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Ends & Means in War Crimes Trials; Europe's Use of 'Soft' Power Offers Stark Contrast to 'Hard' U.S. Tactics—A Commentary by Aziz Huq, Garth Schofield

The following commentary was published in The Washington Independent on August 6, 2008.

Ends & Means in War Crimes Trials; Europe's Use of 'Soft' Power Offers Stark Contrast to 'Hard' U.S. Tactics
By Aziz Huq, Garth Schofield

In the hazy early hours of July 30, a special U.N. flight touched down at Rotterdam airport, bringing the former leader of Bosnia’s wartime Serb government, Radovan Karadžic, to stand trial before the International Criminal Tribunal for the Former Yugoslavia, or ICTY, in The Hague. At the same time, proceedings in the trial of Osama bin Laden’s alleged driver, Salim Hamdan, which concluded today in a conviction on five of 10 charges, were reaching a crucial stage.

International reactions to the two war crimes trials, however, and their likely effects on future events, could not be further apart. The Karadžic trial signals the start of closure for the quasi-genocidal Balkans conflicts, which ended with the Dayton Accords in 1995; by contrast, the Hamdan trial offers no sense of closure and little succor to U.S. counterterrorism efforts. To the contrary, it will provide more grist to international claims about American hypocrisy and lack of moral authority. His conviction will do nothing to stem those criticisms, or the debate about the commissions' ethics and legality.

Karadžic’s recent arrest in Belgrade and his trial are the result of subtle European use of soft power: the European Union’s clever use of sanctions and incentives tied to EU membership to support Boris Tadic’s pro-European party and marginalize extreme nationalists led by Vojislav Kostunica. Without this careful diplomacy, the conditions for Karadžic’s arrest would never have arisen.

Certainly, Karadžic’s trial before the ICTY presents many challenges. Serbs have accused the ICTY of bias in its prosecutions, and that country's ultra-nationalists have scored points by casting scorn on the court.

More seriously, Karadžic has signaled that he may represent himself -- as Slobodan Miloševic did. Miloševic filibustered and grandstanded throughout the proceedings, drawing them out until his sudden death. As a result, the ICTY’s reputation suffered, and the trial never successfully addressed the gravity of Miloševic’s alleged crimes.

It is to be hoped the ICTY prosecutors learned their lesson, and now focus the Karadžic trial in ways that prevent a repeat of Miloševic’s performance. One way of doing this would be to concentrate on the most serious crimes -- for example, the massacre of up to 8,000 unarmed civilians, mostly Muslims, at Srebrenica. To provide justice for the dead of Srebrenic -- a list of whose names provides sobering reading -- and to ensure that the proponents of violence in the Balkans are discredited, nothing else will do.

Proceedings against Hamdan, however, are unlikely to have the same salutary effect in the conflict with Al Qaeda. The proceedings can largely be viewed as grist for the propaganda mills of America's opponents. Commonly identified as bin Laden’s driver, Hamdan was captured during fighting in Afghanistan while transporting two surface-to-air missiles. He was charged with conspiracy to commit attacks against the United States and providing material support to a terrorist organization; he was convicted only on the material support charges. He has been held since 2002 at Guantanamo. After his lawyers successfully challenged President George W. Bush’s military commissions, established unilaterally by executive order on Nov. 13, 2001, he was one of the first to be indicted under the new statutory commissions scheme created by the 2006 Military Commissions Act.

Hamdan’s trial and conviction by a second-tier military justice system will probably never be regarded as fair or legitimate. The commission enables the military trial of offenses -- including conspiracy and material support -- that have never before been recognized as war crimes amenable to military jurisdiction. Hamdan is likely the first person ever to be convicted of material support as a war crime -- which did not even exist as an idea at the time of his capture.

Worse, the commission's rules allowed the introduction of evidence gained by coercion, as long as the judge decides it has “sufficient” probative value. (In Hamdan's case, evidence from his interrogations at Guantanamo was permitted; evidence from his interrogation in Afghanistan was kept out). The commissions, in other words, allow the administration to rid itself of the problem of tortured Guantanamo detainees by using the latter’s confessions to convict them.
 
Indeed, the very day that Karadžic was being flown to the Hague, Hamdan introduced evidence that he had been subjected to illegally coercive tactics at Guantanamo.

It is the height of ironies that the trial of an Al Qaeda suspect should furnish the terrorist group with evidence of arguments it uses to gain support for its violent activities -- that the United States tortures in violation of its own laws and its own ideals.

“The eyes of the world are on Guantanamo Bay,” wrote Judge James Robertson of the D.C. district court in June, as he allowed the Hamdan commission to move forward. What the world sees is American “hard power” -- military force in naked form -- being exercised. Advocates of the military commissions are already pointing to the split verdict for Hamdan as evidence of the system's intrinsic fairness. But no inference can be drawn from the partial acquittal since none of the charges are properly war crimes, and since Hamdan was certainly convicted on the basis of evidence gained by illegal coercion.

In the Hague, by contrast, an equally attentive world sees a threshold victory for European soft power that ensures an end to violence, not its encouragement. Despite the Bush administration’s contempt for “Old Europe,” it seems that the continent has some lessons for the New World after all.

It is not too late for a new administration to do better. To do so, it could go back to the wisdom of Justice Robert Jackson, the Supreme Court justice who was the chief U.S. prosecutor at the Nuremberg trials of Nazi war criminals. “Any result that the calm and critical judgment of posterity would pronounce unjust,” observed Jackson, “would not be a victory for any of the countries associated in this prosecution.”

The same remains sadly true today.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced: Presidential Power in a Time of Terror." Garth Schofield is a Yale Law School student working this summer at the Brennan Center for Justice.