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Tuesday, August 05, 2008

The Fog of War-Crimes Trials

Chief Prosecutor Robert Jackson opened the proceedings at Nuremberg not with a list of Nazi atrocities but with a tribute to the war-crimes court itself: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”

The ensuing trials, though not without their flaws, largely fulfilled this lofty promise, standing as a monument to the rule of law and the very idea of conducting public trials for war criminals. As civilized people, we have a natural desire to see criminals held responsible for their actions. The desire is that much stronger in the case of large-scale crimes like genocides or terrorist attacks, which seem to demand not just accountability but a reaffirmation of the moral order — a public enumeration of what is right and what is wrong — that can be delivered only in a courtroom.

The hope once was that military tribunals at Guantánamo Bay would meet this need — if not provide closure on the Sept. 11 attacks, then at least enable a collective participation in the trials of their perpetrators. There were practical reasons to opt for tribunals over the federal courts, which were not designed to try combatants captured on the battlefield: a soldier couldn’t very well be expected to read a prisoner his rights. But there was something else, too. Trying terrorists as war criminals would send a powerful message to the world.

And yet the tribunals that just opened hardly have the feel of history in the making. They haven’t merited much discussion in the presidential campaign; nor are we a nation riveted by the trial of the first defendant, a former driver for Osama bin Laden named Salim Hamdan. Instead of a landmark case, one that serves as a resonant reminder of the gulf separating us from our enemies, we have detachment and ambiguity — not just about the extent of Hamdan’s guilt but also about the wisdom of the entire tribunal process as well as many other aspects of the prosecution of the war on terror....

The enduring legacy of Nuremberg was an international movement to outlaw crimes against humanity — a movement that has gone a long way toward keeping order in a violent world. What will the legacy of these war-crimes trials be? [Link]

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