War Crimes and Punishment

By Clifford D. May
Thursday, March 01, 2012

‘To the justice of the firing squad!”

That was the toast proposed by Stalin to Roosevelt and Churchill over dinner in 1943 in Tehran. They were meeting for the first time, and the discussion had turned to the fate of Nazi leaders following Germany’s defeat. Stalin wanted no fewer than 50,000 of them executed. Churchill, much as he despised Nazis, considered mass summary executions dishonorable. Roosevelt, “in an apparent attempt to lighten the conversation, suggested perhaps 49,000 would be adequate.”

William Shawcross recounts this exchange early in his new book, Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed. A distinguished journalist (a phrase I do not employ promiscuously), Shawcross brings a strong dose of common sense to the fevered debate over what constitutes due process and proper treatment for those now waging an unconventional war against the West. He also brings a unique pedigree: His father, Hartley Shawcross, was Britain’s lead prosecutor at the military tribunal that became known as the Nuremberg Trials.

In hindsight, it’s easy to imagine that Nuremberg was the inevitable culmination of World War II. But as Hartley Shawcross understood and William Shawcross makes clear, “there was absolutely no precedent.” George Orwell was among those who believed it was a bad idea. He predicted such “cruel pageantry of the law” would focus “a romantic light on the accused.”

Chief prosecutor (and U.S. Supreme Court justice) Robert Jackson saw things differently: “We must make it clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the War, but that they started it.” Nazis would be charged also with “crimes against humanity,” a completely new legal concept that “encompassed the persecution of racial and religious groups.”

What has all this to do with 9/11 and Khalid Sheikh Mohammed, one of the terrorists currently incarcerated at Guantanamo? Shawcross explains:

At Nuremberg, our civilization designed a vehicle to anathematize men imbued with evil. But evil re-invents itself in every age. In the 1940s, the world confronted and, with immense sacrifice, defeated the horror of fascism. The scale and the nature of the threats are different today but the ideology of Al Qaeda and its Islamist associates shares attributes with Nazism; it, too, is totalitarian, and it, too, has anti-Semitism at its core. In the case of Al Qaeda that intransigent hatred is extended to all “infidels.” Just as Hitler planned a “thousand year Reich,” so the Islamists call for a global caliphate in which they and their laws prevail absolutely and endlessly.

There is this difference between then and now: At Nuremberg we were dealing with an enemy that had been defeated and an ideology that had been discredited. Today, by contrast, our enemies continue to fight, and Islamic supremacism is far from vanquished. Islamists of various stripes are well funded — the West’s addiction to oil guarantees that — and prominent in international organizations. What’s more, Iran’s theocrats — for years the world’s main sponsors of terrorism — may soon possess nuclear weapons. The West’s response has been inconsistent and confused.

Among the events Shawcross explores: In 1949, three years after the judgment at Nuremberg, the Geneva Conventions were “renegotiated and redefined.” The intent was to protect not only uniformed soldiers but also civilians by making clear that honorable combatants are prohibited from disguising themselves as civilians or using civilians as shields.

In 1977, however, “acceding to pressure from the Soviet bloc and such organizations as the Palestine Liberation Organization (P.L.O.), the United Nations added two new Protocols to the Geneva Conventions,” one of which, Protocol 1, provides protections to terrorists — despite the fact that they routinely violate the most fundamental laws of war. Shawcross outlines what happened next:

The Carter administration signed the Protocol 1 treaty, but held off on ratification so it did not become part of U.S. law. Ten years later President Reagan announced that the United States would not ratify the Protocol; he declared that to give terrorists Geneva Convention protections would aid “the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices.”

Most members of the United Nations, including most of America’s European allies, did not find that logic compelling. They ratified Protocol 1. Since then, the activists, lawyers, academics, and journalists that John Fonte calls “transnational progressives” have insisted that Protocol 1 has become “customary” international law and that it is therefore binding on the United States — without Senate ratification, and whether Americans like it or not.

It is on this basis that we keep hearing in the media that America is violating the Geneva Conventions by maintaining the detention facility at Guantanamo, by not awarding prisoner-of-war status to captured unlawful combatants, and by not giving such unlawful combatants civilian trials. Yet as Shawcross shows, those detained at Guantanamo enjoy rights and protections never dreamed of by the defendants at Nuremberg.

Transnational progressives have also judged the Bush administration criminal for having used “enhanced interrogation techniques” — which they denounce as illegal “torture” — to pressure Khalid Sheikh Mohammed and a few other top al-Qaeda commanders to reveal what they knew of ongoing terrorist plots and operations. (A total of about 30 unlawful combatants were subjected to coercive tactics; exactly three were waterboarded — none at Guantanamo.) By contrast, criticism of President Obama — for ordering the killing of Osama bin Laden and using drones against terrorists in Pakistan and Yemen — has been muted.

In the 1940s, Shawcross writes, the United States and Europe had “the will and the ability to sustain their defense of freedom.” To meet the Islamist challenge of the 21st century, the Western democracies again “must be self-confident and strong enough to defend themselves against the forces of tyranny.” The evidence that America and Europe have such strength and self-confidence is not overwhelming.

Europe in particular, Shawcross fears, “risks repeating the fatal weaknesses of the 1920s and 1930s. If American power is withdrawn, the world will finally realize how much they owe to the most benign hegemony ever created.” By then, of course, it may be too late for such awareness to make a difference.