The chances of taking Osama bin Laden alive — and to trial — were always going to be laughably low. American special forces were sent into a complex, ambiguous and dangerous situation, chasing a man with a pathological hatred of kafirs, a track record of terrorist ‘spectaculars’ and with a fervent desire to die waging jihad rather than of old age in an infidel prison. Somewhat like Adolf Hitler, al-Qaida’s founder was always unlikely to surrender.
But a second Nuremberg — 65 years on —would have set new standards in international law for an unquiet 21st century riven by doubt over the treatment of non-state ‘warriors’ fighting without end on a borderless battlefield . Bin Laden’s execution — swift and described as justified self-defence in a hostile situation — smacks of frontier justice. It does nothing to advance respect for international law. It merely perpetuates the cycle of violence in pursuit of political ideals — a strategy bin Laden himself championed. As Angela le Blanc, a member of the September 11th Families for Peaceful Tomorrows group, commented with evident sorrow after hearing that bin Laden had been shot dead by the Americans: “There are not many things I know to be absolutely true, but one of them is that violence begets violence… I and my fellow members …believe justice is achieved in the courtroom, not on the battlefield. I do not seek revenge, but rather justice— and these are two very different things.”
It was a similar yearning —for justice, the triumph of manifest right not might, the end of senseless bloodshed — that led to the sober, year-long , reckoning-up in Nuremberg. It was flawed. The US chief prosecutor, Supreme Court Justice Robert Jackson, freely admitted as much. Critics of the Nuremberg trials notably included US Supreme Court Chief Justice Harlan Fiske Stone, who caustically called the proceedings in faraway Bavaria a “high-grade lynching party” before he died at their half-way point in April 1946. But Nuremberg lanced a deep boil even if it did not drain it.
It is worth remembering that at the time, Britain’s Winston Churchill argued for the summary execution of the Nazi leadership and it was US President Truman who quoted Justice Jackson to say this “would not sit easily on the American conscience or be remembered by our children with pride” . Truman insisted that the victorious Allied forces “determine the innocence or guilt of the accused after a hearing as dispassionate as the times will permit and upon a record that will leave our reasons and motives clear” .
The consequences went beyond justice for the six million who died at the hands of a vicious state apparatus and their bereaved families. Nuremberg went beyond catharsis. It led to moves to establish a permanent international criminal court, which came into being eight years ago. It led the way to the 1948 Genocide Convention and the Universal Declaration of Human Rights. And David Maxwell Fyfe, the British deputy chief prosecutor at Nuremberg, went on to draft the European Convention on Human Rights.
So much quantifiable good came out of immeasurable suffering . In letters to his wife made public only in March 2009, Fyfe described the grim experience in bombed-out Nuremberg: “It is worth a year of our lives to help to register forever and with practical result the reasoned horror of humanity (at the Nazis’ misdeeds)”.
One “practical result” might be still to come. Nuremberg could be a style, if not a template, for establishing a proper trials process for crimes of hate. Leading British lawyer and author of “Crimes Against Humanity” Geoffrey Robertson has pointed out that bin Laden could not have been tried at the International Criminal Court (ICC) because its jurisdiction only came into existence nine months after the 9/11 attacks. In any case, the US has refused to sign up to the ICC. But for al-Qaida , an ad hoc tribunal could be set up by the United Nations Security Council , with international judges that include, say, Muslim jurists. Such a tribunal might be expected to extend fairness— and just punishment — to the vanquished .
Setting up a trials process for all crimes of hate — beyond al-Qaida , across borders, race, religion , sexual orientation and gender —would be a mammoth task. But Nuremberg is proof of the paradox — the unprecedented has precedent. In his opening statements back in November 1945, Justice Jackson explained the logistical difficulty of bringing “within the scope of a single litigation the developments of a decade, covering a whole continent , and involving a score of nations , countless individuals, and innumerable events.” The trials were a response to the world’s demand for “immediate action,” he observed.
Without a trials process, the clamour for immediate action would probably have meant an eye for an eye. But as Gandhiji sensibly warned, that would make the whole world blind. We are not sightless yet. Other al-Qaida leaders— Ayman al-Zawahiri and further down the food chain —are ‘high-value targets’ on the American watchlist. One day soon, they may be found. If the focus were on capture , arrest, arraigning for trial and judging on evidence, real justice will be done and crucially — for al-Qaida’s constituency —seen to be done.