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Terrorism, counterterrorism and international law.

INTRODUCTION

WHAT DO NELSON MANDELA, Menachem Begin, Gerry Adams and Yasser Arafat have in common? They all made the transition from being regarded as terrorists to being recognized as statesmen and peacemakers. In fact, three of them, Mandela, Begin and Arafat, have been awarded the Nobel Peace Prize and Mandela is viewed today by many as the leading moral authority of his time in the world.

What does this tell us about terrorism? If nothing else, that terrorism, the word on everyone's lips, is easier to talk about than to define. As one commentator, Nissan Horowitz, put it in the mainstream Israeli newspaper Ha 'aretz, "Terrorism -- it's all in the eyes of the beholder. Why is the attack on the Twin Towers called terrorism, while the bombing of a hospital in Kabul is not?" (1) Indeed, international lawyers have struggled to define terrorism for nearly a century, largely without success. In the words of the hoary cliche, "One man's terrorist is another man's freedom fighter." Or, in the context of Israel/Palestine, whom the Israelis call a terrorist the Palestinians call a martyr.

The reasons for this paradox are not mysterious. The terrorist acts out of a sense of injustice perceived by the group to which he belongs, hence he is a hero to the entire group, which may be as small as an anarchist cell or as large as an entire tribe, nation, religion, class or other societal grouping. In the period following the end of World War II, the anti-colonial struggle in Africa and Asia and later the anti-oligarchic struggle in Latin America often relied on tactics condemned as terrorist by those unsympathetic to the aims of the struggle and applauded by those in solidarity with the struggle, whether directly engaged in it or cheering it on from the sidelines. The controversy raging around the film The Battle of Algiers, with its scenes of bombs exploding in crowded cafes, is emblematic of that era.

With the end of colonialism -- albeit not neocolonialism -- and of "wars of liberation" -- albeit without bringing a full measure of freedom to those who waged them -- terrorism has lost much of its luster and now elicits virtually universal condemnation, at least in legal terms. And yet, a comprehensive definition still eludes the world community.

THE SEARCH FOR DEFINITIONS

In his post-September 11 speech to the General Assembly, Sir Jeremy Greenstock, the British Ambassador to the United Nations, said "What looks, smells and kills like terrorism is terrorism." As this is not exactly a legally serviceable definition, diplomats and international lawyers have until recently solved the definitional problem by writing conventions outlawing terrorist acts without ever mentioning the word "terrorism." The official website entitled "UN Conventions on Terrorism" (2) lists eight United Nations conventions and two protocols enacted between 1963 and 1991, dealing with such diverse offences as hijacking, attacks on diplomatic agents and other internationally protected persons, hostage taking, theft of nuclear material and unlawful acts against maritime navigation and fixed platforms located on the continental shelf. It requires no complex process of reasoning to realize that any of these prohibited acts can occur within or without the, context of terrorism. The taking of a hostage for the p urpose of obtaining the liberation of a political prisoner fits the definition of a terrorist act. The same crime committed solely for the payment of ransom does not. The hijacking of the four planes on September 11 was a megaterrorist act. It is questionable, however, whether the hijacking of a plane bound for Florida to enable the hijacker to land in Cuba fits the general view of terrorism.

The last two conventions mentioned on the UN website finally do use the buzzword "terrorism," reflecting the progression from the crime without a name to the crime everyone fears. These are the International Convention for the Suppression of Terrorist Bombings (1997) and the International Convention for the Suppression of the Financing of Terrorism (1999). (3)

The former still has no definition, but the latter indirectly defines terrorism as "any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act."

So there we finally have an attempt at an international definition: Terrorism has two principal characteristics: (1) It is intended to inflict death or seriously bodily harm upon civilians or other persons (presumably military personnel) not taking part in hostilities and (2) its purpose is to intimidate a population or persuade a government or international organization to adopt a certain policy. The second of these two conditions is well stated, but the first is clearly inadequate. A plane can be hijacked or a hostage taken without necessarily intending to kill or seriously injure anyone, as can blacking out an electricity grid or a cybernetwork, yet such acts can be the work of terrorists.

The wording of the first clause also leaves open the question whether terrorism can be committed by states or only by non-state actors. This question, more than any other, has so far prevented the United Nations from agreeing on the text of a comprehensive convention on terrorism, including an agreed definition.

On 17 December 1996 the UN General Assembly adopted without a vote, i.e., without dissent, Resolution 51/210, "Measures to Eliminate International Terrorism." The resolution "strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed" (4) and goes on to reiterate "that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them." (5) In other words, no more "good" or "justified" terrorism.

Resolution 51/210 then calls on all States to adopt certain specific measures to combat terrorism, including consultation and investigation to prevent terrorist attacks on public facilities, cooperation in the detection and marking of explosives, finding means to prevent terrorism aimed at electronic or wire communications, investigating the abuse of charitable and social organizations for terrorist purposes, developing legal assistance procedures aimed at preventing terrorist acts and taking steps to counteract the financing of terrorists and terrorist organizations.

In addition, Res. 51/210 establishes an Ad Hoc Committee to elaborate international conventions for the suppression of terrorist bombings and the suppression of nuclear terrorism "and thereafter to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism" (6)

The terrorist bombing convention came into force on May 23, 2001. The nuclear terrorism convention is still under discussion in the Ad Hoc Committee. The mandate to develop a comprehensive legal framework of conventions has taken the form of work on a single draft comprehensive convention on international terrorism. However, at the sixth session of the Committee, held at UN Headquarters January 28 to February 1, 2002, no agreement was reached and the Committee recommended that the Sixth (Legal) Committee of the United Nations "consider establishing a working group, preferably to be convened from 14 to 18 October 2002, to continue, as a matter of urgency, the elaboration of a draft comprehensive convention on international terrorism." (7)

A look at the difficulty experienced by the Ad Hoc Committee in forging a consensus takes us directly to today's headlines. The main sticking point seems to be Article 18 of the draft, dealing with exclusions from the scope of the convention. The text circulated by Richard Rowe of Australia, the Coordinator of the last session, contained the following two paragraphs:

18(2) The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.

18(3) The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The 52 member states of the Organization of the Islamic Conference proposed alternative versions of these paragraphs. In 18(2) they would substitute "the parties" for "armed forces" and insert "including in situations of foreign occupation" after "armed conflict." In 18(3), they would substitute "in conformity with international law" for "governed by other rules of international law." (8) The effect of the alternative version of 18(2) would be to exempt Hamas, Islamic Jihad, Al-Aqsa, Tanzim and Hizbollah from the reach of the convention, provided they were recognized as "parties." Their activities would still be subject to humanitarian law, but only to the extent that humanitarian law (9) was recognized as applying to them in their capacity as non-state actors, which is a gray area in contemporary law. At any rate, other provisions of the draft convention, if adopted in the Rowe version, could result in Palestinians being judged by harsher standards than those applicable under humanitarian law or ordinary cri minal law.

Conversely, the Islamic Conference version of 18(3) would have the effect of subjecting members of the Israel Defense Forces to the provisions of the terrorism convention for acts not in conformity with international law. Under the Rowe version they would be judged only "by other rules of international law," which, might be less severe. For that matter, under the Rowe version, military forces of any State "in the exercise of their official duties" could never be treated as terrorists, leaving open the question whether terrorist acts committed by such forces could ever be said to be in the exercise of their official duties. The Official Record of the sixth session of the Ad Hoc Committee does not contain information as to which countries supported which versions of Art. 18, but it is reasonable to suppose that the United States supports the Rowe version.

STATE TERRORISM VS. NON-STATE TERRORISM

If you go to the recently created terrorism website of the Council of Foreign Relations, (10) you will see that, while there is no ironclad definition of terrorism, some useful attempts have been made to coin one. The State Department defines terrorism as "premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience." From Paul Pillar, a former deputy chief of the CIA's Counterterrorism Center, we learn that there are four key elements in terrorism: It is premeditated, political, aimed at civilians and "carried out by subnational groups -- not by the army of any country." One can only wonder whether the researchers at CFR have been listening to their President lately. Is there an operational difference between terrorists and terrorist-harboring states which, according to the President, deserve the same fate as the terrorists themselves? And what about the "axis of evil" states which must be dealt wi th because they may make weapons of mass destruction available to terrorists? Complicity with terrorism is an offence under Art. 4(2) of the Draft Comprehensive Convention as well as under several of the existing conventions. The Draft Convention also speaks in the preamble of "acts of international terrorism, including those which are committed or supported by States, directly or indirectly." Why then the emphasis on subnational groups in the two above-quoted definitions and the reluctance to allow for the treatment of members of armed forces as terrorists?

The answer seems to lie in what has come to be called the unilaterism of the current administration in Washington; this might more accurately be called its schizophrenia. An international criminal court may be a good idea, so long as it never touches an American; weapons of mass destruction are the ultimate evil in the wrong hands but instruments of peace and justice in our own and those of our friends; we promote the rule of law throughout the world, but we do not need to be a part of it because we find treaties confining.

This takes us back to the Draft Convention. One of the more interesting suggestions made at the sixth meeting came from Mexico, which proposed the addition of the following language: "This Convention does not address, nor can it be interpreted as addressing, in any way the issue of the legality of the use or threat of use of nuclear weapons by States." To understand this proposal, one has to realize that Mexico, along with six other states members of the New Agenda Coalition -- Brazil, Egypt, Ireland, New Zealand, South Africa and Sweden -- has been in the forefront since 1998 of a movement to remind the nuclear weapon states of their obligation under the Nonproliferation Treaty and the 1996 decision of the International Court of Justice to proceed in good faith with the abolition of their nuclear arsenals. This obligation was solemnly affirmed by all nuclear weapon states, including the United States, in terms of an "unequivocal undertaking to accomplish the total elimination of their nuclear arsenals," at t he conclusion of the NPT Review Conference on May 20, 2000. What Mexico was saying in its proposed amendment to the Draft Convention was, "If this is adopted with an exemption for action by armed forces, it cannot be interpreted to legitimize the threat or use of nuclear weapons; the possibility of calling such threat or use a terrorist act must be kept open." Indeed, the preparation of contingency plans to launch nuclear weapons against certain named countries -- China, Russia, Libya, Iran, Iraq, North Korea and Syria -- suggests the possibility of terrorism on a scale far wider to anything yet seen in the annals of terrorism. Learning to "live with the bomb" has now been elevated to an icon of U.S. security policy, to the dismay of the rest of the world, including the allies of the United States in the "coalition against terror." Thus terrorism has spawned, at least potentially, the most atrocious form of counter terrorism imaginable.

WAR AS COUNTER-TERRORISM

But it is not only the new nuclear posture of the United States which raises agonizing moral, political and legal questions. It is also the policy of responding to terrorism with a policy of conventional war, if one can speak of massive bombing without swallowing hard on the word "conventional."

Does a terrorist act justify full scale war as a response? It is doubtful that, prior to the events of September 11, many international lawyers would have answered this question in the affirmative. But the enormity and brutality of those events have led facts to muddy the clarity of abstract principles, as is not infrequently the case in the interplay between law and reality. Nevertheless, it is important not to lose sight of the principles involved, lest the force of law suffer a mortal wound from the law of force. Ambassador to the United Nations Jeanne Kirkpatrick once famously said "International law is not a mutual suicide pact." To which it is necessary to reply with another commonplace saying: "Hard cases make bad law."

Bad law was made by President Bush when he characterized 9/11 as an act of war. In a metaphorical sense he was right; in a legal sense he was treading on dangerous ground. He was certainly not within the parameters of the United States criminal code, which, in order to distinguish an "act of war" from terrorism, defines it as:

Any act occurring in the course of:

(A) a declared war;

(B) armed conflict, whether or not war has been declared, between two or more nations; or

(C) armed conflict between military forces of any origin. (11)

Bad law was again made by the President when he announced that any country which "harbors" terrorists would suffer the fate of terrorists. There can be no doubt that 9/11 was a crime against humanity of enormous proportions whose perpetrators must be punished. In a properly functioning world order, whose outlines are clearly sketched albeit inadequately implemented, the perpetrators would be brought to justice before the nascent International Criminal Court or, pending its imminent establishment, before an ad hoc international tribunal on the model of the Yugoslav and Rwandan tribunals or those being discussed for East Timor and Sierra Leone. (12) In such a world order, punishment would also be meted out to nations which encourage or facilitate acts of terrorism.

But war, in a world rife with weapons of mass destruction, is serious business. The consequences of the U.S. anti-terrorist doctrine are already alarmingly evident in places like the Middle East and South Asia, where Israel threatens, and to some extent has already waged, war against Palestine (which is not yet even a state) and India threatens war against Pakistan if terrorism is not halted. A similar phenomenon manifests itself in the eagerness of many countries to follow the lead of the United States in enacting wartime emergency measures, which violate constitutional and international human rights norms.

Equally worrisome is the general acceptance of the "just war" theory by the public and the media. A New York Times editorial, "Terrorism's Other Battlefields," while advising caution in carrying the war against terrorism beyond the borders of Afghanistan, blandly states that President Bush "rightly warned governments around the world that offering sanctuary to international terrorists could expose their countries to American military action." (13) A host of moral, political and legal problems is contained in these few words, which represent the conventional wisdom of the moment, e.g.:

By what right? Not the Charter of the United Nations, Article 51 of which limits the right to use armed force to situations of self-defense "if an armed attack occurs" and only "until the Security Council has taken measures necessary to maintain international peace and security." In customary international law, the right of self-defense is further limited to circumstances where "the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." (14)

What does "offering sanctuary", or "harboring", in the words of the President, mean? For several years, Emmanuel "Toto" Constant, a founder and Secretary General of FRAPH, a terrorist paramilitary group guilty of torture, rape and other heinous human rights violations committed in Haiti, has been living in the United States. Extradition requests from the Haitian government have been ignored, as has a final deportation order from the Immigration and Naturalization Service. As of this writing (March 29, 2002), Constant is still living in Queens, New York. If Haiti had the means, would it be justified in launching a military attack on the United States? (15)

What is an "international terrorist" in this context? Is it only one planning a terrorist attack on the United States from another country, or also one of the tens, perhaps hundreds, of thousands engaged in crossborder attacks against civilians anywhere in the world? And what of "American military action" even if not sanctioned by the United Nations nor approved by U.S. allies in the anti-terrorist coalition? What happened to "The United States cannot nor will not be the world's policeman?"

Hard cases make not only bad law, they also make for bad and dangerous policies.

IUS AD BELLUM: THE SECURITY COUNCIL TO THE RESCUE?

In the wake of 9/11, the Security Council adopted two Resolutions, No. 1368 and No. 1373. The first condemns "in the strongest terms the horrifying terrorist attacks," recognizes "the inherent right of individual and collective self-defence in accordance with the Charter," calls on all states to "bring to justice the perpetrators, organizers and sponsors" of the attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable." It is by no means clear that this constitutes the authorization required by the Charter for the war on Afghanistan, much less the extension of the war to other terrorist-harboring states, although it has been so interpreted by the United States and its principal allies.

Resolution 1373 is a different matter. It sets out, in considerable detail --three single-spaced pages--a series of non-military steps designed to fight terrorism by cutting off the flow of funds and weapons to terrorists, increasing international cooperation in intelligence and law enforcement and controlling the movement of suspected terrorists across national borders. While the implementation of these aims may lead to abuses, they are certainly commendable in principle and should serve as a guide to counter-terrorism without plunging the world into war without end.

One curious aspect of 1373 is that it is worded as a command issued to the world at large by the fifteen ambassadors who make up the Security Council at any one time, including the five permanent ones. The operative words are "The Security Council decides that all states shall (16) prevent and suppress (a) the financing of terrorist acts..." Then come ten other specific measures which "all states shall" take, followed by seven more which all states are, in the more traditional language of the Security Council, called upon to take. Thus one thing has changed after September 11, namely that we now have the Security Council as supreme lawgiver of the world; this pursuant to a resolution drafted and sponsored by a United States administration not known, before or after September 11, for its enthusiasm for the United Nations.

In fact, a good deal has already been done by many countries in carrying out the mandate of 1373. The Resolution also created a special committee chaired by Sir Jeremy Greenstock, to monitor its implementation. (17) It remains to be seen how the Security Council proposes to deal with states which fail to do what the Council has decided they shall do.

"UNLAWFUL COMBATANTS" AND "MILITARY COMMISSIONS"

While the legality of the war against Afghanistan and of possible future wars against Iraq and other countries has produced relatively little in the way of disciplined discussion, the status of the prisoners taken in Afghanistan has generated a good deal.

Thanks to enterprising journalism and bad public relations, the pictures of the hooded, manacled and shackled prisoners arriving at Guantanamo, and news about their drugged state during the long trip from Afghanistan, provoked a veritable firestorm of criticism from around the world, including most of the partners of the United States in the "coalition against terror." The first reaction from the United States was that the prisoners were "unlawful combatants" and were therefore not entitled to the protection of the Geneva Conventions. In a statement characteristic of the cavalier attitude of the Bush Administration toward international law, Secretary of Defense Rumsfeld announced that "Unlawful combatants do not have any rights under the Geneva Convention. We have indicated that we do plan to, for the most part, treat them in a manner reasonably consistent with the Geneva Conventions, to the extent they are appropriate [emphasis added].

The term "unlawful combatants" is not a part of the Geneva Conventions. It derives from the case of the eight Nazi saboteurs who landed in Florida and on Long Island in June 1942 and who were quickly apprehended and then tried by a military commission appointed by President Roosevelt. The Supreme Court, in affirming the jurisdiction of the military commission in the Quirin case, said that, as persons who had entered the country "for the commission of hostile acts involving destruction of life or property" and had discarded their military uniforms upon entry, they had "the status of unlawful combatants punishable as such by military commission." (18)

But the prisoners taken by the United States and its allies during the Afghan war fall into at least two entirely different categories, one being the soldiers of the Taliban armed forces and the other the volunteers of Al-Qaeda, captured in Afghanistan. A third category, and the only one fitting the description of the defendants in Quirin, would have been the 19 hijackers who went to their suicidal deaths on September 11. Their alleged co-conspirators found in the United States also fall into this category, but so far only one, Zacarias Moussaoui, has been charged and he, curiously, is being tried in a regular federal court. (19)

The notion that the Geneva Conventions do not apply to Taliban prisoners never made any sense. Indeed, Secretary of State Colin Powell, remembering his days as Chief of Staff and looking forward to situations where such an illogical precedent might be used against American soldiers, urged President Bush to reconsider. His efforts were crowned with success: on February 7, the President announced that the Taliban prisoners, but not the Al-Qaeda prisoners, would be entitled to all the protections of the Geneva Conventions. To say the least, the reasoning behind this decision was still tortured: the Conventions would be applied, said the President, because Afghanistan was a party to them, but the Taliban prisoners were not prisoners of war, because the Taliban regime was never recognized by the United States. (20)

As for the Al-Qaeda prisoners, their status is more ambiguous. What is not ambiguous is that, under Article 5 of the Third Geneva Convention, any person captured in the course of a belligerent action is entitled to the protection of the Convention until his status has been determined "by a competent tribunal" and that the President of the United States cannot appoint himself to fill that role. It is also unambiguous that, whether the Conventions apply or not, "everyone", and that means every last terrorist or suspected terrorist, is entitled not to be subjected to cruel, inhuman or degrading treatment or punishment, under the International Covenant on Civil and Political Rights, to which both Afghanistan and the United States are parties. In this connection, it is noteworthy that while, under the glare of public opinion, the conditions of the Guantanamo prisoners have become, if not humane, at least less inhumane, observers for Physicians for Human Rights have charged that, of some 3500 prisoners held in Afgh anistan, many have already died and many more are at risk of dying due to enormous overcrowding and "grossly inadequate food and medical care." (21)

On February 25, 2002, the Center for Constitutional Rights addressed a "request for precautionary measures" -- the equivalent of a claim for a preliminary injunction in domestic law -- to the Inter-American Commission for Human Rights, asking it to compel the United States to comply with Article 5 of the Third Geneva Convention and to refer the question of the status of the Guantanamo prisoners to a competent tribunal. On March 12, the Commission sent a four page memorandum to the United States Ambassador to the Organization of American States, with the following opening sentence:

After careful deliberation on this request, the Commission decided ... to adopt precautionary measures, according to which we ask your Excellency's government to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.

The United States has thirty days from March 12 to "provide the Commission with information concerning compliance with these measures." In its detailed reasons for issuing this request to the United States, the Commission stated that "under the OAS Charter, the Commission has ruled that OAS member states are subject to an international legal obligation to comply with a request for such measures." The position of the United States is that it has never considered the decisions of the Inter-American Commission as binding. So much for the rule of law.

It remains to be seen, in any case, whether membership in or association with AI-Qaeda is equivalent per se to an intent to destroy American lives or property. It may emerge that many of the Arabs, Pakistanis, Uzbeks, Chechens, Chinese and others who joined AI-Qaeda did so for the main or sole purpose of defending the Taliban against its internal opponents and did not receive terrorist training in Osama bin Laden's camps. A full trial of John Walker Lindh would presumably have shed some light on this.

The Bush Administration has also incurred severe criticism from at home and abroad for the rules of procedure proposed by Presidential order for the military commissions. This author, a member of the American armed forces at the end of World War II, was assigned to a unit charged with separating "real Nazis" from mere collaborators among German prisoners of war in the United States and remembers well the difficulties inherent in that task. Today, no one wants to see an O.J. Simpson trial for each of thousands of A1-Qaeda prisoners, but fundamental norms are just that; they are intransgressible prescriptions for countries that consider themselves civilized, whatever that much abused term may mean.

In this respect, the President has had to backtrack from his original announcement. The death penalty can no longer be imposed by a two-thirds vote and the right to civilian counsel of defendant's choice has been restored, at least in principle (that is, provided the defendant can pay for civilian counsel, or find one to work for nothing). But the President's authority to designate a person a terrorist subject to trial by military commission still stands; the rules of evidence are still skewed in favor of the prosecution; the right of appeal is still limited to a three member panel of military lawyers; a defendant still has no say about the composition of the jury and Congress still has no say about any of these rules. (22)

Worst of all, Secretary Rumsfeld and William J. Haynes II, the Pentagon's top lawyer, have already announced that even defendants acquitted after trial may be held for the duration of the war, which many regard as a war without end. (23)

What is particularly alarming about these Kangaroo Court rules is the reasons used to justify them. Haynes called the Guantanamo prisoners "singularly uncooperative," (24) presumably in contrast to your run of the mill criminal defendants, who are known for their cooperation with prosecutors. President Bush, when faced with criticism of his military commissions, has been known to remind us that "these are killers." Perhaps someone should remind him that in American courts even serial killers are entitled to all the protections of the constitution. One hears in these off-the-cuff remarks disturbing echoes of "these are communists, these are subversives, these are, mind you, UNAMERICANS!"

The American Bar Association, in a resolution overwhelmingly approved by its House of Delegates on February 5, has urged that these military commissions be used only in limited circumstances and under established legal and constitutional rules. Among the ABA's recommendations is that the commissions operate in accordance with Articles 14 and 15 of the International Covenant on Civil and Political Rights, which set out in some detail, for international observance, the contents of what in the Anglo-American system is called "due process of law." (25)

Even in emergency situations, even when dealing with individuals who would not hesitate to use the most brutal methods to kill their perceived enemies, including those who may sit in judgement on them, basic due process must be observed. in the words of Evan Davis, President of the New York City Bar Association, "We want to bring these terrorists to justice with justice." That is what America has preached to dictators invoking the same excuses for their derogation of fundamental norms in "states of siege." That is what America must practice today, lest it set a precedent by which past and future dictators will be excused for their transgressions against justice and human rights. (26)

THE QUESTION OF ROOT CAUSES

We know some things about the root causes of terrorism, but not a great deal. There has been much "iffy" speculation since 9/11: If we had not abandoned Afghanistan after the Soviet retreat, if we had not favored India over Pakistan in Kashmir or Israel over the Palestinians, if we had done more to relieve poverty in the third world and had not stationed U.S. troops in Saudi Arabia or maintained ten years of broad-based sanctions against Iraq, 9/11 might not have happened. Maybe yes, maybe no. The more sensible approach is to pursue a just and decent foreign policy for its own sake and not merely as a way of preventing terrorism which, on the historical record so far, can never be completely prevented. The worst thing to do would be to put aside all the problems, which have long cried out for solutions, until "terrorism has been rooted out." The environment, poverty, racism, gender inequality, nuclear weapons, the question of the self determination of peoples, will have to be addressed, terrorism or no. None of this, obviously, can be achieved through law alone, but neither can it be achieved without law. In this respect, the attitude of the current administration toward treaties, indeed its disdain for the whole structure of international law, leaves much to be desired.

The distinguished Finnish international lawyer Martti Koskenniemi has entitled his latest book, on the rise and fall of international law, The Gentle Civilizer of Nations, (27) a phrase taken from George Keunan. Never in modem times has the world been in greater need of this gentle civilizer.

A FINAL THOUGHT

The President, to his credit, has taken pains to distinguish the war on terrorism from Samuel Huntington's "clash of civilizations." Nevertheless, the massive roundup of Arabs, Arab-Americans and even non-Arab Muslims, the castigation of unindicted prisoners as "killers," the dispatch of American military advisers to primarily Muslim countries, have in them elements of an attack, not by the Muslim world on the West but by the West on the Muslim world. In this sense it is uncomfortably reminiscent of a long and shameful period in history when the Christian world saw itself forging a community of civilized nations entitled to enslave and dominate barbarians and infidels. "By the 1530s", Harvard government professor Richard Tuck tells us, "the notion of natural slavery had become a commonplace among humanist Aristotelians" and he quotes Agostino Nifo, "the most famous humanist Aristotelian of all" as proclaiming that "The wealth which can be acquired by war consists of barbarians and their goods." And who were t hese barbarians, for Nifo? "Ethiopians and their neighbors, and the Arabs." (28)

None of this is to deny the horror of the acts recently perpetrated by some Muslims against their version of barbarians and infidels nor the need for precautions against future acts of possibly even greater horror. But is there some eerie similarity between the humanist Christianity of the 16th century and the liberal West of the 21st, circling the wagons around NATO and sallying forth against today's barbarians, under the leadership of the United States of America? Think on it.

ENDNOTES

(1.) Ha'aretz, November 18, 2001.

(2.) http://untreaty.un.org/English/Terrorism.asp. The site contains the text, the status and a summary of each document.

(3.) As of the spring 2002, the United States had ratified all but the last two conventions. On December 5, 2001, the Senate gave advice and consent to them as well, but ratification awaited the passage of implementing legislation.

(4.) A/RES/51/210, Art. 1.

(5.) The choice of the verb "reiterates" refers back to somewhat milder language to the same effect contained in an earlier United Nations Document, "Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism."

(6.) A/RES/51/210, Art. 9.

(7.) General Assembly Official Records, Fifty-Seventh Session, Supplement No. 37 (A/56/37), par. 20.

(8.) Ibid: Annex IV.

(9.) Humanitarian law is that branch of the law of war concerned with ius in hello, the set of rules governing what is and is not permissible in the conduct of hostilities. It is distinguished from ius ad bellum, which governs the legitimacy of engaging in hostilities in the first place.

(10.) www.terrorismanswers.com

(11.) 18 USC 2331(4).

(12.) In the spring 2002 Newsletter of the International Organizations Interest Group of the American Society of International Law, Professor Michael Scharf of the New England School of Law suggests that the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia could be enlarged to encompass trials of the 9/11 terrorists.

(13.) New York Times, January 9, 2002.

(14.) The Caroline Incident, 29 British and Foreign State Papers 1129, 1139. Cf. The CorfuChannel Case, 1949, I.C.J. Reports 4.

(15.) See letter of December 11, 2000 to Attorney General Janet Reno and Secretary Madeleine Albright from a number of human rights organizations, http://www.hrw.org/press/2000/12/constant1211.html.

(16.) Emphasis supplied.

(17.) The country reports submitted to the Committee, including that of the United States, are available at www.un.org/Docs/sc/committees/1373. Critiques of some of the actions taken by governments can be found at www.hrw.org.

(18.) Ex parte Quirin, 317 U.S. 1, 35.

(19.) Richard Reid, the "shoe bomber" charged with attempting to blow up a plane en route to the United States, also comes close to the Quirin facts, but he, as well, will be tried in federal court.

(20.) Katherine Q. Seelye, "In Shift, Bush Says Geneva Rules Fit Taliban Captives but not Qaeda Members," New York Times, February 8, 2002. Other reports of the February 7 announcement ascribe the decision to deny prisoner of war status to the A1-Qaeda prisoners to their failure to meet the criteria for such status enunciated in the Geneva Conventions.

(21.) Jennifer Leaning and John Heffernan, "Forgotten Prisoners of War," Op-Ed., New York Times, February 2, 2002.

(22.) Cf. William Safire, "Military Tribunals Modified," New York Times, March 21, 2002.

(23.) Katherine Q. Seelye, "Pentagon Says Acquittals May Not Free Detainees," New York Times, March 22, 2002.

(24.) Ibid.

(25.) For a report on the ABA Resolution and other articles on this subject see www.law.com. keyword "military tribunals."

(26.) Cf. William Safire, "Seizing Dictatorial Power," New York Times, November 15, 2001 and "Kangaroo Courts," New York Times, November 26, 2001.

(27.) Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2001).

(28.) Richard Tuck, The Rights of War and Peace (Oxford: Oxford University Press, 1999), p. 42.

Peter Weiss is Vice President, Center for Constitutional Rights, New York City
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Author:Weiss, Peter Ulrich
Publication:Arab Studies Quarterly (ASQ)
Geographic Code:00WOR
Date:Mar 22, 2002
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