Nuremburg and Bid Laden

by John Thompson

October 5, 2001

Is it our interests to have Osama Bin Laden taken alive? President Bush in two speeches since the attacks of September has said that the acquisition of Bin Laden either "dead or alive" is sufficient. Yet it is probably in the World’s interest that the first option is realized — hopefully as a result of the master-terrorist’s refusal to surrender when finally run to ground.

The usual Western way of looking at war is in the usual state vs state framework. Yet the killing of over 6,000 people and the direct destruction of $70 Billion (let alone the indirect costs of the attacks) clearly show that non-state actors are now capable of inflicting enormous harm.

The architecture for limiting state-on-state conflicts is well developed — particularly with the creation of the UN after the Second World War. The problem in responding to Bin Laden is that he is a non-state actor and the UN — halting and inefficient as it often is — is certainly not the appropriate forum for dealing with international terrorism on this scale. It is natural that the US has instead turned to its bilateral relations and NATO (which is focused on collective defence) for assistance in its response.

There are three considerations that make the death of Bin Laden more sensible than his capture: The precedents that were (and were not) established by Nuremburg and other War Crimes Trials; the ideological motivations of terrorists; and the nature of the ideological fonts that nourished the Taliban and the Islamicist terrorists.

The war crimes trials that followed the Second World War were — like the UN — very much in the state-to-state tradition that dominated warfare between the developed nations. In essence, the surviving leaders and senior military cadres of the states that had initiated the war were tried for it, and for the conduct of their militaries and governments during it. These trials provided a breath-taking legal precedent (even with the presence of the Soviets among the panelists) that proved that state leaders could be held responsible by other nations. In also introduced the concept of "crimes against humanity" — a construct that is being given new life with trials for sundry reprobates from the Yugoslavian wars of the 1990s.

While Bin Laden is as evil in his own small way as Hitler, he is certainly not a national leader and it would be a mistake to give him that much status. Moreover, terrorists are normally people who use violence as a short cut to gain status and self-gratification, and no terrorist has ever been tried under the laws and precedents created as a result of Nuremburg. Usually, countries have — rightly — tried terrorists under their respective criminal codes and in criminal courts. Terrorists have often claimed to be political prisoners or POWs, but have usually deserved the stigma of being tried in the same docks as rapists and murderers.

Continuing to try non-state actors in the criminal courts of those states they have harmed is the wisest course for dealing with most terrorists — but not Bin Laden and his key lieutenants.

No doubt many of the World’s sharpest legal minds (and some of its more audacious ambulance chasers) would relish the opportunity to participate in creating new international law or revel in the challenge of representing him in a court. But these too should be disappointed.

Bin Laden, like most terrorists and many war criminals, is motivated by an ideology. He is a "true believer" (as described by Eric Hoffer and Arthur Koestler) who has substituted the tenets of his ideology for self-doubt and critical judgment. No matter what evidence is brought before him, no matter what testimony comes from the victims of his attacks, and no matter how condemned he becomes, his commitment to his beliefs is unlikely to fail. True believers seldom doubt themselves (except perhaps in old age), and have a corresponding belief in the "justice" of their acts.

Huge numbers of terrorists have used their trials as bully pulpits to espouse their beliefs and display contempt for the justice system that confronts them. Canadians might remember the unrepentant nature of the majority of the Litton Bombers, Lamont and Spencer in Brazil, or sundry animal liberation front members over the years. Terrorists elsewhere have behaved the same way. Should Bin Laden come on trial, there can be no doubt he would expound upon his beliefs and provide tirades against his ‘enemies’ — especially with global interest in his trial.

The Post-War trials called Nazis and Imperial Japanese militarists to account; yet despite the total and crushing defeat of the Third Reich and Imperial Japan, many of the defendants proved to be unrepentant true believers. This proved to be no problem, as the world clearly understood that their creeds were repugnant but also had been utterly beaten. This would not be true for Bin Laden or the Taliban.

In this war against terrorism, the United States and its partners have to behave with considerable forbearance. They have to be sensitive to the restiveness throughout the Islamic world and are taking pains to limit complaints about their actions. However, in this war against terror, there is one set of targets they can’t shoot — the schools and preachers behind the "Islamicist" credo.

The surviving architects of the Nazi ideology were hauled before Nuremburg and efforts were made in the occupied Axis nations to quash the ideologies that had given birth to the war. Yet long after the Taliban’s military power is shattered and (hopefully) after Bin Laden and his compatriots are killed in some firefight with American troops, the well-springs of the Islamicist will continue to operate. The Anti-Terror coalition does not have the moral authority to destroy the people and institutions that created this movement.

In fact, by refusing to identify the Islamicist movement as a ideological threat like Fascism, the US has already reached the point where it cannot afford to put Bin Laden on trial. If it does so, the Americans will give him a pulpit from which he can assail America and its allies and lend strength and prestige to a movement that will continue to generate terrorism.

On the other hand, if Bin Laden and his associates are killed in some one-sided firefight with American/Coalition Troops, his value to the movement will abruptly end. It might also be instructive to his would-be emulators if his fame and influence comes to nothing more than implacable death for a scrabbling fugitive in some nameless ravine.

John Thompson is President of the Mackenzie Institute which studies political instability and terrorism. He can be reached at: mackenzieinstitute@bellnet.ca