Looking at the hard realities of the situation, one wonders what effect it may have on the treatment of United States soldiers captured in future armed conflicts. It would have been prudent, for the sake of American soldiers, to respect humanitarian law.
Second, what must authoritarian regimes, or countries with dubious human rights records, make of the example set by the most powerful of all democracies?
Third, the type of justice meted out at Guant�namo Bay is likely to make martyrs of the prisoners in the moderate Muslim world with whom the West must work to ensure world peace and stability.
What other route could the United States have taken? The International Criminal Court could not be used to try the Guant�namo Bay prisoners because the Rome Treaty applies prospectively only, and the prisoners were captured before the Treaty came into force in July 2002. The United States courts could have assumed universal jurisdiction for war crimes. The prisoners would have received fair trials before ordinary United States courts. It would have been an acceptable solution. On the other hand, the Muslim world would probably not have accepted this as impartial justice. The best course would have been to set up through the Security Council an ad hoc international tribunal. That would have ensured that justice is done and seen to be done.
There is, of course, a dilemma facing democracies. Aharon Barak, President of the Supreme Court of Israel, presided in a case in which the court held that the violent interrogation of a suspected terrorist is not lawful even if doing so may save human life by preventing impending terrorist acts. He said:
'Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.' Such restraint is at the very core of democratic values.
Common Dreams finally has the whole F A Mann Lecture speech by Lord Steyn, a Lord of Appeal in Ordinary, he third-ranking judge of Britain's highest court.