A recent United States announcement that six of the terrorists being held at Guant?namo Bay in Cuba are soon to be tried by a military tribunal has sparked indignation in Europe and has raked up a still-smouldering controversy in the United States.

While acknowledging that terrorist acts constitute a violation of human rights, the European Parliament says it is keen to highlight “the underlying conditions that breed extremism” and to stress that the fight against terrorism must not in itself lead to breaches of human rights.

It may be that some of the disquiet on both sides of the Atlantic is caused by difficulty with the characterisation of the conflict with terrorists as a “war” in the real sense of the word.

There seems such an imbalance in power between the two sides, and the terrorists seem so to be tilting at windmills, that many of us, looking on, are prey to an urge to protect them from themselves. Two of those to be tried at Guant?namo are British, and the possibility of their being dealt with by an American tribunal does not sit well with the British people.

They are apt, after all, to mistrust all foreigners, and apt particularly to think, in a military context, of the American breed of foreigner as untrustworthy and irresponsible gunslingers. The fact that the ultimate sanction at the hands of an American military tribunal is death adds a spice of urgency and moral disapproval to the mix.

Many in Europe believe that the American administration prefers military tribunals because they stand a better chance of convicting the accused than civilian courts might. But as is so often the case, the facts are not what people want them to be.

In the first place, the terrorists themselves are in no doubt that they are fighting, killing and dying in a war. The more closely one examines their actions, the less becomes the temptation to think of them as confused Don Quixotes, tilting at windmills they imperfectly understand.

Irregular fighters have many times in history managed to defeat superior forces, so there is no practical reason to think of modern terrorists as less serious, or less engaged with what they are doing than regular fighters.

The Geneva Convention itself prefers the use of military tribunals in dealing with combatants, whether they are regular or irregular fighters. The theory is that military judges will better understand the exigencies of military action than civilians. And the Geneva treaties allow sensitive operational information to be presented in military trials behind closed doors, something that would be difficult in civilian courts.

It is interesting, in the context of a debate about how to deal with terrorists, to read what the chief American prosecutor at the Nuremberg Trials after the Second World War, Supreme Court Justice Robert Jackson, said about the procedure there. It was as much of an invention at that time, of course, as the Guant?namo trials are now.

“Unfortunately, the nature of these crimes is such that both prosecution and judgement must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals.

“Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the First World War, we learned the futility of the latter course.

“The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two.

“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice…”

The American administration is obviously reluctant to allow trials, especially of the leaders of the Taliban and al Qaeda, to be conducted in civilian US courts, where they would likely be turned into media spectacles and take years to settle.

It believes that those accused of terrorist acts will be tried at Guant?namo quickly, efficiently and without jeopardising public safety, classified information or intelligence-gathering methods and operations.

The administration wants the tribunals to protect American jurors, judges and witnesses from the dangers to them that are inherent in civilian courts. When the possible use of military tribunals was first announced in the United States, Attorney General John Ashcroft asked a Congressional Committee probing whether they were the best way to proceed: “Are we supposed to read terrorists their Miranda rights, hire a flamboyant defence lawyer, and bring them back to the US to create a new cable network of Osama TV or what have you?”

Despite his impatience, unease over how to fairly use military tribunals caused an 18-month debate in the US. It was only after Secretary of Defence Donald Rumsfeld asked for the advice of people like Lloyd Cutler, a Clinton-era White House counsel Bernard Meltzer, a University of Chicago law professor who had been a Nuremberg trials prosecutor, and William Webster, former head of the CIA, that the basic framework of the Guant?namo tribunals was agreed.

According to an article in the English Financial Times last week, the rules for these military tribunals “take full account of modern standards of international humanitarian and human rights law.”

The tribunals will respect the common law's presumption of innocence in favour of defendants, respect the law's burden of proof on the prosecution, respect a defendant's right to cross-examine witnesses and to call defence witnesses.

The rules will insist on disclosure of any exculpatory evidence and on the requirement of proof beyond reasonable doubt. A defendant will be given his choice of military counsel and also the ability to engage any civilian counsel who qualifies for security clearance. All convictions will be reviewed by an independent appellate panel - with one or more civilian members having authority to reverse judgments for serious errors of law. Members of the press will be entitled to witness the full trial proceedings, except when classified or sensitive information is presented.

A military “jury” will consist of three to seven panellists, all of them military officers. Although a two-thirds majority is required for conviction and sentencing in most cases, in a death-penalty case, seven panellists must be involved and must reach a unanimous decision.

A tribunal will admit evidence that would not qualify for admission to a civilian court, including second hand evidence and hearsay, as long as it would have “probative value to a reasonable person”. It will not require prosecutors to establish the “chain of custody” for evidence - that is, to account precisely for how it was transported from where it was found to the courtroom.

All in all, then, these tribunals are not likely to dispense the kind of frontier justice some in Britain fear they will.

Terrorists believe there are no innocent people in the world, and that all of us are therefore legitimate targets. In truth, what they do is a crime against civilisation, and no less a crime against civilisation than genocide.

Although terrorism is not a modern phenomenon, the willingness of people and organisations like the European Union to excuse terrorists in favour of blaming such abstractions as “the underlying conditions that breed extremism” is very much of our times.

What the EU ignores is that abstractions, like states, cannot commit crimes. Only humans can. If, in thrashing out the nature of the crime of terrorism, the proposed Guant?namo tribunals can restore good moral judgment on this point alone, they will have performed an important and worthwhile job for humanity.

As Supreme Court Justice Jackson put it, at the end of his opening statement about the defendants at Nuremberg: “The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.”