How we serve justice


By Rashmee Roshan Lall

Retribution is no substitute for real justice. But President Obama’s promise of more Abbottabadstyle raids, if needed, on high-profile terrorists in Pakistan suggests a dangerous equivalence between commandos and the courts. Extra-judicial killings of the Osama bin Laden variety signify victors’ justice and the shallow adrenaline rush that comes with this. It is doubtful if summary executions can neutralise the al-Qaida franchise and its ideology, which lives – and fattens in leech-like fashion – by feeding on violence and death.

The Allied Forces realised the need for clear-eyed justice after the horrors of World War II. But how was justice ever to be done, in the face of criminal behaviour on an almost unimaginable scale – millions of murders, wrongful imprisonments, tortures, rape, theft, and destruction? The US dissuaded the British from execution within six hours of capturing and identifying the Nazi leadership. It insisted that a transparent and documented trial was crucial.

America turned out to be right. A murderous ideology of exclusivist hatred needed to be demystified before it could be countered. Nothing could be as effective as a proper trial. A set of internationally recognised offences was agreed as the basis for trial. The International Military Tribunal was set up with judges from the US, Great Britain, France and the Soviet Union. The US chief prosecutor Robert Jackson crucially insisted the trials prove “incredible events with credible evidence” rather than bleeding heart stories. So, 3, 000 tonnes of documents, photographs, film footage and artefacts were presented as evidence at the first Nuremberg trial, which put 20 of the late Adolf Hitler’s best and brightest in the dock.

Fifteen years after Nuremberg, the Israeli intelligence agency, Mossad, captured Adolf Eichmann in Argentina and the chief Nazi logistician was put on trial in Jerusalem. The man who efficiently managed the task of the mass deportation of Jews to the gas chambers was tried in a slightly different fashion from Nuremberg. Survivors of genocide testified, giving a face to the stark statistics. It was the 1960s and the television age had just begun, so the Eichmann trial was broadcast internationally. It would be a significant court case because it revealed, as political theorist and journalist Hannah Arendt later wrote, the sheer “banality of evil”. She said Eichmann appeared chiefly driven by the need to succeed professionally. Observers later agreed the Eichmann trial demystified evil because it bared a startling truth – that even the most ordinary of people can commit horrendous crimes if placed in certain situations and given certain incentives.

What does any of this have to do with the battle against al-Qaida, a non-state actor that is more an idea than an organisation and is as shadowy as it is spread out? Al-Qaida recruits by exploiting the ummah’s sense of victimhood. The Muslim world has long chafed at perceived injustice perpetrated by the West;it resents the West’s hypocrisy in substituting power for principle to suit itself. Extra-judicial killings fall in the category of Guantanamo Bay, the notorious Camp X-Ray in Afghanistan, and Enhanced Interrogation Techniques. A second Nuremberg-style trial – of bin Laden in the first instance, but now that he is dead, of his henchmen, aides, foot soldiers, helpers, ideologues, recruiters – would promote the idea that the West respects international law rather than frontier justice. A trial by a tribunal possibly set up by the United Nations, with pious and practising Muslims among the judges, would probably do more to prove Justice Jackson’s famous “incredible events with credible evidence”. In our high-tech internet age, the evidence could include emails, flashdrives, CDs and encrypted computer files.

Easier said than done. The difficulties would be enormous. Some of the world’s best human rights lawyers argue for a second Nuremberg for al-Qaida operatives even as they admit that it might end up “a squalid circus” like the trial of Saddam Hussein. Then there is the worry that a trial could turn into a cross-examination of American foreign policy rather than the defendants’ alleged crimes. Even so, had Osama bin Laden gone on trial, it would have demystified the al-Qaida more than anything else, says lawyer Geoffrey Robertson. “This would have been the best way of demystifying this man, debunking his cause and de-brainwashing his followers. In the dock, he would have been reduced in stature – never more remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man, screaming from the dock or lying from the witness box. Since his videos exalt the killing of innocent civilians, any cross-examination would have emphasised his inhumanity, ” Robertson wrote after bin Laden was shot dead.

The most potent weapon in the fight against the al-Qaida is demystification by a transparent process of reckoning up. This would include any and every aspect of running a multinational organisation – recruitment, financing, logistical support such as transport, technological help, engineering, book-keeping and so on. At Nuremberg, 12 trials followed those of the major war criminals (such as former Gestapo head Hermann Goring and Nazi Party secretary Martin Bormann). The 12 trials included that of the Nazi state’s doctors, who performed gross experiments on prisoners and ran the euthanasia programme. Another tried the jurists and lawyers who worked for the government and implemented and furthered the “racial purity” programme through eugenics and racial laws. At a third trial, captains of industry were charged with profiting by using conscripted foreigners and prisoners of war to work in factories.

Nuremberg made it impossible to be a Nazi any longer, whatever your walk of life. Frontier justice enables the al-Qaida to find ever more willing ears to dribble in the poison of hate.

Rashmee Roshan LallWorld Report