High Court, London, EnglandKurt Barling with the BBC reports:
Last week, sitting in Court number 2 at the High Court on the Strand, I was reminded of a story my father told me when I was a young boy. Sixty years ago he was a teenage witness to the Allied war crimes trials at Nuremberg.
He lived and survived in the city which had been razed to the ground by allied bombing. Those responsible for unleashing war in Europe, bringing tragedy to their own people and millions of others across the continent, were tried in an international military tribunal which tried to avoid “victor’s justice”. The judgement of Nuremberg was just.
Even though there were critics of this process, like others in Germany at the time my father grew to understand and respect the significance of that process of justice which made the Nazi leaders account for their criminal behaviour.
The countless crimes the Nazi leadership committed were judged openly. The courts were presided over by allied civilian judges and then by the court of public opinion, both in Germany and the rest of the world via radio and newspaper reports. Most were sentenced to death, others like Goering cheated Albert Pierrepoint’s noose by committing suicide. Some like Albert Speer were given long prison sentences.
The message from these trials was a challenge to totalitarianism (not withstanding what was subsequently revealed about the Soviet Union). The net result was that the Allied powers were revered for their magnanimity in victory and the nobleness of their approach to meting out justice. Summary justice would have been far easier. These hideous men were allowed a defence and all the world could see how absolute power could corrupt and bring a great civilisation to its knees.
The legacy of the Nuremberg trials survived the Cold War. The United Nations used it to lay the foundations of international criminal law. It could be seen in the trials of Slobodan Milosevic and other offenders charged with war crimes resulting from the conflict after Yugoslavia broke up in the 1990s. In Rwanda in the trials of those responsible for the genocide and now in Baghdad with the trial of Saddam Hussein one imagines the echoes of open justice started at Nuremberg.Bisher al-Rawi
In a sense this legacy found itself in the dock in Court 2 last week. The families of Bisher al-Rawi, Jamil el-Banna and Omar Deghayes were seeking to convince two English judges that they should issue an order compelling the British government to intervene on their relatives’ behalf. None of the men are British nationals. Al-Rawi is Iraqi, el-Banna is Jordanian and Deghayes is Libyan.
All three men have been held since 2002 by the Americans, for the most part at the detention centre at Guantanamo Bay, Cuba. It is the families’ contention that the British government helped put them there. The government has consistently denied this.
The three men have not been charged and are therefore not to be put on trial for any specific offence by the Americans. It is not clear when and how they will be released.
Despite repeated requests by the families, the Foreign Office has refused to intervene over the past three and a bit years. Although not British the men were all long term residents in London and their families reside here. The government maintained it has not been their responsibility to assist them in any way.
The British government, remember, did lobby for the release of a number of British citizens. None were arrested or charged with an offence on their return to the UK.Jamil el Banna
The government argued that as well as not having diplomatic responsibility for these men, they did not want to create a costly precedent for 2.6 million other British residents calling for government support at some future date. Curiously they also argued that having the men there enabled them to constructively engage with the US authorities over general detainee policy. Finally, all three men either pose or might pose unspecified risks to national security according to our intelligence services.
Bisher’s brother Wahad al-Rawi who lives in Leeds has been doggedly trying to get dribs and drabs of information about his brother for three years. His health has deteriorated since I first met him in 2003. The stress of trying to manage his mother’s expectations and that of the rest of his family has taken its toll.
On the first morning of the hearing last week the al-Rawi family and their lawyers were thrown into a state of confusion. A letter from Her Majesty’s Government said they would now make representations to seek Bisher’s release.
Unsure of whether to trust the government, they continued with their case to get the court to compel the government to act. There was no real explanation of why the government had changed its mind. The families remain in a state of confusion.
In a move which appeared on the surface to smack of state arbitrariness, the government made no such offer of help for the other two men at Guantanamo. Because there was no explanation, no-one quite understands on what basis the government is acting. To the advocates of the three men, it does not seem fair particularly as Jamil el-Banna has five children living in north London all of whom are British.Omar Deghayes
It is a matter of public record that several ministers have expressed their disapproval of the continued detentions at Guantanamo. The court was told that the Americans and British governments are in discussions about how to effect the repatriation of detainees. Reading between the lines it seems clear that both administrations are beginning to recognise the stain that is rapidly sullying their international reputations.
Bisher al-Rawi and Jamil el-Banna say they were business partners back in 2002 along with Wahab. They had a plan to set up a factory in the Gambia producing peanut oil and as a consequence, say their relatives, they were on their way to the Gambia on peanut growing business when they were arrested by the Gambian police. The families assume their arrests were requested by the Americans.
Both men were among a small group of Muslims in 2000-2001 who were familiar with Abu Qatada. Qatada was a leading Islamic authority in Britain and as such was sought out for guidance on Islamic matters. Wahad says it was these links that made any information he or his brother had potentially useful to the intelligence services
It appears that this relationship exposed them not only to interest from the British intelligence services but also the CIA’s. Evidence before the judges clarified that the British government had passed information on these two men to a foreign intelligence service.
In court, lawyers for the family made it clear they believed the British information led to the seizure of the two men and their forcible removal to Bagram airbase in Afghanistan. The American military then moved the men to Guantanamo. The families maintain British intelligence officers interviewed the men face to face both in the Gambia and in Guantanamo. The episode so far wouldn’t be out of place in a Cold War spy novel.
The evidence in Court 2 suggested we are possibly entering some kind of end game at Guantanamo. For many Muslims around the world though, Guantanamo has undermined their faith in the values of International Criminal Justice so painstakingly nurtured after Nuremberg.
Unlike the legacy of Nuremberg it is doubtful detention at camp Delta will ever be seen as just. For a start there have been very few trials, precious little accountability and virtually no scrutiny. It will be very difficult for the allied powers to claim the high moral ground for the foreseeable future.
Muslims, both inside and outside the Muslim-majority world, will undoubtedly argue that whilst Britain and America may not be the worst human rights abusers, they can longer claim to be the best protectors of those human rights either. This is more likely to be the legacy of Guantanamo.
The High Court judges will give their written judgement in a few weeks time.
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