Crimes of War

September 21, 2001

Eyal Benvenisti
Professor of International Law, The Hebrew University, Jerusalem
Visiting Professor, Columbia Law School

Why not simply say it was murder? No term is stronger, no definition more accurate. In peacetime, murder is murder is murder. I’m speaking here in moral rather than legal terms, but I think it is important to assert.

Should the events of September 11 be considered an “act of war”? It depends on whether a government was involved. Such involvement need not be direct. By even allowing individuals in its territory to prepare and carry out the attacks, that state would be an accomplice. Of course, hard evidence is required to make this determination.

I agree with those who have characterized the World Trade Center attack as a crime against humanity. It targeted civilians and certainly meets the threshold of horror. And because there is universal jurisdiction for crimes against humanity, every state has jurisdiction to prosecute this offense.

The attack on the Pentagon is a crime of war. Military bases are protected from attack during peacetime under the laws of war.

A basic idea in international law is that every state has sovereignty, which carries with it certain rights and duties. Every state has the right to protect its citizens and its territory and to direct its own internal affairs (unless it breaches international laws in doing so). Every state also has the duty to prevent its nationals from harming other states. When a state breaches this duty, then the victimized state has resort to the basic principle of self-defense, which includes the right to react in order to prevent recurring or imminent attacks.

Now a question arises. Do we act in under a `law and order’ framework, according to which we arrest Osama bin Laden and his aides, try them, and if there is no `reasonable doubt,’ convict them? Or do we act the framework of `international armed conflict.’ I believe that events have put us in the second scenario.

States have the opportunity to petition the United Nations Security Council to approve the use of force for self-defense. The international consensus and support of such a vote has obvious advantages. But urgency and the political difficulties of getting the vote also come into play.

Some will dispute what I’m about to say, but I believe that Article 51 of the United Nations Charter would justify an immediate military response from the United States, acting alone or with the aid of its allies. Although we are not yet certain, the evidence suggests that Osama bin Laden is both behind this attack and planning future ones. There is also evidence that Afghanistan has harbored him in the past, and may well be doing so now. It could be argued that there is no time for Security Council deliberations and that the United States must respond swiftly to “do whatever is necessary to restore peace,” i.e. to end a climate of threat and terror. The U.S. must provide evidence for its decision, demonstrate necessity, and clearly identify its targets.

The laws and customs of war then apply. The United States must use proportional force, and observe distinctions between legitimate and illegitimate targets. International law provides for what may at first seem cruel: in war, it is not murder if you kill a soldier. It is illegal to target civilians. The difficulty in this case is that the combatants wear no identifying uniforms or insignia and instead disguise, shield themselves by blending in with the civilian population. If you cannot distinguish the combatants, then collateral damage is likely to be high.

I’m very concerned. We have seen in the Middle East over the last ten, fifteen, perhaps fifty years, how a cycle of terrorism and counter-terrorism only serves to perpetuate and escalate the violence.

International cooperation will be essential here. The principle of necessity is, as I said earlier, extremely important. If threats work, so much the better, if they encourage cooperation from factions who have harbored bin Laden (again, assuming he is responsible).

Under UN law, there is no right to unilateral reprisal; states may use force only in self-defense. However, an argument can be made that if a nation has sufficient indication of imminent attack, it can resort to force as a preventive measure. During the Cuban missile crisis, a prominent law professor in the U.S. was widely quoted as saying that a state need not “wait like a sitting duck to be attacked.” I must say that international law is not sufficiently clear on how much evidence is required to indicate the probability of imminent attack, and so justify the resort to force.

Let me also say that if these are crimes against humanity, and there are leaders of governments who aided, abetted, or even just tolerated their preparation and execution, then they could be brought to justice as accomplices to the act. With the arrest of Pinochet, the ICTY and ICTR, and the movement to establish the International Criminal Court (ICC), the international community has shown its resolve to confront and prosecute the perpetrators of heinous crimes. I would not wipe out an accomplice government, but I certainly believe there must be accountability.