-American legal heritage is two fold. Firstly, as a reminder of the origins of certain of these non-negotiable fundamentals of a fair trial – for everyone, and especially for terrorists: open justice, judges independent of the prosecuting authority, equality of arms, right to understand the particulars of the charge, and so forth. (Later centuries add rights to counsel, to have the prosecution prove the charge beyond reasonable doubt and refinements of due process). Secondly, to show that certain rights have been entrenched for reasons that were not necessarily rational.

The rule against self-incrimination is one example. This rule is very valuable in protecting discombobulated defendants from being forced to talk to police immediately on arrest or during long periods of pre-trial detention. But where the prosecution has made out a prima facie case of mass murder, I have never understood why a court cannot draw a common sense inference, if the defendant declines to offer any explanation. It seems to me that the right of victims, which have for so long been overlooked in our criminal law, in fact demand that anyone credibly accused of murder, and a fortiori mass murder or crimes against humanity – should either explain the evidence away or run the risk of an adverse inference being drawn.

As for jury trial, it does not feature in any human rights treaty, and indeed there are some European lawyers who believe that anyone sentenced to life imprisonment has the right to have a reasoned judgment, rather than the one word verdict of “guilty” from the jury foreman. In Anglo-American jurisprudence and in rhetoric, we salute the jury as the lamp that shows that freedom lives, but for every Lilburne and Zenger and Wilkes there are a legion of dissidents who have been convicted by prejudiced and pressured juries. During the 19th century, English juries always convicted in blasphemy trials and usually in sedition and treason trials – the British jury has a very poor record in protecting free speech. In terrorist trials in Britain, indeed in any trial where public prejudice runs strongly against a defendant, its record is not good. After 1973, when the IRA bombs in Birmingham took 30 young lives, the U.K. lived through 25 years of terrorism; thousands of lives were lost in Northern Ireland or the mainland. In Northern Ireland, where terrorists came from all sides of the community, juries were simply impractical. In England, where alleged terrorists were always put on jury trial, there were some very wrongful convictions. This had nothing to do with procedures – all the fair trial conventions were maintained, although there was some “noble cause corruption” by overzealous policemen who doctored the evidence against those they believed (but could not prove) to be guilty. As a defence counsel in some of those trials, it always seemed that what was critical to wrongful outcomes was jury prejudice, against Irish defendants who sympathised with the republican cause. Together of course with the whole atmosphere of a so-called “terrorist” trial, with police dogs in the court precincts, sharpshooters visible to the jurors on the roof as they go into court, the security checks and so on, all screaming out: “these defendants are guilty, they must be guilty because this is a terrorist trial”. The point is that if you are accused of terrorism, your right to trial by a frightened and prejudice jury may not be of overriding value.

Grand juries in New York have been handing down various indictments against Osama Bin Laden and his lieutenants, but imagine the international objections were he ever captured and put on trial here. A New York jury, literally twelve angry men, would be too emotionally involved in September 11 to consider the evidence dispassionately. Even if the trial were moved to Denver like Timothy McVeigh’s, the events of 9/11 were so traumatic for American society that it must be doubted whether an impartial jury could be empanelled anywhere to deal with anyone accused of masterminding it. The verdict of conviction simply would not carry conviction in those remarkably many places where the opinion of the Saudi Home Affairs Minister, that 9/11 was some sort of Israeli conspiracy, is still credited. What is required in such cases is a carefully reasoned judgement, setting out incontrovertibly the evidence for guilt. Just as the judgements at Nuremburg confounded Holocaust deniers ever after, so the judgement on Al Qaeda and Taliban leaders already denounced and demonized by the Western media must be unimpeachable.

Then, inevitably, comes the problem of the death penalty, perhaps voted by a jury majority of 7-5, as in the Oklahoma bombing case. The spectacle of Bin Laden, spot-lit on a gurney, lethally injected in some amphitheatre large enough to hold the relatives of his victims who are entitled to be present, let alone all his own relatives, is almost too grotesque to contemplate. Executing Islamic jihadists provides the sentencing paradox of all times, because it gives them exactly what they want and most devoutly wish – in their belief system, a direct passport to paradise. The last thing they want is to end their life in a banal and uneventful manner on a prison farm in upstate New York. Besides, the death penalty has been firmly eschewed by most of America’s main allies, and these countries simply will not extradite alleged terrorists for trial in the U.S. without firm undertakings that if convicted, they will not be executed.

For all the problems of jury trial however, at least it is a true adversary procedure. There is an alternative procedure, announced in November 2001 by Vice President Cheney in respect of combatants captured in Afghanistan. “They don’t deserve to be treated as prisoners of war, they don’t deserve the same safeguards as a normal American citizen going through the judicial process,” he said. If convicted, “They deserve to be executed in relatively rapid order, like the German saboteurs dispatched in World War II by a special military commission.” This model, the special military commission, had not been used since 1945, when General Yamashita was convicted, one of the few Japanese generals whom historians now tell us was innocent of the war crimes alleged against him.6 It was a model rejected by Truman and Jackson for Nuremburg, and rejected by the U.K. when it was suggested for the Libyans suspected of the Lockerbie bombing. Today, there is a commission in session in Guantanamo Bay.

These commissions have been much vilified – described by the New York Times and other commentators as “Kangaroo courts”. This is a description I dislike, perhaps because I am an Australian who grew up with these lovable marsupials and cannot imagine how their name ever came to be associated with instruments of injustice. But my real objection is that they are not courts at all. They are an extension of the executive power, a prerogative body as unacceptable today as the Star Chamber of the Stuart Kings was unacceptable, in the dawn of modern democracy, to Pym and Hampden and the Long Parliament. Although the procedures of the special military commission have been much improved since that original executive order of November 2001, the basic objection remains – it is not a court, it is a panel of five military officers, employees of the same authority that detains and prosecutes the defendants. It is now apparent, after the Commission’s first hearings at Guantanamo,7 that only one member – the presiding officer, Colonel Brownback – is legally qualified. How did he get the job? Because, he explained, he is a close friend of the Major-General who is supervising the whole tribunal and who is head of the appointing authority that appoints the prosecutor as well. They are such close friends that they roasted each other at their retirement parties. Colonel Brownback, on whose legal ruling the fate of these defendants depends, admitted in answer to defence questions that he had let his law license lapse and he would need to take some continuing education courses before he could recommence practice.

Colonel Brownback is to be saluted for his candour. But he combines the role of judge and juror. He makes the legal rulings then he participates with the other four officers in deciding the facts and bringing the verdict, like a judge who retires with the jury. One of his four officer/ jurors admitted at those hearings that he had been in charge of the logistics of bringing the detainees from Afghanistan to Guantanamo – rather like the prison guard who escorts the prisoners to the court, then takes a seat in the jury box. Another of these officer/ jurors was the senior intelligence officer in Afghanistan, rather like an FBI agent who sits as a juror on a case brought by the FBI, having helped to generate the intelligence that led to the arrest.

These commissioners may lack the appearance of impartiality, but more importantly they lack independence. The appointing authority is a department of the Defence Department, which is responsible for selecting the prosecution charges and is supervised by the Defence Secretary. So, in effect, the Guantanamo panels are emanations of the Defence Department, the same Department which employs the prosecutors and the lead defence attorneys, all of whom are military officers and who have been imposed on the defendants, who will not, it seems, be allowed to defend themselves. They will be permitted to hire at their own expense private attorneys to assist those army lawyers imposed upon them, so long as those attorneys pass a security clearance. Most unacceptably, communications between defendants and counsel will be monitored, so there is no attorney-client privilege. The prosecution can withhold evidence – even “potentially exculpatory” evidence – from the lead defence counsel, even though they are army officers. At least there is the possibility of review by four respected civilian lawyers, but they do not form a court of appeal, and they are not required to hold hearings.

These commissions do not satisfy the fair trial standards in the Geneva Conventions and in other human rights instruments, and they will not be perceived by the rest of the world as satisfying those standards. A proper trial for the Guantanamo detainees is imperative, and it is regrettable that the decision has been made to put them through a process which is neither a court martial, nor a jury trial. It is regrettable because it would have been so easy to call upon real and independent judges to do the job, much more expediously and effectively than military officers who for all their wish to be fair, cannot disentangle themselves or their appointments from the U.S. military authority that brings the prosecution.

In devising an acceptable model for a tribunal in which alleged terrorists can be tried, as fairly as possible in the circumstances, we can now draw on the experience of the war crimes courts which have been established over the last decade and which have been developing the new legal discipline of international criminal justice. A justice dispensed for political and military leaders accused of war crimes, usually in the form of state terrorism unleashed against their own people. These international criminal courts have shown that procedures can be devised to protect witnesses and to protect intelligence information whilst also allowing reasonable defence challenge. They have demonstrated that acceptable verdicts can be reached by international judges, some of whom are from Muslim countries, on men charged with mass murder and mass torture.

International criminal law is now dispensed by a number of ad hoc tribunals, made up of international judges, prosecutors and defence counsel. There is the ICTY in the Hague (for dealing with crimes against humanity committed in former Yugoslavia), and the ICTR in Arusha, Tanzania (for the Rwandan genocide). A somewhat different model, the Special Court for Sierra Leone, on which I sit as an appeal judge, has a minority of judges and lawyers appointed by the country’s government, working together with a majority appointed by the U.N: it is tasked with bringing to justice those who bear the greatest responsibility for the atrocious ten year war which ended in 2002. The Khmer Rouge genocide in Cambodia may soon be subject to a similar retributive process – a quarter century too late, but better late than never. The International Criminal Court is now up and running.

There is no reason to be starry-eyed about the justice these courts are dispensing: it is excruciatingly slow and unacceptably expensive and there have been examples of serious inefficiency and even corruption. The U.S. government’s refusal to contemplate an international tribunal or indeed any court at all, for the Guantanamo detainees and the “playing card suspects” in Iraq, is understandable on these grounds, which are infuriating to supporters of international criminal justice as well. But the reasons for these failures are being addressed: commentators have variously attributed them to diplomatic hostility, to U.N. beurocracy, to nepotistic appointment systems, to some judges who are too slow or simply want to stay in office for as long as possible; to overzealous prosecutors who overload indictments; to defence lawyers who spin out trials and “fee split” with defendants and their families; to NGOs which insist on elaborate and unnecessary protections for the accused. Such issues can, where appropriate, be dealt with, although international sensitivities must be overcome.

What needs to be emphasised is just how new the experiment is. Nuremburg was a “one off”: the 23 defendants were charged, tried and convicted within a year, because Germany was under allied occupation and the German people had turned against the Nazis – the three acquitted defendants could not be released for fear that they would be lynched. Moreover, as Justice Jackson explained, the trial owed its success to the ready availability of incriminating documentary evidence, as a result of “the teutonic habit of writing everything down”. There are no “night and fog decrees” printed in Sierra Leone or Kosovo or East Timor – evidence comes much more painstakingly there, through informers and inferences from mass graves.

Individual criminal responsibility is new and its exponents must be given time to sort themselves out. A good job is being done so far with the jurisprudence but much less so with court management. And there are serious problems with procedure, as the Milosevic trial has so painfully demonstrated. What has to be remembered is that in national courts, persons accused of crime – and they are very often criminals – will accept the court and play the justice game in the hope of a legitimate acquittal because their lawyer establishes for example that the prosecution has failed to discharge the burden of proof. In war crimes cases, however, some defendants will depict themselves as victims of “victor’s justice” and will want nothing more than to destroy the court or at very least to conduct propaganda for their cause from the dock – the danger Winston Churchill feared from putting Hitler on trial. Judges, programmed to give fair trial to defendants who play by the rules of the game, can be bemused when confronted with defendants who do not believe that the game should be played at all and whose agendas will be – sometimes openly, sometimes not – to sabotage the playing field.

How do you give fair trial to a person who does not accept your right to try him? That has been a problem every since our republican ancestors brought Charles I to trial on charges of tyranny – in effect, the charge against Saddam Hussein. They set up a special court, but the King refused to recognise it: “By what authority am I called hither?” He would not put up a defence or even enter a plea – so they convicted him according to the law of the time and made him a martyr who returned, in the form of his son, to have the judges disembowelled eleven years later. At Nuremburg, Herman Goering at first decided to follow the King Charles gambit: he called all the defendants together and instructed them to say only three words to the court – a catch cry of one of Goethe’s warrior heroes, loosely translated as “kiss my ass”. It was probably the prospect of seizing the opportunity to make their excuses to posterity that changed the defendants’ minds: they played the adversary game, attracted by the fairness of its rules (at least, by comparison with those applied in Nazi courts) and by so doing gave the Nuremberg trial its enduring credibility as a justice procedure.

Milosevic however has tried to have it both ways: he denounces the court as having no authority over him, yet instead of staying in his cell and confining his appearances to contesting the jurisdiction (the tactic of King Charles) he struts and frets his hour – regrettably, his years – upon the stage. The court has bent over backwards to be fair to him – by providing no less than three distinguished amici to take all available points, as well as permitting him to self-defend at inordinate length. Despite his high blood pressure, this defendant has insisted upon his right of self-defence, a course which has – as he must have known – aggravate his medical condition such that the court has lost 66 full hearing days and has had numerous early adjournments, even before it had to resort to a three day trial week and then allow six months to elapse after the close of the prosecution case so that the defendant could rest before his opening statement.

In hindsight, it may be thought that the court has been overindulgent to this defendant – certainly it has allowed him to dictate delays that would never be tolerated in a national court. With hindsight, again, the court may have been mistaken to combine the three indictments, relating to his command responsibility for ethnic cleansing respectively in Kosovo, Croatia and Bosnia – into one big indictment, which means the trial may last for five years. Certainly it was a mistake, for a trial of even half this length, not to make provision for an alternative judge (there were four of them at Nuremburg) in case one of the three trial judges became incapacitated. Sadly, the presiding judge, Richard May, died in mid trial and was replaced by a jurist who had to read up on the past two years of prosecution evidence from the transcript – an obviously unsatisfactory expedient, but preferable to starting the trial all over again.

Milosevic’s health problems were so disruptive that the court eventually imposed counsel upon him, directing one of the amici to take that position, against the defendant’s wishes and without the defendant’s instructions or cooperation. The Appeals Chamber indorsed the defendant’s right to represent himself, but as a qualified right which should not be permitted persistently to obstruct the proper and expeditious conduct of the trial. The trial chamber order had relegated Milosevic to a subsidiary role but the Appeals Chamber insisted that he must be permitted to take the lead in presenting his case, e.g. by questioning witnesses and making any motions he wished, relying on imposed counsel only to avoid unnecessary delays.8 Whether this compromise will work, in the case of a defendant who has exercised his right of self-defence with such damage both to himself and to the trial process, remains to be seen.

These problems with the Milosevic trial do not show that fair trials for state terrorists are impossible, but rather that international justice is in its very early and rudimentary stages. That trial is part of a learning process and we still have to learn how to respond to the defiant gage thrown down by Charles I. In the case of non-cooperative defendants, and/ or those whose agenda is to destroy the whole process, fairness has its limits – or rather must be balanced by fairness to the victims of the alleged crimes who have rights as well, and by the imperative of upholding the rule of law. My own view is that persons who are indicted for crimes against humanity by independent prosecutors and who are committed for trial by independent judges must be required to take that trial unless they are terminally ill or utterly incapable of giving instructions. If they refuse to acknowledge the court or to plead or to participate, then they should forfeit the right to adversary proceedings and should be tried by an inquisitorial process used in many continental countries and throughout South America, where a judge conducts an investigation irrespective of the cooperation of the defendant and reports to a trial court at which the conclusions may be challenged (or not) by the defendant. If a defendant accepts an adversary trial he is entitled to defend himself, but if by so doing the consequence is persistent delay and disruption, the court should have the power (subject to appeal court direction) to turn itself into an inquisitorial bench of “examining justices” to investigate whether the defendant is guilty and to present a report on that question to another trial chamber.

This is not a perfect solution and the “inquisitorial” or public enquiry alternative would need to be carefully worked out, but it would ensure that defendants do not hold the court hostage by refusing to cooperate or by insisting on self-defence in circumstances where they put their health at risk and disrupt the proceedings in consequence. It would also end the professionally unpalatable position of counsel forced to represent someone who does not want to be represented – by them or by anyone else. The approach is essentially that of carrot and stick: the adversary trial procedure as developed by Anglo-American jurisprudence offers the best guarantees for the rights of defendants but only if they accept that jurisdiction and the rules of the court. If they refuse all cooperation or offer it in a form which entails persistent disruption, they will be made subject to an inquisitorial process whether they like it or not – a process which passes the fairness muster in many countries of the world and which does not depend on the defendant’s involvement (although obviously benefits from it). Making these two quite different models alternatives, rather than merging them discordantly as the ICC system tries to do – e.g. by involving judges in approving investigations and by allowing counsel to appear for victims – may well be the best way forward.

Whatever happens to the ongoing trial of Slobodan Milosevic, it is the trial of Saddam Hussein that the world awaits. That is particularly an American responsibility, shared to a lesser extent with the U.K., but it is crucial to get it right. There is not much chance of it happening while Iraq remains in a state of civil war, but there are fifty defendants charged with international crimes, to be put through a process which must satisfy international standards. The simplest way of doing that is to involve international judges and prosecutors and defence lawyers, working alongside their Iraqi counterparts – a court modelled on the Sierra Leone tribunal, perhaps. At any event, it will be crucial to support this process: whether you agree with the Iraq invasion or not, you must surely support a fair and effective trial for members of a regime widely accused of genocide and terrorism against ethnic groups like the Kurds and the marsh Arabs. Genocide has, more recently, raised its intolerable head in Darfur. There is a court established by the U.N. to deal with such cases and the ICC is ready to do so once the Security Council makes a reference. The mass killings in Darfur have been described by both congress and Colin Powell as genocide, and that engages an obligation under the Genocide Convention (ratified post-Bitburg by President Reagan) to punish them. Regrettably, U.S. hostility to the ICC may frustrate international efforts to bring justice to the Sudan, given the lack of any other available tribunal.

In prognosticating the future, I do not see that hostility is permanent although it will only materially melt once international trial processes show themselves to be capable of dealing with defendants effectively and cost effectively. That will take some more years of (quite literally) trials and errors, with attention focused on streamlining procedures – a somewhat complex subject – and improving the quality and mindset of lawyers involved in those procedures – a delicate and embarrassing task which has yet to be squarely confronted. It may perhaps be said – I hope not too optimistically – that the case for international justice has been conclusively established and there has been a momentum to the jurisprudence which has now settled the core elements of international crimes. What must next be done, and it will be a long slog, is to reform the delivery systems, the procedures and personnel, so that future trials of political and military leaders who have deliberately breached international law may be confidently expected. There is nothing wrong with “victor’s justice” so long as it means bringing victors to justice if they have committed atrocities, as well as their defeated enemies.

As long ago as 1937, the League of Nations proposed an international criminal court for terrorist offences. Now we have one, but it is a court to which the U.S. administration seems implacably opposed, although to its credit it has been very supportive of ad hoc courts like the ICTY and the Special Court for Sierra Leone. I do not want to revisit the debate over the ICC, but rather pose these questions: Given that ad hoc tribunals are acceptable to try political leaders for international crimes of mass murder, why are they not acceptable to try international terrorists on the same charge? For the Guantanamo Bay detainees, why not opt for a tribunal that the countries where they come from – including the UK and Australia – can accept? What is lost by having an independent tribunal rather than a special military commission? What makes anyone think that the verdicts are going to be different, in any significant respect? Is the bottom line answer that the military wants a panel that it can control and which will convict everyone it wants convicted, and fears that an independent court may acquit a few of those people because of lack of evidence? If that is what it all boils down to, what sort of example is being set for respecting the rule of law?

I raise these questions with some diffidence. It has become evident that in Guantanamo, the commissioners, as well as the prosecution and defence lawyers, are making the best of a difficult brief. Moreover, special commissions are at least a form of adversary process. There are many who would deny any process at all to those believed to be major terrorist operatives. Bill Clinton claims to have authorised, secretly, a CIA assassination of Bin Laden after the Embassy bombings in Nairobi in 1998. No doubt such authorisation is still in force, and it might perhaps be justified in the case of hot pursuit, but not in the event of surrender or capture. The case for executing captured enemy leaders was made memorably by Winston Churchill, in his argument with Roosevelt and Truman over whether the Nazi commanders should be put on trial at Nuremberg. Churchill was impeccably opposed to this trial, and argued that the top 75 Nazi leaders should be treated as outlaws, and face a firing squad as soon as they were captured. To give them a trial, he argued, would allow them to turn the dock into a soapbox, to justify their policies and to blame the allies. This was a historic debate between the British, who opposed any kind of trial, and the Americans who argued for due process. It was a deadlock, broken by the casting vote of Joseph Stalin, who loved show trials to long as everyone got shot in the end. He voted for the Amercian position, and so Nuremberg came to pass.9

There are those who regard the Milosevic trial as partly vindicating Churchill’s fear, and argue that Saddam Hussein and Osama Bin Laden should not be given the oxygen of publicity from an open process. But this ignores the fact that the nature of that process it tends to demystify dictators and terrorist, by confronting them with evidence of the moral squalor in which they have operated, of their hypocrisies and cruelties, and of the barbarous results of their rhetoric and theology. Any cult status they may have acquired will dissipate over months of evidence about their mens rea for the commission of crimes against humanity. Far better I think to reduce their status in the dock, as they are seen listening to evidence of how they have engineered the killing of innocent civilians, rather than to leave the world with the last picture of their martyred body stretched like that of Che Guevara’s on a mortuary table. Trials can have a cathartic impact in demystifying defendants who have appeared heroic to their followers, and in helping to deprogramme the deluded – although logic obviously has its limits in persuading religious zealots. But by exposing the inhumanity of terrorist leaders through a process which accords them the fundamental human rights that they denied to their victims, a standard may be set which will emphasize that international justice is truly international.

For that reason and even for the alleged mastermind of September 11, I would not balk at the prospect of giving as fair a trial as security considerations would permit. The best argument for that course is still to be found in the philosophy of Jackson and Truman, in their dispute with the British over the fate of the Nazi leaders:

“To free them without trial would mock the dead and make cynics of the living. On the other hand, we could execute them or otherwise punish them without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and not sit easily on the American conscience or be remembered by our children with pride. The only other course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and horrors we dealt with will permit, and upon a record that will leave our reasons and our motives clear.”10


1Hull said “If I had my way, I would take Hitler and Mussolini and Tojo and their accomplices and bring them before a drumhead court martial, and at sunrise the following morning there would occur an historic accident.” Minutes of Moscow Conference, November 1943, quoted by Hartley Shawcross, Tribute to Justice Jackson, (New York Bar, 1969)
2See G Robertson, The Justice Game, (Vintage, 1999), p103
3Rasul v. Bush
4An Exact and Most Impartial Account of the Indictment, Arraignment Trial and Judgement of nine and twenty Regicides”, 31 October 1660, p153 (Trial of Hugh Peters)
5See Pauline Gregg, “Freeborn John” (Dent, 1961)
6G Robertson, Crimes Against Humanity, (New Press, 2001), p502
7The following quotations are taken from Jess Bravin’s coverage of the first week of hearings of the Special Military Commission which sat at Guantanamo Bay. See Wall Street Journal, “As War Talks Opens, Legality is Challenged” 25 August, 2004, and following articles on 26, 27 and 30 August
8Decision on the assignment of defence counsel, ICTY Appeals Chamber, 1st November 2004.
9See Robertson, Crimes against Humanity, p228
10Report, 1 June 1945, Jackson to Truman, cited by John and Anne Tusa, The Nuremberg Trial (Macmillan, 1983), p66

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