Judgment at The Hague: Try the Terrorists for War Crimes

On Sunday November 30, 2008, ten members of a militant Islamist group from Pakistan attacked several sites in Mumbai, India, killing at least 120 and wounding scores of others. The dead included 65 Canadians at the Taj Mahal Hotel, though the militants also attacked the Jewish Community Centre and also killed Americans, Australians and Indians. The Islamist group, Lashkar-e-Tabai, has been linked with Al-Qaida and the Taliban in Afghanistan. Of the ten suspected terrorists, only Ajmal Amir Kassab has been apprehended, after a standoff of more than 60 hours with police. He now faces charges of terrorist acts, though formal charges have yet to be laid against him.

The fact that the outgoing Bush administration in the US has seen it more fit to hold suspected Iraqi and Afghan insurgents at Guantanamo incommunicado shows that the US doesn't know what to do with suspected terrorists. They are hardly common criminals, since strapping a bomb to yourself and driving into a crowd of people is hardly a common criminal act. Yet the Pentagon is naturally reluctant to dignify them by classifying them as prisoners of war. There also is the question of which department of the US government really holds jurisdiction: the Justice Department (since terrorist acts are clearly criminal acts), or the Defence Department, since terrorist acts are strategically plotted out and then tactically executed in a manner that can only be considered military. Therefore, the third option that the US has so far carried out: holding alleged insurgents incommunicado at Guantanamo while denying them both the right to counsel and a fair trial, and many of the protections accorded legitimate prisoners of war under the Geneva Convention.

Alleged insurgents are neither soldiers who suffered the misfortune of being captured in war, nor are they dissenters in the legitimate sense. To treat suspected insurgents like the ones at Guantanamo as prisoners of wars is to accord them a dignity under the Geneva Convention that only real prisoners of war deserve. That's to say, they shouldn't be treated like soldiers when they are merely armed thugs and criminals. On the other hand, to hold them incommunicado and try to "break them," either through torture or psychological means is wrong in the eyes of most people. It seems like something out of Kafka to most people to hold suspects for an indefinite period on charges of something that can be vague like terrorism, and the suspects don't know the rules of the game, and the captors make them up as they go along. Besides, one might argue that convicted mass murderers like Charles Manson are worse than your average terrorist, yet the rights of mass murderers like Manson are usually respected in the United States.

The war between the democracies of the world and insurgent groups like Al-Qaida is, in large part, a war of symbols and ideas. I fear that the West is losing the war of ideas, and I found it frustrating that the Bush administration in general, and his ousted Defence Secretary, Donald Rumsfeld, in particular, have had little or no understanding of the value of propaganda in this struggle.

There exists a perverse symbiosis between Al-Qaida and the Arab cable television news network, Al-Jezeera— one where Al-Qaida received a mouthpiece for its rhetoric of hate against the West, while Al-Jezeera received breaking news stories. However, the Bush administration has cultivated a hostile relationship with the press, choosing secrecy over openness. Whenever a stray bomb falls on an orphanage or hospital in Afghanistan, it ends up on Al-Jezeera the moment it happens, but when an insurgent drives a truck into a convoy of troops, it only receives scant coverage in the press, and no photos are allowed.

What is the Bush administration afraid of? You know very well what the Bush administration is afraid of. If the American people were bombarded with nightly images of death and destruction on television, like they were during the Vietnam War, support for the wars in Afghanistan and Iraq would evaporate completely. Already, less than 50 per cent of the American people support the wars in Afghanistan and Iraq. George W. Bush will leave office with an approval rating around 20 per cent, once Barrack Obama is inaugurated January 20, 2009. One doesn't have to be a Wall Street analyst to predict, with some accuracy, that the nose-diving stock market will probably rally on the day that Bush leaves office. That's why the Pentagon tries to acknowledge the fighting as little as possible, and President Bush (sic) tells people of their patriotic duty to go shopping.

However, I would not be overstating the matter to say that terrorism is an unprecedented threat to civilization itself. We are like ancient Rome, trying to fight off the Vandals and the Visigoths, only the barbarians have already entered the city before the gates were closed, and they strike only when people least suspects it. You can make everybody take off their shoes before boarding an airplane, remove all waste baskets from the washrooms, or go over each baby carriage with metal detectors or K9 dogs, but there's always the danger that authorities will miss one carefully concealed bomb in a package somewhere. And you can bet that the terrorists themselves will call the FBI beforehand to confuse them with tips on their activities to throw them off: I'm sure that members of Al-Qaida warned the FBI that they were going to bomb the World Trade Center and the Pentagon several times— along with dozens of other places that they never had any intention of hitting.

Democracy, along with any other form of government, requires a bond of trust between the ruler and the ruled. Terrorism threatens that bond by promoting chaos and anarchy in order to make any kind of government impossible.

There is a fourth option to prisoner-of-war camps, detentions without trial, and treating people who aren't common criminals like common criminals: war crimes trials for suspected terrorists. Ajmal Amir Kassab should be tried for war crimes and crimes against humanity before the International Court of Justice at The Hague. Or, he could be tried at Nuremberg, like the Nazi leaders after World War II. Then, if he was convicted, they could lock him up at Spandau Prison, where they kept Rudolf Hess.

The reason for suggesting war crimes trials is very simple: kidnapping individuals and holding them for ransom, or murdering soldiers and civilians while held in captivity are war crimes and crimes against humanity under the Geneva Convention. The attack of foreign tourists at the Taj Mahal simply because they were there at the time was mass murder, another war crime under the Geneva Convention. Likewise, murdering civilians in attacks, like the one on the Jewish Community Centre in Mumbai, because of their race or religion is genocide under the Geneva Convention. It is also a war crime to force captured soldiers to plea for their release on video, or make propaganda broadcasts against their countries under the threat of death or torture— something that terrorist groups do routinely.

Most people in the United States and its allies believe that Osama Bin Ladine and his cronies are no better than Hitler or Stalin. To label somebody with little sense of self a terrorist may give that person a mystique or an aura of power that he or she may believe they didn't have before. While Bin Ladine is definitely an "outlaw," even in the Arab world, being branded an outlaw only helped to make the James Brothers legendary in the American Wild West; this label hasn't hurt Bin Ladine's image, either. But who wants to be charged as a war criminal? Osama Bin Ladine doesn't want to face judgment at Nuremberg any more than the Nazis did after World War II. It's the one thing that both the leaders of the countries in NATO and the Terror Sheiks have in common; the label of "war criminal" is a stigma in both camps.

After the attacks in Mumbai, there's still the question of jurisdiction. In the case of Ajmal Amir Kassab, the defendant should be tried before an international body, because his alleged victims included citizens of several countries, not just Indian citizens. For instance, the Jews who were killed at the Jewish Community Centre were Israeli citizens under Israel's Law of Return. What's more, things will get complicated further if any of the victims had duel citizenship, say both Canadian and Indian citizenship. Rather than have several countries queue up to put Kassab on trial, let the International Court of Justice jump the queue and try him first.

The world should not miss the opportunity to try an alleged terrorist before the World Court. Whether Kassab gets the death penalty, if convicted, is beside the point. What matters is that the world send a tough message to terrorists: that terrorist attacks are wrong and will not be tolerated, and they constitute war crimes and crimes against humanity.