December 21, 2001

William Bourdon
Président, Sherpa (Paris-based NGO for transnational justice) Ex-Sécrétaire Général, Fédérationm International des ligues des Droits de l’Homme [FIDH] (International Federation of Human Rights Leagues)
Interviews and Introduction by Marguerite Feitlowitz

In the French legal system, there is no equivalent for the military commission currently being proposed by President Bush. There have been special army tribunals for the prosecution of French soldiers who committed infractions during war and even, in special cases, in times of peace. But these are conducted according to specific rules and regulations, and have no congruence with U.S. military commissions. Just this week, in fact, we had the trial of a French soldier [Maj. Pierre-Henri Bunel] who was convicted of having passed classified documents identifying potential NATO bombing targets to a Serbian agent in 1998. The soldier mounted a full defense (with lawyers, character witnesses, and psychologists), the proceedings were reported in detail, and a transparent judgment was reached¹.

President Bush’s Military Order of November 13 is cause for great concern. The Geneva Conventions are very strict about the rights and protections accorded to POWs, and there can be no exceptions for individuals captured in Afghanistan. We must concede that during the Second World War, General De Gaulle abused the rights of prisoners, held secret tribunals, denied defendants the right to a good defense. That sort of behavior belongs to the past. Or so we would hope. Recent killings of prisoners in Mazar-i-Sharif must be investigated, for it appears that these were war crimes. Today, a state of war allows for the pursuit of prisoners, but always in respect of and in compliance with international law and, in France, with the French constitution. Today, every person subjected to trial by a democratic country must have certain inalienable rights: the right to defense counsel and the right to appeal are among the most basic and may never, under any circumstances, be legitimately withheld.

President Bush’s Order is also terribly misguided. The horrendous attacks of September 11 were a crime against humanity. Therefore, the only reasonable recourse would have been to secure the support of the Security Council to set up an Ad Hoc Tribunal to try bin Laden and any others involved in those events. You can’t simultaneously define this as a crime against humanity and then deny jurisdiction in an international court. Especially for Moslem countries, such a trial would have been infinitely more legitimate and persuasive than a secret trial closed to the world. Some have argued that secret military tribunals may help foment extremism. That may be. What worries me is that the Bush plan puts Moslem moderates in an all-but-untenable position. It frustrates the work that is being done to open lines of communication, maintain dialogue. There should at least be certain legal guarantees—that bin Laden would be tried by a multi-national court, that the defendants wouldn’t be herded immediately to the gallows. The United States is presenting an image of barbaric justice, playing out an absurd incarnation of the ultimate battle between Good and Evil. Not only is it absurd, it does not comport with accepted legal principles.

The United States is demonstrating the absolute incoherence of its foreign policy. On the one hand, it sought UN authorization for a military response in legitimate self-defense; it then went to NATO which, for the first time in its history, activated Article 5 of its Charter [which says that an attack against one member is an attack against all]. And then, even as it organizes and runs a military/intelligence coalition to combat this international crime, the United States refuses an international tribunal, and continues to sabotage the establishment of the ICC [International Criminal Court]. The December 6 vote in the U.S. Senate is crystalline proof of this paradoxical attitude. In the long term, I think it is counter-productive for the United States. The present situation is already very difficult, divisions are deepening, and yet the U.S. insists on defying developments in global justice. Transnational justice has much more credibility than the kind of justice the U.S. is proposing with this Order; America does itself a disservice by not getting on board. Let me also say that in granting its September Resolutions, the Security Council should at that point have insisted on international tribunals for bin Laden and his cohorts.

The United States will face severe criticism from European nations not only for flouting international law, but also for its abuses of domestic civil liberties. Hundreds of people have been detained: we don’t know who they are, where they are, or if they have lawyers. The whole mechanism is very dangerous.

All this reflects badly on the United States, especially at the precise moment when the war in Afghanistan is ending, and the U.S. will be instrumental in cementing a legitimate, impartial, and just administration in that devastated land.

(This interview was conducted in French and translated by Marguerite Feitlowitz.)

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