Hamdan Trial is Not Nuremberg

In disbelief, I heard Melissa Block call the Hamdan trial "the first war crimes trial since Nuremberg" on NPR last night. Set to correct her, I tried to Google the story, and found a rash of other, similar mischaracterizations by the media. Clearly, either US journalists are simply ignorant of the concept of war crimes, much less the history of war crimes trials, or they are engaging in some willful regurgitation of Bush Administration rhetoric. (Hmm, could it be both?)

Let's set the record straight: there have been literally thousands of war crimes trials since Nuremberg. This is because war crimes trials can take place in one of three ways.

First, a state can (nay, must) try its own soldiers for violating the Geneva Conventions. And countries, including the US, in fact do this all the time: the trial of Lieutenant William Calley for the My Lai massacre and of Army Spc. Charles Graner Jr., for detainee abuse at Abu Ghraib are but two prominent examples.

Second, a state may try captured enemy prisoners of war for violating the laws of war during an armed conflict. (But, POWs cannot be tried simply for participating in an armed conflict.) The military commission trying Hamdan may come closest to this model, except of course that the USG has declared Hamdan is not an POW.

Third, alleged war criminals may be tried by international war crimes tribunals. The first one since Nuremberg, the ICTY was established in 1993 by the UN Security Council to try soldiers accused of atrocities in the former Yugoslavia. It has completed nearly 200 trials; Radovan Karadzic is the merely the latest. Then there's the ICTY's Rwandan counterpart, which has been working to try the masterminds of the Rwandan genocide since 1994. A range of other ad hoc tribunals have been established since then to deal with conflicts such as those in Sierra Leone, Cambodia, Kosovo. War crimes trials have taken place in all of them. Finally, there is the International Criminal Court, which began its first trial of alleged war criminal Thomas Lubanga last year.

Moreover, the Hamdan trial is not even the first trial of an "enemy combatant" in the war on terror, so to characterize it as some kind of a test case is to engage in egregious historical amnesia. For instance, the trial of Khalid Sheikh Muhammad in 2006 certainly fit this description, as the attacks of 9/11 have been treated by the Bush Administration as the opening salvo in this so-called "war." And another thing. The trial of Hamdan is not really a "war crimes" trial at all, because Hamdan is not a soldier who was bound by the Geneva Conventions (war crimes, after all, are violations of the Hague and Geneva conventions, which place limits on what soldiers can legitimately do). Instead, Hamdan stands accused of complicity in terrorist activity, for his associations with al-Qaeda. Were this a conventional war, his behavior (driving bin Laden about) would be analogous at best to "abetting the enemy" as a civilian; that's not a punishable war crime, although the laws of war allow a state to detain civilians it thinks are a security risk. If as a civilian he took direct part in hostilities, he could be tried for doing so (unless he was defending his home village) but that's not a war crime; that's just basically a crime.

So what is behind the set of brazen fabrications in the trope comparing Hamdan to Nuremberg? Perhaps the Bush Administration's need to ignore the true analogy to Nuremberg that the war on terror presents... the possibility that high-ranking US officials could one day be tried for crimes against the peace and for atrocities against detainees. In fact that is what is really historic about the Hamdan case: the Supreme Court's ruling in 2006 that the USG was in violation of the Geneva Conventions itself in relation to its handling of Hamdan.