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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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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