Fair Standards to Prosecute Terrorism: Benjamin Ferencz in response to Amnesty International
You ask: "Is it necessary to sacrifice fair trial standards to prosecute terrorism?" In principle, every human being is always entitled to fair and humane treatment. Even the Nuremberg defendants, accused of murdering millions of innocent people were given a fair trial. (See Nurnberg Trial Procedure and the Rights of the Accused.) "Terrorists" consider themselves at war, just as the US considers itself at war against terrorism. Crimes are committed by individuals who are unwilling to accept the existing laws they consider unjust. Those who are willing to die and kill for their own particular cause consider themselves martyrs rather than villains. "One man's terrorism is another's heroism." Decision makers must find the balance between protecting the rights of the accused criminal against the rights of victims to be protected. That is often very difficult.
One cannot try an idea, nor can it be killed by a gun. An idea must be replaced by a better idea. We must stop glorifying killing "the enemy" and replace the existing war-ethic with a new "peace-ethic."All must learn that law is better than war. The International Military Tribunal at Nuremberg held that aggressive war is the "supreme international crime." That was affirmed by the United Nations and upheld in many legal decisions. Nazi leaders argued that they acted only in self-defense against a presumed attack by the Soviet Union. Their justification for mass murder was rejected and responsible leaders were hanged after a fair trial. Who is to try those who continue to use such invalid and deceptive justifications for sending young persons and countless civilians to their death?
As a former combat soldier in World War Two, and a war crimes investigator, I am firmly convinced that there has never been, and can never be, a war without atrocities. Illegal war- making is the biggest atrocity of all. Responsibility starts at the top. It will be impossible to explain to a lowly enlisted person that it is hailed as a great achievement to incinerate a city with nuclear weapons and destroy future generations yet unborn, but a prisoner, who was trying to kill you, must not be humiliated. My Supreme Commander in war, General Dwight Eisenhower, as President of the United States declared: "The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law" (May 19, 1958).
We need not only more tolerance and understanding for justified grievances but we need new institutions to strengthen the rule of law. US opposition to the new International Criminal Court in the Hague is misguided and does not serve our national interests. Our insistence that US nationals are not bound by laws that others are required to accept repudiates what we stood for at Nuremberg. It brings us into disrepute as a hypocritical bully. Fair trial requires that everyone be bound equally by the same laws. As US General Telford Taylor, my Chief at Nuremberg and later law partner and Columbia University Professor put it: "Law is not a one way street." Fairness is determined not only by how an interrogation or trial is conducted but also by who sits in the dock.