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FAIR TRIALS FOR TERRORISTS?
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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