War Crimes Without War?

‘However successful the US is in capturing terrorists, the war on terror can never be over; fighting terrorism cannot be a “war”’

Finding yourself in the shadow of a successful parent must be a mixed blessing. At school, I found it extraordinary that the boy sitting next to me was the son of a man who’d been to the same school a generation earlier: my own father, a refugee who settled in London after the war, had been educated only to elementary level.

While my father was struggling to learn English, William Shawcross’s father was using his command of the language to bring to justice some of the Nazis who were ultimately responsible for murdering most of my father’s family. The 43-year-old Hartley Shawcross, newly elected to parliament, had become Attlee’s Attorney General in 1945. As a result, he was chief British prosecutor at the war crimes tribunal that the Allies established in Nuremberg. 

Although young William used to listen to gramophone recordings of his father’s speeches to the Nuremberg tribunal, he did not follow his father into the law or politics, becoming instead a journalist and author. But in his latest book, Justice and the Enemy (Public Affairs, £17.99), Shawcross explores the issue that confronted his father and others in government: when you win a war, what should you do with those who led the fight against you? Prosecute them? Shoot them?

At least the Allies knew when the war was won. What about the “war on terror”? I remember discussing the term with a senior State Department lawyer while George W. Bush was US president. 

The very nature of a war, I argued, is that it eventually comes to an end. We permit belligerent states to detain prisoners of war because we know they will be released once the war is over. But, however successful the US is in capturing individual terrorists, the war on terror will never be over: there will always be Islamists and others who want to kill innocent people in the hope of achieving their aims. So fighting terrorism cannot be a “war”.

The lawyer looked bemused by my analysis. He still seemed mystified when we next met, some 18 months into the Obama administration. Now back in private practice, he observed that the president hadn’t closed Guantánamo Bay or abolished military trials for suspected terrorists. I have to say I was rather less surprised myself that these promises had not been kept. But at least the Obama administration had stopped referring to the “war on terror”. As Shawcross observes sardonically, “‘terrorist attacks’ became ‘man-made disasters’; wars were transformed into ‘overseas contingency operations’.”

Not that this made it any easier for the US to decide between the various ways of dealing with terrorists. Last September, for example, a CIA-controlled drone above Yemen killed Anwar al-Awlaki, a US citizen who was then al-Qaeda’s most effective propagandist. Another American jihadist, Samir Khan, was killed in the same attack.

Was this any less lawful than the attack by US Special Forces last May on a compound in Pakistan during which they shot dead Osama bin Laden? In theory, he could have surrendered, not a privilege available to someone targeted by a Hellfire missile.

Realistically, there is little chance of surrender to US Special Forces who know that they have, according to Shawcross, just one-tenth of a second to pre-empt a suicide bomber. The US argues that any terrorist could hand himself in at any time.

According to the State Department’s legal adviser, Harold Koh, it was certainly legal to kill the al-Qaeda leader. Bin Laden was the leader of an enemy force which posed an imminent threat to the US. And the same went for al-Awlaki. The jihadist must have known that the US regarded him as covered by the president’s authorisation for the military use of force, which a joint resolution of Congress approved immediately after the attacks of September 11, 2001.

Of course, there is another way of dealing with alleged terrorists and the Americans are struggling with that too. In 2009, the US Attorney General Eric Holder announced that Khalid Sheikh Mohammed, who had been captured in 2003, would be flown from Guantánamo Bay to be tried at the federal courthouse in New York, just a few blocks away from where the Twin Towers had stood. Some 18 months later, though, Obama announced that the alleged architect of the 9/11 attacks would be tried in a military court after all.

Which brings us back to Nuremberg, where it proved possible to complete the main trials little more than a year after the war’s end. War or no war, I regard it as legitimate for a state to kill those who would otherwise kill its citizens if those killers cannot be safely captured. Better still, states should arrest and try them. And I’m less worried by whether it’s a military or civilian court, so long as they get on with it.

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