by Adele Gregory

Created on: August 13, 2008

Delaying a war crimes trial once conduct has been questioned can have negative implications on many levels humanitarian, judicial, practical and strategic.

The most serious of potential consequences is that harmful behaviour may continue in the interim. A trial does more than decide the fate of individuals, it also sets precedents. Decisions made in a war crime trial help to clarify the boundary between acceptable and unacceptable practices. If this is message is sent while the conflict is still going on, it will show personnel what lines are not to be crossed and could prevent further incidents. Justice that is done and seen to be done while the situation is still active can serve as both a guideline and deterrent in a way that delayed trials cannot.

The humanitarian benefit of avoiding possible future human rights breeches is obvious, but there are also practical implications. There will always be grey areas in issues of war and for the detainees at Guantanamo Bay, the circumstances are even murkier. Even their status is unclear. Are they subject to the Geneva Convention or any U.S. safeguards on the treatment of those accused of criminal behaviour? The longer it takes to clarify the standards of treatment they should expect, the more cases will have to be tried in full afterwards. In other words, reserving judgment until the end of the conflict might double or triple the number of cases for courts to wade through later on.

Even if no further incidents take place, delay never serves the cause of justice well. Trial delays prologue the stress and distress of those accused. Over time evidence can degrade or go missing and memories become hazier. If large groups of people are involved there is an even greater risk that evidence can be contaminated and testimonies influenced.

These arguments could apply to war crimes carried out in any conflict. But Guantanamo presents addition questions if trails are postponed until the war is over. What war are we talking about and what will mark its end? We are involved in Iraq and Afghanistan. But we are not at war with Afghanistan and Iraq has already surrendered. The end of a war between nations is typically formalized with a treaty. Who will sign the treaty ending these conflicts so that the war crimes trials can begin? Are we talking about the amorphous war on terror'? Today's terrorists operate in small isolated cells. We can't be sure that all of them are funded by Al Qaeda; there may not be a single central body to negotiate with,
so we have no way of knowing when or if the attacks will cease. Only a decade or so of hindsight will tell us which attack was the last.

But while all of this is going on, the world is watching and the battle for hearts and minds is being lost. Unpunished brutality at Guantanamo Bay undermines our ability to speak out about human rights abuses in other countries. The refusal to assign the detainees a legal status that carries clear safeguards and codes of conduct with it damages our image as a nation committed to the rule of law. Bringing swift justice in response to reported war crimes shows that we can be as good as our words. For those who have or could become radicalized, it is one less case to make against us.

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