By Guénaël Mettraux
Published: August 19, 2009
Published: August 19, 2009
AT the end of World War II, the Allied powers found themselves in charge of thousands of captured enemies, many of whom had committed unspeakable crimes. Some among the victors thought that the prisoners should simply be shot. Others, including many in the American government, steadfastly insisted that these men should be subjected to criminal proceedings. Thus the Nuremberg trials were born, tribunals that meted out justice for some of the 20th century’s worst atrocities while demonstrating the return of the rule of law on the European continent and the superiority of democratic values over Fascist lunacies.
The Guantánamo detainees pose a similar conundrum today. Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.
America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.
We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.
Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.
The support of the international community — particularly from Middle Eastern countries and those European nations that played a part in the detention or transfer of these men — would be imperative to providing legitimacy to the process and the guarantees of independence and impartiality necessary to its success. Moreover, any convictions would need to bear the stigma of the entire world, not just that of a single nation.
An international criminal tribunal would not answer all the legal questions surrounding the war on terrorism. But by putting its faith in the law, the Obama administration would send a potent message to both its supporters and its enemies. By giving a fair trial to the Guantánamo detainees, the United States would reassert its core values and demonstrate the supremacy of those values over the evil that has been challenging them.
The chief prosecutor at Nuremberg, Robert H. Jackson, said: “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.” Let us hope that the wisdom of his prophecy has not been lost to those who will decide the fate of the Guantánamo detainees.
Guénaël Mettraux, the author of 밫he Law of Command Responsibility,?represents defendants before international criminal tribunals.
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Guénaël Mettraux will lecture on "International Criminal Justice: A Defense Perspective" on Monday, August 24 at noon in the Zorensky Classroom (No. 306). He has served as Defense Counsel, International Criminal Tribunal for the Former Yugoslavia and Consultant for the Defense, the Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. Mettraux is a renowned practitioner, scholar, and teacher of international criminal law. He has appeared before or served as a consultant for all of the major international criminal tribunals in The Hague, and has lectured on international criminal law at top law schools in The Netherlands, Switzerland, Italy, the United States, and Bosnia & Herzegovina. The American Society of International Law honored his most recent book, The Law of Command Responsibility (Oxford 2009), with the prestigious Francis Lieber Prize.
