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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