Crimes of War

October 7, 2001

Michael Scharf
Director of the Center for International Law and Policy
New England School of Law
Interviews and Introduction by Marguerite Feitlowitz

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.