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Towards the end of his closing speech at the trial of the Nazi leadership at Nuremberg, Britain’s lead prosecutor, Hartley Shawcross, urged the court to determine “that these things shall not occur again”.
That prosecutor’s son, William Shawcross, knows better than most that despite Nuremberg’s noblest aspirations, such heartfelt hopes have been disappointed.
The Quality of Mercy: Cambodia, Holocaust and the Modern Conscience (1984) and Deliver Us From Evil (1999) are just two of Shawcross’s previous works demonstrating his trademark tough-thinking and in-depth on-the-ground research addressing this depressing fact. Since then Shawcross has additionally distinguished himself as the authorised biographer of the late Queen Mother.
But here he returns to the political fray with a vital contribution to the ongoing debate over how Western democracies should deal with terrorists.
Foremost in his consideration is the mastermind of 9/11, Khalid Sheikh Mohammed, whose trial process has proved a nightmare for the Bush and Obama administrations. Such people do not wear uniforms.
Their networks, unlike those of the men on trial at Nuremberg, are often amorphous. They have few traditional or remotely reconcilable aims. And without the obligations or methods of conventional armies the Geneva conventions are at best an incomplete guide. Our democracies are involved in a new type of conflict and though many people have said that, few have had the guts to address what it means.
The process of civilian courtroom justice (tried in New York after the 1993 World Trade Center attack) has shown itself inappropriate for dealing with large numbers of terrorists engaged in acts that are more than criminal. Shooting on sight (as Churchill had originally desired for high-level Nazis) has proved possible only in certain – and necessarily foreign – circumstances, as President Obama has demonstrated with his use of Navy Seals and unmanned drones. In opposition, Obama was critical of Bush’s solutions. In power he has not merely been forced to re-evaluate Bush, he has to a great extent superseded him.
Justice and the Enemy deftly covers familiar but also original historical, legal and political precedents for all this. It shows that the pertinent questions and answers are not only more serious than most writers on the subject have suggested but vastly more complex.
Others who have tried to address these issues have, with few exceptions, either come from that new vested-interest class of campaigning lawyers, or from their colleagues in the “human rights” industry whose views on the world rarely accord with its practicalities. Shawcross sees the importance of defending principles. But he also recognises the dangers posed by those who hungrily urge deliberately impossible standards on societies whose first principle must be survival.
Crucially, Shawcross recognises that just as not everything has a neat legal question, so not everything has a neat legal answer. He addresses Obama’s short-cutting of judicial process. And he concludes that military tribunals, such as those currently operating on Obama’s instructions at Guantanamo, are, despite their flaws, the least worst option available. Much of the book’s information on this will be fresh even to expert readers.
Shawcross writes that his book “seeks to examine how to bring justice to an enemy that, unlike at Nuremberg, has not been defeated and that demands nothing less than the destruction of the Western world”.
This subject, and book, will be controversial. But it will also be of increasing relevance in the years ahead. Shawcross’s work distinguishes itself not just by taking on a subject most other writers have shied away from but by reaching answers. It should be read by policy-makers and public alike.