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The Bush administration has declared that the coming military response
to the attacks of September 11 will be fought not just by soldiers,
but by police and intelligence forces, as well as in financial institutions.
Does this represent a paradigm shift in the nature of war, and will
IHL be sufficient to regulate this conflict?
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here to e-mail us your comments on the subject.
Abdullahi
Ahned An-Na’im
Charles Howard Candler Professor of Law and
Fellow of the Law and Religion Program
Emory University
Michael
Scharf
Director of the Center for International Law and Policy
New England School of Law
H.
Wayne Elliott S.J.D.
Lt. Col. (Ret.) U.S. Army
Former Chief, International Law Division
Judge Advocate’s General School, U.S. Army
Robert
Kogod Goldman
Professor, Washington College of Law
American University
Abdullahi
Ahmed An-Na’im
Charles Howard Candler Professor of Law and
Fellow of the Law and Religion Program
Emory University
The
attacks of September 11 are horrible and cruel and should be defined
as crimes against humanity. But we must also recognize that this
sort of thing—and worse--has happened in many other parts of
the world. Maybe the paradigm shift, for those who see one, is that
the atrocity happened in the United States.
One of the lessons of September 11 for me is that it brings out
our shared vulnerability. And this shared vulnerability should encourage
us to take international law even more seriously.
I wish to make a point from a specifically Islamic perspective.
In no wise can the attacks be justified, or even considered, as
jihad. There can be no pretense that these attacks were intended
to propagate the faith; they were a blind attack of hatred and destruction.
Let me also stress that I have long written and argued that jihad
must be abolished as an Islamic law imperative.
From its inception in seventh century Arabia, the notion of jihad
included an element of self-defense (and of course we never want
to take away the right to self-defense, which is enshrined in international
law). But jihad also has included an element of aggressive
war for the purpose of spreading the faith; it is not supposed to
be waged for gaining territory or subjugating other peoples. History
demonstrates that the original concept of jihad has been
violated in practice. (Of course some of the risk was built in from
the beginning because motives of material gain of spoils of war
and political control of non-Muslim populations were the practical
incentives for Muslims to engage in jiad). There are Muslims
today, including myself, who have been arguing that this notion
of jihad is no longer tenable because international relations are
now governed by the rule of law, and not by self-help and vigilantism.
It is for this reason that I feel profoundly disappointed, indeed
betrayed by the lawlessness of the U.S. response to the attacks
of September 11. It completely undermines any possibility of a credible
Islamic argument against jihad. If the world has not changed
so that the rule of law prevails over self-help, if we settle our
differences through brute force and power, then the proponents of
aggressive jihad are right. To defeat the "bin Ladins"
of the Muslim world, and international terrorists everywhere, it
is imperative that we emphasize and exercise international legal
means for the adjudication of differences and responsibilities.
Otherwise, how does one condemn and combat terrorism as means to
vindicate perceptions of injustice and victimization?
The purpose of international terrorism is to dehumanize us, reduce
us to a level of savagery and rage so that we strike back without
considering the consequences of our action. Terrorism tries to make
us reckless about human life, indifferent to human suffering. The
sad thing is that the U.S. has reacted in exactly the way the Taliban
and all those who are behind the Taliban would want, thereby betraying
those Muslims who are call for the rule of law in international
law and respect for human rights and humanitarian law.
As I said earlier, my position is that the attacks on both the World
Trade Center and the Pentagon are legally defined as crimes against
humanity, among other international crimes. The culprits, and those
who bear responsibility, must be punished.
But this is no justification for the U.S. response, especially for
the aerial bombing which began on October 7. The bombing is radically
counter-productive, a case of state terrorism, in my view. It is
indiscriminate and senseless, and cannot possibly achieve the objective
the U.S. claims it wants to achieve. Moreover, there is no way of
judging or assessing the credibility of that objective or its legitimacy.
To put this is classic IHL language the bombing of Afghanistan carries
with it an unacceptable risk of civilian casualties, and lacks proportionality.
I see no moral difference between the attacks of September 11 and
the U.S. bombing of Afghanistan from October 7. What is the difference
between sending hijackers to strike at civilian targets as happened
on September 11 and sending B52s to bomb and destroy civilian lives
with the hope of somehow catching some of the people who are suspected
of having connections to the September 11 atrocities? It is even
more objectionable that the bombing is being executed by a state,
a super power, a permanent member of the Security Council.
This brings us to another very disturbing element in the picture,
and that is the complicity of the Security Council in the U.S. bombing
campaign. The Security Council has been unwilling to stand up and
clearly define the scope and objectives of the military operation
and the implementation of sanctions. There should be a clearly defined
point at which the U.S. must stop its military campaign for the
UN to take over. The Security Council has been horribly lax in letting
the U.S. stretch the concept of self-defense. As any first-year
law student can tell you, self-defense must be "necessary,
proportionate, and addressed to the source of the danger."
Does self-defense include replacing the government of Afghanistan?
Does it include occupation? What are the limits? Where is the language
in the Resolutions where the Security Council authorizes and defines
the parameters of this U.S. operation?
Why is the Security Council being silent? Because each member state
has its own agenda. All five permanent members are conspiring here
to paralyze, to marginalize the UN system altogether and the Security
Council in particular. It is a terrible spectacle, which endangers
the credibility of the UN Charter. And again, if the UN is seen
to be unwilling or unable to adjudicate grievances, how do we argue
against jihad?
It must of course be said that no one comes to this with clean hands.
A host of countries have sponsored international terrorists and
domestic terrorist acts. The question is: Are we consistent in acting
against all those who commit such crimes, or are we being selective?
Are we going after the poorest and the weakest and the most vulnerable?
Osama bin Laden has been funded, aided, and harbored by several
governments, including some close allies of the U.S. in this campaign,
like Pakistan. Does the U.S. now intend to punish them all under
the guise of self-defense?
This is yet another argument for legal, rather than, military recourse.
If the war spreads into neighboring countries it will be harder
to maintain the so-called coalition, with the U.S. attacking other
countries like a kind of Lone Ranger. A regional war could have
devastating and far-reaching consequences, and must absolutely be
avoided.
I see this as a matter for law enforcement. We need to engage in
an international process whereby the culprits can be identified
and brought to trial. As a model I would point to the prosecution
of the Lockerbie bombing case. There is, of course, an irony in
U.S. efforts to block the establishment of the ICC [International
Criminal Court]. That would have been the perfect forum for this
prosecution. There could also be a UN Tribunal, on the lines of
the ICTY. Some have suggested extending the jurisdiction of the
ICTY, which I think would be fine and feasible. The court must certainly
sit in a neutral country, perhaps the Netherlands, where Lockerbie
was prosecuted and where the ICJ [International Court of Justice]
sits. We must remember that the supposed culprits of the September
11 atrocities represent a host of nationals—Saudis, Egyptians,
Afghans, Lebanese, among others. The victims too came from many
different countries.
From my point of view, there is no need to have a majority of Islamic
judges or even a significant Islamic presence. The important thing
is that the prosecution be international, multi-lateral. It must
not be polarized: the so-called Islamic world against the so-called
West. It must be seen as a global initiative, something like the
ICJ. There is an old maxim: It’s not only important to have
justice, it’s important to see justice being done.
There is a great deal of legal imagination and ingenuity in the
world today. Numerous institutions could participate in the pursuit
of justice. I am told that during the first week of October, the
Foreign Minister of Iran made the British Foreign Minister a very
interesting offer: namely to use the mediation of the International
Islamic Conference Organize (which was to meet the following week
in Bahrain) to agree on a forum whereby suspects in the September
11 attacks could be brought to trial based on the evidence.
I must add a note of caution: The evidence against the suspects
must be convincing for a judicial organ to be the basis of a valid
determination of guilt. At this point, there is strong suspicion,
some persuasive history, but insufficient evidence to prosecute
and convict Al Qaeda. Osama bin Laden could well be the culprit,
I believe he is capable of such a crime. But I heard that some Western
European politicians who have seen the documentation do not believe
it sufficient to stand in a court of law, but that is not justification
for arbitrary retaliation by the US or other governments. The essence
of the rule of law is that it is not whether one is "convinced
of a person’s guilt, but that guilt is determinate through
a judicial process."We must not convict on the basis
of secret or unsubstantiated evidence. There can be no guilt by
association; we must pursue individual criminals who may also be
part of a vast network.
We might point to the case of Timothy McVeigh, a terrorist who committed
the most atrocious crime in U.S. history up to Sept. 11. Yet there
was no talk about `getting him dead or alive,’ there was no
talk of diminishing or denying any of his due process rights, no
talk about short cuts or secret evidence. He was tried with the
full protection of the law, given every opportunity for appeal,
and ultimately executed in due process terms. What is the difference
between a domestic terrorist act and an international one? Doesn’t
every trial require transparency?
I urge the United States to give criminal prosecution a better chance,
and to look at an exemplary period in its own judicial history.
In the decades spanning the 1920s through the 1940s, organized gangsters
unleashed a streak of violence, intimidation and corruption that
really gutted the whole system. Yet the U.S. pushed on and step-by-step
built a credible system that would stand up to the highest standards
of international law enforcement against organized crime without
compromising on due process.
The people living in the shadow of the Taliban and bin Laden—who
is at this point a metaphor for whoever is responsible for Sept.
11 — need the example of justice and rule of law in international
relations against their oppressors. If bin Laden and his ilk were
to come to power, the people would suffer even more than they are
suffering now in Saudi Arabia, Egypt, Afghanistan, and other places.
Look at the Taliban treatment of women. Bin Laden’s complaint
against Saudi Arabia is that it is not sufficiently repressive.
As a Muslim, Islamic fundamentalism is my worst nightmare. And the
irony is that for the last fifty years, U.S. foreign policy has
helped to fuel this evil. The U.S. and Britian backed the overthrow
of democratically-elected government of Iran in 1953; and brought
in the Shah, funding the notorious SAVAK [security forces] in the
process. That paved the way for the rise of Khomeini, who came to
power in 1979. Iran is slowly climbing back to some level of decency
and genuine democratization.
American blunders have had both immediate and far-reaching consequences
in the recent past, and now we see another attempt to play God in
Afghanistan. The American scenario for disaster this time is to
attempt to weaken the Taliban so that the Northern Alliance can
advance--but not so much that they could interfere with plans for
re-installing the former King. All this is playing God. It must
stop. This is not chemistry in a lab. It is people’s lives
and very often their terrible deaths.
The only rational and civilized thing to do, in my view, is for
the attacks of September 11, their root causes, and their consequences,
to be dealt with internationally and through the rule of law, instead
of U.S. vigilante justice.
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Michael
Scharf
Director of the Center for International Law and Policy
New England School of Law
There has been a lot of talk by a lot of people about a sudden paradigm
shift in the nature of war. But it’s just plain wrong, and
flies in the face of recent history.
The paradigm shift can be traced to 1985, when Libyan terrorists
set a bomb off in the La Belle Discotheque in Berlin, killing a
member of the U.S. armed forces. The shift has come to be called
the Abe Sofaer Doctrine, after the author of the State Department
Memorandum done in response to that act of terrorism. According
to the Sofaer Doctrine, when a country aids or abets or gives sanctuary
to a terrorist, the U.S. has every right to use "peremptory
self-defense" to protect itself from future acts of terrorism.
The Sofaer doctrine was invoked for the first time when we bombed
Tripoli in early 1986, just a couple of months after the disco was
bombed. It has been used numerous times since, notably during the
Clinton administration, when the U.S. bombed:
-
The Central Intelligence facility in Bagdad, after we had evidence
that Iraq was trying to assassinate former President Bush;
- Osama
bin Laden’s training bases in Afghanistan;
- The
Sudanese pharmaceutical company reported to be manufacturing chemical
weapons. (There was later some question as to whether this plant
was in fact preparing for biological warfare.)
The
United States has long accepted that it has the right to use force
(in "peremptory self-defense") against any country that
can be linked to terrorists or terrorist threats.
The only difference now is that the 9/11 attacks were much greater,
more extreme than any of the attacks that preceded them. The threat
is seen as much bigger and more immediate.
It is worth noting that after Pan Am 103 was downed, former President
Bush threatened to use force against Libya (again, invoking the
Sofaer Doctrine). Ultimately, he decided to go to the UN Security
Council instead, and got financial sanctions. But the former president
was laying the groundwork for a military strike and using all the
same language we’re hearing now from the present administration.
None of this is new.
Only the "wrinkles" are new. We are finally getting cooperation
in shutting down the terrorists’ financial networks. But again,
this is only because the attack itself was so enormous and we’re
putting more pressure on countries to do what we always asked them
to do in the past.
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H.
Wayne Elliott S.J.D.
Lt. Col. (Ret.) U.S. Army
Former Chief, International Law Division
Judge Advocate’s General School, U.S. Army
I do not see the sentiment expressed in the quote as a "paradigm
shift in the nature of war."
Modern war has always been fought on several "fronts."
Making it difficult for the enemy to finance his war effort has
a long and established history. The U.S. makes it very difficult,
and often illegal, to engage in trade with a warring State. Following
the money and making it unavailable to the enemy is nothing new.
Clearly, the United States could track any money in any source or
institution where that money is intended to finance a criminal enterprise
directed against the United States. If anything, in my opinion,
the fact that the United States is now engaged in armed conflict
(whether properly denominated a "war" or not) would warrant
even greater use of these investigative tools. Not only have criminal
acts been committed against the United States which would warrant
arrest and trial of the offenders in peacetime, but, even under
the law of war, these acts would be criminal and those who perpetrate
them subject to arrest and trial.
Giving the police a role in the war effort is not new. During World
War II, the FBI was heavily engaged in identifying espionage and
sabotage directed against the United States. The Geneva Conventions
even suggest that the participation of law enforcement is expected
in the case of war crimes. In an article common to all four Conventions
there is a requirement that each Contracting Party "search
for persons alleged to have committed , or to have ordered committed,
such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts." Thus, the Geneva
Conventions anticipate a role for domestic law enforcement in the
punishment of war criminals who commit grave breaches.
That war criminals are to be treated as criminals and not simply
as Prisoners of War is supported by the practice of the Allies in
World War II:
In
April 1945 the Joint Chiefs of Staff directed Eisenhower to "search
out, arrest, and hold, pending receipt… of further instructions
as to their disposition, Adolf Hitler, his chief Nazi associates,
other war criminals and all persons who have participated in planning
or carrying out Nazi enterprises involving or resulting in atrocities
or war crimes." Quoted in William G. Downey, The
Law of War and Military Necessity, 47 A.J.I.L. 251, 257 (1953).
The verb "arrest" is instructive. Prisoners of war are
not arrested; they are captured or surrendered. Arrest is an action
reserved for suspected criminals. The apprehension of war criminals
was clearly part of Eisenhower's overall military mission.
(H. Wayne Elliott, The Trial and Punishment of
War Criminals 102, footnote 58, (unpublished S.J.D. Dissertation,
1997).
War
always brings some restrictions on liberties. That has certainly
been true in the wars of this country. But, these restrictions,
whether somewhat onerous, i.e., the draft; or less severe, i.e.,
gasoline rationing, have the primary purpose of speeding the end
of the conflict and thereby a "return to normalcy."
If the Taliban or Bin Laden have some particular idea of who "deserves"
to inhabit the world, that hardly means they have the legal right
to fulfil that dream by making war on innocent civilians. The attack
on public buildings caused the deaths of thousands of innocent people.
Under the domestic law of the United States, these attacks were
murder. Under the law of war, these attacks were "war crimes."
Either way, civilized nations must understand that those who make
war on innocents are properly subject to punishment and that punishment
can be on the field of battle or in the courtroom.
Victory over those who would make every American a target is imperative.
There is a role for the law in bringing about that victory.
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Robert
Kogod Goldman
Professor, Washington College of Law
American University
I think it's important to separate issues involving the actual conduct
of hostilities from those related to other aspects of the "war"
against terrorism proclaimed by the U.S., the UK, and its allies.
The conduct of military operations against Afghanistan, bin Laden's
organization and/or against nations that harbor or support them
is governed by international humanitarian law, specifically Geneva
and Hague law applicable to the conduct of international warfare.
Strict observance of the restraints and prohibitions in IHL by the
warring parties should spare victims and avoid unnecessary suffering
and destruction. Existing IHL is sufficient to regulate the conduct
of hostilities.
The other aspects of this "war" are not really covered
by IHL. In reality, while using the term "war", the U.S.
is essentially talking about a comprehensive global strategy to
confront and defeat terrorism. In that campaign, military force
is only one, and not the dominant, tool. As Secretary of State Colin
Powell,Attorney General Donald Rumsfeld, and other members of the
administration have indicated, bilateral and multilateral diplomacy,
together with the aggressive extraterritorial application of U.S.
laws ( such as blocking the foreign accounts and assets of suspected
terrorists and front organizations) will be the principal weapons
the U.S. and its allies will employ in this long-term campaign.
This will involve using the United Nations and key regional organizations,
such as the Council of Europe and the OAS, to promote cooperation
and new laws in this fight.
One can reasonably expect that the U.S. and the other G-7 members
will adapt a common policy to block loans and other forms of financial
assistance from the World Bank and IMF, as well as bilateral aid,
to states whose governments "sponsor" terrorism. Domestic
measures taken by the U.S. to deal with terrorists and their accomplices
found within this country which implicate the enjoyment of civil
liberties raise serious issues under U.S.constitutional and human
rights law, both customary and conventional (the U.S. is a party
to the International Covenant on Civil and Political Rights).
IHL technically applies throughout the territories of all the warring
parties during interstate hostilities and provides detailed rules
regarding the status and treatment of enemy aliens who find themselves
in the territory of the adverse party at the outset or during hostilities.
The U.K., for example, during the Gulf war detained or interned
various Iraqi nationals who were studying or living in Britain in
accordance with the Third and Fourth Geneva Conventions. It seems
doubtful that either the U.S. or the U.K., which are emphasizing
that it has no quarrel with the Afghan people, will undertake similar,
albeit lawful, actions against Afghan citizens in their countries.
Were the U.S. to do so, all such persons would be entitled to basic
constitutional safeguards, as appropriately informed by human rights
law, which could "trump" the more permissive norms of
IHL in this regard.
The use of the term "war" in connection with the global
campaign against terrorism is thus something of a rhetorical flourish.
This campaign, at least so far, has not changed the nature of warfare
or the relevance and sufficiency of IHL. Like the "Cold War"
in the last century, it will be waged by the various actors in a
twilight zone that is not quite peace nor war, as such. When armed
hostilities erupt either interstate or intrastate, whether characterized
by regular or irregular warfare, humanitarian law becomes fully
operative to the conduct of all the belligerents involved.
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