Commentary

Don’t Court Bin Laden

By Gary Dempsey
October 2, 2001
In the wake of the terrorist attacks on New York and Washington, some experts have argued that placing Osama bin Laden and his lieutenants on trial à la Nuremberg, rather than waging a war against them, should be the Bush administration’s primary objective. But such a plan is wrongheaded.

One advocate of the tribunal approach is international human rights lawyer Geoffrey Robertson. He says that bin Laden’s terrorism “should be treated as an international crime,” and he should be tried for his actions in an international court akin to the Nuremberg tribunal set up to try Nazis for their role in World War II. The American objective should be “to put bin Laden in the dock,” claims Robertson. The history of Nuremberg, justice, and the future of the civilized world demand “that we deal with these prime suspects in a civilized and fair way.”

Yet the Nuremberg analogy does not withstand close scrutiny. Indeed, consider how the Nuremberg tribunal actually came into existence: It followed the unconditional surrender of the defeated Axis powers. Prospective defendants were already in custody. And extensive documentary evidence was readily available because the Nazi archives were captured as a result of the war effort. Simply reciting that history shows how different the Nuremberg tribunal was from the current bin Laden situation.

Moreover, the Nuremberg tribunal took place in the middle of Germany and its greatest success was in exposing to the German people themselves the crimes committed in their name. How a Nuremberg-style tribunal could be held in the middle of Afghanistan without first defeating the regime there is left unanswered by proponents of the tribunal approach.

Another difference: Because the war in Europe was over, the need to scrupulously safeguard intelligence sources and methods did not apply to the work of the Nuremberg tribunal. The same cannot be said in the case of bin Laden and his al Qaeda terror network. Indeed, it would prove disastrous if a trial revealed sensitive information — such as the identity of informants or how the United States conducts surveillance and investigations — before defeating bin Laden and his organization. America’s informants would be executed by bin Laden’s associates, new informants would be dissuaded from coming forward, and America’s surveillance and investigative methods would be compromised.

Nevertheless, many supporters of a Nuremberg-style tribunal claim their approach will have a deterrent effect on future terrorists. But the fact is terrorists don’t reduce their resolve in the face of the legal process. Four men involved in the 1998 U.S. embassy bombings in east Africa and 12 men involved in the failed 1993 World Trade Center bombing were convicted. Still, the World Trade Center has been reduced to rubble. If anything, holding trials encourages would-be terrorists; that is, making the consequences of waging war against the United States less costly makes it more likely.

The primary objective of the Bush administration should not be bin Laden’s trial before an international tribunal, but the crushing defeat of him and his organization. The administration would have great leeway in that regard should it request and receive a congressional declaration of war against bin Laden and his terror network. According to long-established rules of war, enemies who do not wear uniforms, hide their weapons from view, and act as saboteurs are considered “illegal combatants.” Illegal combatants are not entitled to prisoner of war status under the Geneva Conventions, are not protected by the law of war, and are subject to summary execution upon detection. When captured, such infiltrators are not entitled to be tried before civilian courts, court-martial panels, or international tribunals based on the Nuremberg model, but must instead face specially organized military commissions.

Making the international trial of bin Laden the main objective of American policy is misguided. Defeating him and his network should be the first objective. Trying him if he survives that defeat should only be an afterthought.