Lockerbie offers a compelling model for the trial of suspects in the September 11 attacks. A trial could take the form of three independent professional US federal judges sitting in a neutral location and operating under relevant international law, delivering a reasoned written decision in lieu of a jury verdict, with sentencing options excluding the death penalty.

An Ad Hoc Tribunal

September 11 caught the international justice system in flux. The Rome Statute had attained 42 ratifications, and the creation of the International Criminal Court (ICC) was on course for 2002, scheduled for 60 days after the 60th state party had pledged support. Given this timetable, on September 11 a prosecutor was not yet in place to open the investigation into responsibility for this crime against humanity, which could have been requested by the UN Security Council under the Rome Statute. The United States, given its hostility to the ICC, could not take the imaginative leap of arranging speedy ratifications so that the ICC could be brought into force immediately, with a new and retrospective mandate to try the perpetrators of the September 11 attacks. However, Bush did have the option of requesting the UN Security Council to use its Chapter VII powers under the UN charter to establish an ad hoc tribunal, as it had in the Hague trying persons accused of genocide in the former Yugoslavia under the International Criminal Tribunal for the Former Yugoslavia (ICTY). The UN Security Council would readily have acceded to such a request, given its unanimous support for the United States after the atrocity, which it characterized in two September resolutions as a threat to international peace (the precondition for the exercise of Chapter VII powers). There would have been no difficulty in finding a high-profile US prosecutor, and judges, including Muslim jurists, could have been appointed from coalition countries.

The ICTY’s rules of evidence and procedure afford basic rights to defendants while permitting the inclusion of all relevant and reliable evidence. It even sets protocols for evaluating the kind of hearsay evidence which may be necessary to prove terrorist conspiracies and for protecting from public disclosure on national security grounds the identity of informers or evidence from electronic intercepts and other means of secret intelligence-gathering. A trial of bin Laden and other Al Qaeda leaders together with Mullah Omar and his top ministers and generals would be most appropriately held in the Hague, away from local pressures and prejudices in the United States or Afghanistan, and less obviously a target for terrorist reprisals, although doubtless an isolated island like the Falklands or, with historical redolence, St. Helena, might be used if such reprisals were likely.

Apologists for US constitutional law and the Bush administration’s hostility to this course argue that the Pentagon has accepted restraints on bombing targets advised by its own lawyers and would be inhibited and embarrassed if “second guessed” by an international tribunal: “The US government won’t support a new tribunal that has authority over US forces.” However, the objection is irrelevant because there would be no need to give a new tribunal any such authority. Its mandate would be to prosecute, judge and, punish those who bear criminal responsibility under international law for the crime against humanity committed on September 11. It would not have any broader jurisdiction over the entirely separate issue of war crimes committed during the fighting in Afghanistan.

In the case of US soldiers, any allegations would be investigated and tried by US court martials. Although the ICTY was accorded jurisdiction over all such crimes in the former Yugoslavia (at a time when no one believed NATO would fight a war there), the United States was irritated that the Tribunal’s chief prosecutor, Carla del Ponte, even looked at evidence alleging that it had breached the laws of war (she found no case to answer). This is an issue, however, that a tribunal trying Al Qaeda and Taliban leaders would never need to address.

Although an international court was first proposed by the League of Nations in 1937 to deal with terrorist crimes, and although the idea was revived in 1987 by Soviet President Mikhail Gorbachev for the same purpose, no precedent exists. In the absence of any paradigm, cynical diplomats and nervous politicians raise the specter of terrorists who will be permitted to justify their crimes from the witness box, or guilty individuals walking free on legal technicalities or by retaining clever defense counsel. But this has not been Britain’s experience in bringing Irish Republican Army bombers to justice—the gravest danger has been of prejudiced juries and wrongful convictions—or of the United States in trials of violent radicals of the 1960s and 1970s. At Lockerbie, the one finding of guilt was inferred from demonstrable facts about the defendant and his movements, linked with forensic traces from painstaking scientific analysis of timers, circuit boards, and clothing.

There is no reason why an international court cannot perform as well as a local court in this respect, with the added presentational advantage over a jury of producing a written judgement. In judging political and military leaders, an international court has the advantage of impartiality, and it can apply command accountability principles. “Heroic” terrorist leaders like bin Laden would be subject to a demystifying process that confronts them with evidence of the moral and physical squalor in which they operated, with their hypocrisies and cruelties, and with the barbaric results of their rhetoric and theology. Any cult status they have acquired must dissipate with evidence that their God has failed—at least as they conceive Him. Their visions of triumph or of a martyr’s glorious death is refuted by the simple fact that they are now neither in power nor in paradise, but in the dock.

This is one reason, of course, why Al Qaeda members never came out with their hands up. Their choice of suicide rather than surrender derives from the belief that by dying mid-jihad they will be transported into paradise. The leadership also recognizes that capture followed by trial will fatally damage its cause. A criminal trial would strip bare their philosophy and reduce the accused to the harsh reality: men guilty of a heinous crime against humanity. The hateful and hate-filled mind thus displayed—through prosecution evidence and the optional addition of the defendant’s testimony (confined to the issue of whether he really did intend to kill innocent civilians)—will not inspire love, respect, or emulation.