JUSTICE AND THE ENEMY
Nuremberg, 9/11 and the trial of Khalid Sheikh Mohammed
By: William Shawcross
Published by: Public Affairs, New York, 2012
During the US presidential election campaign of 2008, Democrats’ nominee Barack Obama made much of his claim that President George W Bush had mistreated Al Qaeda suspects held in Guantanamo Bay. Obama promised that, if elected president, he would arrange for terrorist suspects to be tried in ordinary US courts. The idea, he argued, was to bring them to justice, not to decide their fate in ad hoc military tribunals. The first Al Qaeda suspect to be thus submitted to ordinary American justice was to be Khalid Sheikh Mohammed, an ethnic Baluch and a citizen of Pakistan who had been captured by Pakistani police and handed over to the US.
Sheikh Mohammed, known with his initials of KSM, had told interrogators that he, and not Osama bin Laden, had been the mastermind of the 9/11 attacks against the United States. Bin Laden’s role had been largely limited to providing the money needed for the operation. Because most victims of the 9/11 attacks had been in New York, it was there that KSM was to be tried in public.
The prospect of an Al Qaeda master terrorist being tried in an ordinary American court was provocative enough to persuade William Shawcross, a distinguished British author and journalist, to pick it as the subject of a new book.
Very quickly, however, Shawcross realized that he was dealing with a far more complex question, one that his late father Lord Shawcross had also faced as a prosecutor during the trial of Nazi leaders in Nuremberg after the Second World War. The question was: how to judge an enemy that recognized no rules and fought in total rejection of the laws of war as approved by the international community over the past two centuries.
In the event, the KSM trial, as promised by Obama, never took place. The very idea of allowing a master terrorist to use the niceties of US law to escape punishment was enough to scandalize a majority of Americans. Very quickly, Obama changed his tune. Instead of trying to put Al Qaeda suspects on trial in ordinary courts, he decided to kill as many of the as possible. Over the past three years, American drone attacks in Afghanistan, Pakistan and Yemen have claimed the lives of at least 3000 individuals suspected of links with Al Qaeda.
This month, a new book by one of the men who took part in the operation to kill Osama bin Laden punctured Obama’s claim further. The book shows that the mission was to kill bin Laden, not to capture him for a possible trial in New York. When he saw that the game was up, bin Laden apparently wanted to surrender. But no one wanted to capture him alive.
Thus we have three American approaches to terrorist suspects.
The first is that of former President Bush. Under it, terrorists are kept outside the United States and ultimately tried by special military tribunals modified to allow the suspects legal assistance. The method has not been very successful. Hundreds of suspects have spent years in Guantanamo camps without being formally charged. Many have been freed for lack of evidence. Some of those freed have quickly returned to terrorism and managed to do more killing.
The second approach, promoted by Obama during the 2008 campaign, has proved to be a sham. Obama’s promise of “fair trial” for Al Qaeda had been a demagogic ruse to fool his supporters on the radical left. After the killing of bin Laden in Abbottabad, Pakistan, the German weekly Der Spiegel criticized Obama for the operation. Obama should have “put bin Laden into the deck of an international court.”
The third approach, practiced by Obama in opposition to what he had preached is to kill the suspects, thus obviating the need for any trial, fair or unfair. However, that method, too, has not worked as there seems to be no reduction in the number of terrorists recruited by Al Qaeda, the Taliban and other similar terrorist groups.
Shawcross’s book is of great interest because it probes the possibility of a fourth approach.
Could the Western democracies that now hold hundreds of terror suspects develop a code of conduct that applies to dealing with this new kind of “enemy”?
“Democracies must be self-confident and strong enough to defend themselves against the forces of tyranny,” Shawcross writes.
The question is: how?
Shawcross believes that many lessons could be learned from the Nuremberg trials. At the time, Churchill wanted the Nazi leaders captured by the allies to be simply hanged without trial. For his part, Stalin insisted that up to 50,000 Nazis, often picked up at random, be shot to set an example. As often in history when a more civilized protagonist faces a barbarous adversary, the Western democracies faced the risk of being dragged into the behavior pattern of their Nazi enemies. Largely thanks to American rejection of both Churchill and Stalin’s proposals, the allies avoided stooping so low. They agreed that the Nazis belonged to a special category of criminals and thus could not be tried with rules that applied to cases of ordinary criminality.
Shawcross believes that a similar approach to crimes committed by Al Qaeda could go a long way in building on Nuremberg’s jurisprudence.
However, this book is not just a dissertation on terrorism and the law. It also provides a fast-paced introduction to the ideology that has produced Al Qaeda and its imitators. According to Shawcross, that ideology is designed to set Al Qaeda terrorist in a category different from numerous other terrorist groups of the extreme left and extreme right that have caused murder and mayhem in more than 100 countries across the globe.
The debate regarding what to do with this new type of enemy is likely to go on for some time yet. What is surprising is that so far we have seen little effort to develop those parts of international law that could help deal with the problem in a resolute manner and in fairness. Shawcross’ book is a timely and important contribution to persuade the major democracies to take up the issue.