A nation above the law

Observations on Guantanamo Bay

Compare and contrast two courts. First, the military tribunal being set up in Guantanamo Bay, Cuba: no advance disclosure of evidence, no in- dependent judge or jury, no independent legal representation, no private consultations with defence lawyers, no guarantee of public hearings, and the risk of the death penalty to those who turn down the offer of a plea bargain.

Second, the International Criminal Court. Founded by the UN after long negotiations, it was set up in the Netherlands to try those accused of genocide and crimes against humanity. Many nations have sent senior and learned judges to hammer out its procedures. Its prosecutor investigated the generals who formed the Argentinian junta. Independent defence lawyers will be provided. There is no suggestion that the proceedings will be anything other than public, and the judges will have a variety of safeguards to weed out mischievous attempts to embarrass states whose citizens have not committed major, dreadful crimes.

By any standards, this is higher-quality justice than any on offer in Guantanamo Bay. Yet the Bush administration has put huge pressure on other nations to sign up to bilateral agreements to avoid US citizens ever facing it. Countries that resist have been threatened in public with the loss of all US aid, and with God knows what else in private. The UN has had to agree that no US citizen engaged in UN peacekeeping operations should be liable to trial, and Congress has authorised the president to use the might of the US military machine to rescue any citizen who falls into the hands of the evil Dutch.

The British government has come as close as it dares in public to saying the Guantanamo Bay scheme is a mockery of justice, and Chris Mullin, an MP with a fine record of fighting bad justice, must be rueing the twist of fate whereby he got a job at the Foreign Office just in time to have to bite back his horror at what George Bush is planning. The British captives are unlikely to return here for trial because of "legal barriers"; in other words, no reputable English lawyer thinks there would be any evidence fit to place before a jury. It seems we shall have to accept that, as our contrast between the two courts suggests, the Bush regime regards US citizens as above the law and the rest of the world as beneath contempt.

Joel Bennathan is a barrister

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