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Criminal world

A Personal History of the War Crimes Tribunals | Nuremberg, 9/11 and the Trial of Khalid Sheikh Moha

All the Missing Souls: a Personal History of the War Crimes Tribunals

David Scheffer
Princeton University Press, 570pp, £24.95

Justice and the Enemy: Nuremberg, 9/11 and the Trial of Khalid Sheikh Mohammed
William Shawcross
Public Affairs, 256pp, £17.99

“Assad to the Hague" has been the chant of the Syrian protesters, symbolising both the popular expectations fostered by developments in international criminal law and the uphill struggle to fulfil them. But with the International Criminal Court (ICC) indictments of the Gad­dafis and next month's verdict on Charles Taylor, progress is being made.

Meanwhile, at Guantanamo's "Camp Justice", a US army lawyer will soon preside over a process in which US army prosecutors and US soldier jurors will convict Khalid Sheikh Mohammed (commonly known as KSM), the self-proclaimed and much waterboarded mastermind of the attacks of 11 September 2001. Then they will sentence him to what he wants more than anything else in this world - death by a US army firing squad. Is there really no choice other than that between Guantanamo and the Hague for those who murder civilians on a mass scale?

David Scheffer was Bill Clinton's "ambassador for war crimes" in the 1990s, tasked with reviving the spirit of the Nuremberg trials in an effort to punish atrocities. It was an exercise that often failed - most disgracefully when the US (with the UK) blocked UN Security Council action that would have stopped the Rwandan genocide. Scheffer is prepared to accept some blame for early misjudgements, although he rightly castigates Nato leaders for their "unbearable timidity" in declining to arrest war criminals in the Balkans.

It has been Scheffer's unfortunate fate to be remembered as the man who, in 1998, cast the US vote against the ICC, in the unsavoury company of Iran, Libya, Iraq, Israel and China. He had done his best to find a way for the US to support the court and to minimise Pentagon concerns that it might put an American on trial. In the end, it was Clinton's decision: justice for all, or for all except Americans? At this point, US foreign policy became blotted by the stain on Monica Lewinsky's blue dress. Scheffer went to put his case to the president but found a different Clinton in command in the Oval Office. A "tired and drawn" Hillary decided in favour of the Pentagon.

This is an honest and scholarly book, although it is so US-centric that it fails to provide a balanced history of the global justice struggles of the 1990s. Robin Cook, for example, gets only a passing mention, although his work was crucial in changing Nato's attitude to war crimes and in overcoming the mess in Sierra Leone that US diplomacy had made by insisting on an agreement that not only pardoned the mass-murdering Foday Sankoh but made him vice-president, in charge of the diamond mines. "Guaranteed" by Charles Taylor and Jesse Jackson, President Clinton's "special" emissary, this was the most morally despicable deal since the Molotov-Ribbentrop pact and has never been explained or investigated. "It stank," writes Scheffer, who repeatedly insists that he had nothing to do with it. Who did, then?

The Republicans tried their best to undo Scheffer's work. George W Bush endorsed Jesse Helm's puerile "Bomb the Hague" bill, which permitted the president to use force to free any US soldier held in the ICC prison at Scheveningen. This period of US hostility was so counterproductive that it helped the court to be ratified in record time by 60 countries.

Scheffer began thinking about the use of international law to deter atrocities after the US bombing of Cambodia. For the realisation that this was not a mistake but a crime, we owe much to William Shawcross and his book Sideshow: Kissinger, Nixon and the Destruction of Cambodia (1979). Today, in Justice and the Enemy, Shawcross tells us that the US exer­-cises "the most benign hegemony ever created". He faults President Barack Obama for his failure to articulate more clearly the very exceptionalism to which Scheffer takes exception. But he also points out that Obama has launched ten times as many drone strikes as Bush, although his greater popularity (in Europe, at least) has helped him avoid criticism for what are really summary executions.

The book provides a spirited defence of the notion that the US is locked into a "war" with the soldiers of international terror and is entitled to kill them as "enemy combatants" wherever they can be found, or else to put them on trial before a jury of US soldiers.

It cannot be doubted that Islamist terrorists pose new challenges to law enforcement. They are not common criminals but nor are they soldiers of a state with whom we are at war and who can be lawfully executed on a virtual battlefield that includes their bedrooms.

To compare them to the soldiers of the Third Reich may give legitimacy to targeted killings but it would also lend legitimacy to the reci­procal killing of the president or of US commanders (Shawcross doesn't notice this). It is illogical to use a war paradigm in order to pretend that military commissions - soldiers sitting in judgment on enemy soldiers - can produce the kind of trial that the world now regards as fair.

It would be better to treat terrorists as uncommon criminals and to provide by a precise statute for any special treatment. What can never be abandoned is the rule that judges must be independent and impartial. The military commission at Guantanamo fails that basic test, because the judge and jurors are part of the military (its first presiding officer, one Colonel Brownback, did not even have a current certificate to practice law).

There is another way, which Shawcross fails to explore, of establishing a non-jury court of real judges, instead of a team of military officials, to give a reasoned judgment. After all, Nuremberg had distinguished judges, at least from the UK, US and France. Why is the Pentagon so afraid of proper judges? Because they might acquit or be reluctant to apply the death sentence? Yet they would deliver a reasoned judgment - just as the Nuremberg judgments have confounded Holocaust deniers, so a reasoned decision on the guilt of KSM (especially if international judges sat with US jurists) would remove any doubts.

KSM is a man with a wicked cast of mind, who has confessed to numerous atrocities (including beheading the American journalist Daniel Pearl). This makes it even more important that his trial (he wants a death sentence as soon as possible) should both prove his guilt (he may be boasting) and deny him that fast track to paradise he expects from being executed mid-jihad.

Shawcross may be right in thinking that the Guantanamo hearings will be as fair as possible but a military commission can never provide a fair trial, because it is not independent. There may not be many protesters demanding "KSM to the Hague" but it would be a better place for him, nonetheless.

Geoffrey Robertson QC is head of Doughty Street Chambers and author of "Crimes Against Humanity" (Penguin, £17.99)

This article first appeared in the 26 March 2012 issue of the New Statesman, Mission impossible

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The House by the Lake is a history of Germany told in a single house

History, which we learn about as a series of ideological abstractions, is lived concretely - in ordinary houses.

Recent years have brought a number of popular stories, told about Jews who lost their patrimony during the Nazi period: Edmund de Waal’s book The Hare With Amber Eyes, for example, which focused on a group of netsuke – small Japanese figurines – that was all that remained of his family’s once-vast art collection, and the film Woman in Gold, which tells the story of the descendants of Adele Bloch-Bauer, who successfully sued to reclaim Gustav Klimt’s portrait of her.

It is no coincidence that these stories are emerging just at the historical moment when the last survivors of the Holocaust are dying. The actual victims of the Holocaust suffered too much to be plausibly recompensed; there is no way to tell their lives ­except as stories of irrecoverable loss. It is only for the second and third generations that the restoration of lost property can seem like a form of making whole, or a viable way of reconnecting with a familial past. There is, however, always something a little uncomfortable about such stories, because they seem to suggest that regaining a painting, or a piece of real estate, does something to heal a historical rupture that in reality can never be closed.

The House by the Lake starts out seeming like another one of these stories. In 2013 Thomas Harding travelled from London to the outskirts of Berlin in order to visit a house that had been built by his paternal great-grandfather, a German-Jewish doctor named Alfred Alexander. What he finds is a shambles: “Climbing through, my way illuminated by my iPhone, I was confronted by mounds of dirty clothes and soiled cushions, walls covered in graffiti and crawling with mould, smashed appliances and fragments of furniture, rotting floorboards and empty beer bottles.” The house had been used by squatters as a drug den for years and it was now scheduled for demolition by the local authority. Here is a perfect symbol of a lost estate and the reader half expects Harding triumphantly to restore the house and reclaim it for his family.

Yet The House by the Lake has a more complex and ambiguous story to tell. For one thing, Harding makes clear that his relatives want nothing to do with the house, or with Germany in general. Harding comes from a family of German Jews who emigrated to Britain in the 1930s, starting new lives with a new name (originally they were called Hirschowitz). Understandably, they have no sentimental feelings about the country that drove them out and no interest in rekindling a connection with it. But Harding is an exception. His last book, Hanns and Rudolf, was also an excavation of the family’s past, in which he showed how his great-uncle Hanns Alexander fought in the British army during the Second World War and ended up arresting Rudolf Höss, the infamous commandant of Auschwitz.

Rather than let the house disappear, he sets about recovering its story, in an attempt to convince the German authorities to let it stand as a structure of historical value. In doing so, he broadens his subject from Jewish dispossession to the history of 20th-century Germany, as seen through the lens of a single modest building.

Alfred Alexander built the house in 1927 as a summer home for his family. He was a fashionable Berlin doctor, whose patients included Albert Einstein and Marlene Diet­rich, and he joined a number of successful professionals in building second homes in the village of Groß Glienicke, just west of the capital. The village had a long history – it was founded in the 13th century – but the exponential growth of modern Berlin had disrupted its traditions.

The land that Dr Alexander leased to build his house on was part of an estate owned by Otto von Wollank, who sounds like a stern Junker but was a Berlin real-estate developer who bought the estate (and then his title) in the early 20th century. Already Harding shows that the history of Groß Glienicke is bound up with social changes in modern Germany and in particular those in Berlin, whose population exploded in the years before the First World War. This made it more profitable for the von Wollanks to parcel off their land to city-dwellers than to farm it, as its owners had done since time immemorial.

The house that Alfred Alexander built was a modest one: a one-storey wooden structure with nine small rooms and, because it was intended to be used only in the summer, no insulation or central heating. It was a place for leading the simple life, for rowing and swimming and playing tennis, and the children – including Elsie, who later became the grandmother of Thomas Harding – loved to spend time there.

Groß Glienicke was, however, no ­refuge from rising anti-Semitism: Robert von Schultz, the Alexanders’ landlord and Otto von Wollank’s son-in-law, was a leader in the Stahlhelm, the right-wing paramilitary organisation, and a vocal hater of Jews. After 1933, when Hitler seized power, things became much worse, though the Alexanders attempted to continue living a normal life. Harding quotes a diary entry that the teenage Elsie made in April that year: “Thousands of Jewish employees, doctors, lawyers have been impoverished in the space of a few hours . . . People who during the war fought and bled for their German fatherland . . . now they stand on the brink of the abyss.”

Fortunately, the abyss did not swallow up the Alexander family. By 1936, all its members had escaped to Britain. At first, they tried to keep legal possession of the Groß Glienicke house, renting it out to a tenant named Will Meisel, a successful songwriter and music publisher. (The company he founded, Edition Meisel, still flourishes today.) But Meisel, like so many ordinary Germans under Hitler, was not above profiting from the dispossession of Jews. When the Alexanders’ citizenship was revoked by the Nazi state and their house confiscated, Meisel bought it from the tax office at a bargain price, much as he had previously bought up music publishers abandoned by their Jewish owners. After the war, evidence of this profiteering delayed – but did not prevent – Meisel’s efforts to be “denazified” by the ­Allied occupying powers.

Meisel won the house by the lake thanks to one political upheaval and lost it thanks to another. The postwar partition of Berlin left Groß Glienicke just outside the city limits; as a result, Meisel’s business in West Berlin was in a different country from his lake house in East Germany. This turned him into another absentee landlord, like the Alexanders before him. Indeed, there is an odd symmetry to what happened next. Just as the Nazis had taken the house from its Jewish owners to give it to an Aryan, now the communists took the house from its capitalist owner and gave it to the workers.

Because of the housing shortage in postwar Germany, the small summer house now had to serve as the year-round residence for two Groß Glienicke families, the Fuhrmanns and the Kühnes. This required a series of alterations that destroyed much of the house’s original character – a typical eastern bloc triumph of the utilitarian over the aesthetic.

In tracing this next phase of the house, Harding shows what life in East Germany was like for some of its typical citizens. Wolfgang Kühne, a bus driver, was recruited by the Stasi (his code name was “Ignition Key”) but was soon booted out for failure to do any actual spying. His son Bernd was a promising athlete who unwittingly participated in the state’s doping programme, before an accident destroyed his sporting career. At the same time, the family benefited from the guaranteed food, jobs and housing offered by the state – perks that Wolfgang would miss after reunification brought capitalism back to Groß Glienicke.

The institution of East German life that the Kühnes could never ignore, however, was the Berlin Wall. Because Groß Glienicker Lake was legally part of West Berlin, a section of the wall ran between the house and the lake shore – a three-metre-high ­concrete monolith that was literally in the Kühnes’ backyard. They couldn’t have guests over, since they lived in a restricted border zone, which required a special pass to enter. Occasionally, Harding writes, the young Bernd and his classmates would make a game of tossing sticks over the wall, trying to set off the alarm tripwires.

This emblem of tyranny was just another fact of life for those living in its shadow. And that is, perhaps, the most important lesson of Harding’s book. History, which we learn about as a series of ideological abstractions, is lived concretely. This is why an ordinary house can serve so effectively as a symbol of the German experience.

Today, the Alexander Haus, as it is known, is a designated landmark and Harding hopes to turn it into a museum, a fitting new incarnation for our own age of memorialisation. Whether it will be the last stage in the house by the lake’s career is something only time will tell.

Adam Kirsch is a poet and critic. His latest book is “Emblems of the Passing World: Poems After Photographs by August Sander” (Other Press)

The House by the Lake: a Story of Germany by Thomas Harding is published by William Heinemann (£20, 442pp)

This article first appeared in the 08 October 2015 issue of the New Statesman, Putin vs Isis