Justice and Evil

By chance, I happened to read William Shawcross’s new book Justice and the Enemy: Nuremberg, 9/11 and the Trial of Khalid Sheikh Mohammed straight after finally catching up with Deborah Lipstadt’s The Eichmann Trial, which was published last year.

The congruence between these two fine books is striking. Both consider the impact and challenges of trying to administer civilian justice to people accused of crimes whose very nature and scope lie well outside the confines of normal democratic societies.  Separated by some five decades, the question of how to confront evil through justice remains problematic – but attitudes have sharply diverged.

Everything about the iconic 1961 trial in Israel of former SS Lieutenant Adolf Eichmann was controversial. In a cloak and dagger operation described by Lipstadt (who also shows how inattentive Israeli officials nearly scuppered the whole thing), Eichmann was captured in Argentina by Israeli agents and spirited away to Jerusalem where he stood trial.   

It is hard now to appreciate the sensational impact of this trial. The post-war Nuremberg Tribunal had been about the perpetrators of genocide; the Eichmann trial was about their victims. The dramatic testimony of the survivors was the first time the world – including the population of Israel itself -- was exposed at length to such personal testimony about these unspeakable events, delivered only yards away from a man who had dispatched hundreds of thousands of Jews to be murdered. The trial cemented the word Holocaust into the global imagination.

But could such a trial be fair? How could Eichmann not have been found guilty?  Was the main purpose of the trial not so much to administer justice to one individual but to etch these events into the world’s collective memory? The performance of the prosecuting lawyer Gideon Hausner was also controversial, with a theatrical style many found inappropriate.  But Lipstadt argues he had an impossible task—to ‘shine the spotlight on Eichmann while simultaneously calling to account a world that solemnly acquiesced to the horrors under way’.

William Shawcross, whose book considers the difficulties and dilemmas of bringing al Qaeda terrorists to justice, picks up where Lipstadt leaves off, even referring to the Eichmann trial in his introduction. Like Lipstadt, he explores the imperfections and ambiguities of administering justice to those accused of crimes that break the boundaries of convention. And he has more than a passing interest in this particular problem, since his father, Hartley Shawcross, was the chief British prosecutor at the Nuremberg Tribunal where leading Nazi war criminals were put on trial.

Nuremberg, whose shadow dapples this book, was itself problematic, with accusations that this was ‘victors’ justice’. Articulating the concern which resonates to this day, the Nuremberg chief prosecutor Robert Jackson emphasised that the whole point of a trial was to entertain the possibility that the accused might not be found guilty; ‘the world yields no respect to courts that are merely organised to convict’. But he also said this:

‘Civilisation can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive’.

And indeed, how they do now survive -- far from precariously but with terrifying ferocity in those who have taken up where the Nazis left off, al Qaeda and its Islamist associates who, as Shawcross notes, share with the Nazis a totalitarian mindset with Jew-hatred at its core, and waging world war to establish not a ‘thousand year Reich’ but a global Islamic caliphate.

The problem, however, is that the post-Nuremberg rules of war in the Geneva Conventions and other legal instruments were not designed to cope with the new kind of war waged by the Islamists, who are largely stateless actors who do not conform to the recognised criteria of an army and thus cannot be treated as prisoners of war. Al Qaeda terrorist suspects thus occupy an existential no-man’s land, neither ordinary criminals nor soldiers.

Shawcross charts the excruciating difficulties that beset the Bush administration as it grappled with these dilemmas, and the way it was hindered at every turn by the global army of ‘human rights ‘ lawyers and activists – not to mention political enemies of the Bush administration and of America itself.

He records how, although following early abuses Guantanamo transformed itself into arguably the best equipped prison, and the most respectful of inmates, anywhere in the world, it remained portrayed as a ‘gulag’ and a cruel and illegal hellhole. He observes that the military commissions--  proposed  by the Bush administration to resolve the justice dilemma --  afforded prospective suspects rather more rights than had been provided at Nuremberg; yet these were struck down by the US Supreme Court on the basis that they had been set up without the explicit authorisation of Congress.

 Shawcross also notes how President Obama, who came to power promising to shut Guantanamo and lambasting the military commissions that were eventually set up, had been forced to change his tune. The realities of the terrorist war against the free world are just too complex, and far too dangerous, for such ideological inanities. So Guantanamo remains open.

But Obama’s Attorney General, Eric Holder, still decided to put Khaled Sheikh Mohamed, the senior al Qaeda operative, 9/11 plotter and beheader of Daniel Pearl, on trial in a federal court in New York –raising the ghastly prospect of a jihadi circus. He happened to announce his decision, however, just days after the massacre at Fort Hood, Texas, when shouting ‘Allahu akhbar’ Major Nidal Malik Hasan went on a murderous shooting spree, killing thirteen and wounding thirty others; and a few weeks before Umar Farouk Abdulmutallab tried to blow up a plane over Denver with a bomb in his underpants.

For fifty minutes after his arrest, Abdulmutallab reportedly divulged important intelligence about his training in Yemen. Then some genius in the Obama administration decided he was an ordinary criminal suspect, and he was read his ‘Miranda’ rights and provided with a lawyer – whereupon he promptly clammed up.

There is no mistaking Shawcross’s passionate belief that, through such vacillations, the west is paralysing itself in the face of a ruthless and very focused enemy. But he also fully acknowledges the sharp dilemmas in trying to reconcile justice and security. Both he and Lipstadt, indeed, restrain their obvious emotions to write fairly and judiciously about one of the greatest questions of our times – how a society should respond to immense  evil without, on the one hand, compromising its principles or on the other committing national suicide.