Crimes of War

November 11, 2001

Abdullahi Ahmed An-Na’im
Charles Howard Candler Professor of Law and Fellow of the Law and Religion Program, Emory University
Interviews and Introduction by Marguerite Feitlowitz

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 don 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.