An act of vengeance, not justice: Geoffrey Wheatcroft argues that prosecuting war criminals devalues our civilisation

IN LOS ANGELES on Monday, Alexander Schweidler was told he must leave the United States as an alleged war criminal. But, although he is a British subject, he probably won't be prosecuted under our War Crimes Act if he returns to this country. Indeed it looks possible that there will be no prosecutions under British law, and even likelier that, if there are prosecutions, there will be no convictions.

Those who opposed the Act - and those who are sceptical about 'war crimes' trials in general - have some reason to feel vindicated. We have already seen the collapse of the Demjanjuk case in Israel; it might be remembered that the crucial mistaken identification only transpired after he had been convicted on a capital charge.

Almost unreported a few days ago, the defendant in a similar case in Australia was ruled too ill to stand trial. Two previous trials there had already failed to secure convictions. The Australian government has now withdrawn funds for further investigations, and it is assumed there will be no more prosecutions. This is relevant, because the Australian law was passed before the British one, and was used as a precedent by proponents of our own Bill.

That Bill's passage remains a puzzling episode in political history. Originally a Private Member's Bill, it was never part of the government's legislative programme or of any party's electoral manifesto. The Commons voted for it several times but although the Ayes may have outnumbered the Noes, both together were outnumbered by MPs who didn't bother to vote at all.

It was then thrown out by the Lords. That incensed Margaret Thatcher, who had taken the Bill to her heart. In a fit of polltaxitis, she insisted that the Bill be reintroduced, and if necessary its passage assured by invoking the Parliament Act to override the Lords' veto.

More surprisingly, it was John Major, after he succeeded Mrs Thatcher, who invoked that Act (for only the fifth time in 80 years, if I have counted correctly), and secured the Bill's passage. This was surprising because in the initial free vote the Member for Huntingdon had voted against the Bill. Although no prosecutions have yet been initiated, at least pounds 10m is estimated to have been spent on investigations.

When the Bill was being debated, confused arguments were used, on both sides. Some opponents deplored a vengeful hunting of 'pathetic old men'. The late Lord Grimond incautiously asked: 'If Nazi torturers are to be hounded down, why not others? Why not the Stern gang?' (They were the Jewish extremists who fought the British 50 years ago; as a general principle, comparisons between Nazism and Zionism should always be avoided.) That missed the point. Those concerned may well be repulsively evil men, who deserve none of the pity Lord Grimond hoped for. The real argument concerns justice.

Simon Wiesenthal, the Nazi-hunter, called his memoirs Justice Not Vengeance. Apart from being a trifle defensive, this title implied an absolute distinction which does not exist. If revenge, in Bacon's words, is a kind of wild justice, then justice is a kind of regulated vengeance, with the state taking retribution out of our individual hands and exercising it on our behalf.

What distinguishes the two is that regulation. As opposed to vengeance, a system of justice - the rule of law - is a set of rules, which are designed to achieve not so much absolute truth as the greatest possible fairness. Above all, such a system gives all the protection it can to the accused. That is peculiarly true of English law, with its presumption of innocence, burden of proof and rules of evidence.

The War Crimes Act is not only a flagrant case of retroactive legislation, it flouts most of those safeguards. It practically assumes that the normal rules of identification would be too stringent after an interval of 50 years - as the Demjanjuk case confirmed. It was for all of those reasons that Lord Bauer made what was surely the best as well as the shortest speech on the subject in either House of Parliament. Explaining that he is of Hungarian-Jewish birth, and that his father had been killed by the Nazis he emphatically stated that: 'This Bill is another step towards the erosion of the rule of law.'

It may be painful to think of men who have perhaps committed revolting deeds (not crimes: that begs the question) living for many years untroubled and dying unpunished, but that's life. Or rather, that's the rule of law, and that is far better than introducing what are in effect political laws in order to hold what are, in the strict sense of the phrase, show trials.

That is a harsh expression, but its aptness has in effect been conceded by proponents of these laws. There is no need to look for a conspiracy or 'hidden agenda' to see why several countries were pushed into passing laws that are now widely regretted. The agenda was quite open. One of the lawyers who drafted the Australian war crimes law spelled it out when he said that the purpose of the law was to see that National Socialist crimes were never forgotten. On another occasion, an Israeli official justified the Demjanjuk trial in almost identical terms.

To which, one answer is that keeping alive the memory of those unimaginably terrible events is a very good motive for writing books, composing music or making films, but a very bad motive for passing laws. In Israel, the laws have had a particularly clear political purpose, but I believe many Israelis, and other Jews, deplore the idea that the memory of the death camps should be in any way used to justify shooting children on the West Bank.

There is a lesson in all this. Instead of pleading for compassion and pity (which might well be misplaced), opponents of the Act should have looked at it from another angle. There is a comparison with the question of capital punishment. What is wrong with the death penalty is not so much its unfairness to the condemned (who may be a vile murderer deserving no better, just as the tabloids say) as to us. Hanging is unfair to us who break the necks of the condemned through the agency of the executioner. It is our standards of civilisation, not the murderer's, which are lowered by putting him to death, as much as they would be by using judicial torture.

And our standards of justice were compromised when the War Crimes Act was passed. It would be terrible if the deeds of the Third Reich were ever forgotten. It would be no bad thing if the Act was.

(Photograph omitted)