USE LAW TO BEAT BIN LADEN
by Gregory H. Stanton

The terrorist mass murders of over 3000 civilians at the World Trade Center and 189 people, civilians and military, in the attack on the Pentagon violated scores of U.S. state and national laws against murder and hijacking. The terrorists also violated the moral laws of every religion, as well as customary international law. To treat their crimes as "acts of war" is to grant them dignity these criminal acts do not deserve. Our response, though we may refer to it metaphorically as "war", should be a police action under the U.N. Charter, not legally a war.

President Bush, like his father before him, has taken the first sure step toward using law to legitimize international action to defeat these criminals. The U.S. went to the U.N. Security Council and got a unanimous resolution "calling for international cooperation to bring to justice the perpetrators, organizers, and sponsors of the outrages of 11 September 2001."

Why should we expect that law would make any difference in defeating these adversaries? The terrorists and the states that support them, states like Afghanistan, Iraq and Sudan, have demonstrated nothing but contempt for international law. Why should we use international law in the coming struggle against them?

International law expresses the norms of the civilized world. Its rules for world public order thus stand in opposition to everything terrorism represents nihilism, death, and destruction. It also represents not just the values of Western nations, but also the values of all of the world¹s peoples. The prohibition on murder of civilians in the Geneva Conventions has been ratified by nearly every nation on earth (including Afghanistan, Iraq, and Sudan), and has achieved the status that international lawyers call "customary international law," law binding on all nations, even new ones and nations that have not ratified it. When the terrorists violated customary international law, they did more than violate U.S. law. They violated the collective law of the entire human race.

We thus stand on solid ground when we appeal to nations in the Muslim world to join with us in this struggle against terror. Islam is a religion of law. It is a religion that abhors murder. The Taliban and others who twist it into an instrument of hatred are no closer to the truth of Islam than the Crusaders were to the truth of Christianity. Those of us who know that these crimes were the acts of men, not judgments of God, share a faith in the same God who forbade murder, and who laid down the basic laws for life. Americans, like the people of Islam, are people of law. As we look for common ground, we should look to international law common to us all.

The organized terrorist group that committed these crimes specifically violated Optional Protocol II of 1977 to the Geneva Conventions, which prohibits violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; and acts of terrorism. Optional Protocol II Article 13(2), considered a restatement of customary international law, says, "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."

The terrorist attacks were also crimes against humanity, which the Charter of the Nuremberg Tribunal, another statement of customary international law, and the 1998 Rome Treaty of the International Criminal Court define as "any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; ... and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." The terrorists also violated the 1970 Hague and 1971 Montreal Anti-Hijacking Conventions, which obligate all states-parties to extradite hijackers¹ accomplices for trial. Afghanistan, Iraq, Sudan, and Pakistan are all parties to the Anti-Hijacking Conventions.

Law without compliance or enforcement is not real law. President Bush is right to plan measures to capture the perpetrators of these crimes. Force will certainly be necessary. He is also right to make no distinction between the perpetrators and those who aid and abet them, and those who are accessories by hiding and harboring them. The U.S. and our allies should put together teams to seek out and capture, or if capture is resisted, destroy them.

We should respond within the law. We should seek another U.N. Security Council Resolution using the crucial words "decides there is a threat to international peace and security" and "authorizes such police action as is necessary." By denoting our military response as a police action, as we did in Korea, it will be clearly legal under the U.N.Charter. Such a Security Council Resolution would pass unanimously. The law-abiding Muslim nations who are members of the United Nations will then have an important international legal reason to support our response. As members of the U.N., they will be so obligated.

When the co-conspirators are captured, they should be tried quickly and fairly. They could be tried where the crimes were committed in New York and Virginia. Another venue would be an International Terrorism Tribunal that could be established by treaty or U.N.Security Council Resolution. The advantage of an international tribunal is that it is likely to be seen as less biased than a national court. The crimes the terrorists committed are already crimes under international law, so a Terrorism Tribunal would not impose ex post facto law. (The soon to be established International Criminal Court (ICC) will have no jurisdiction over crimes committed before it is set up. These crimes show the need for the ICC.)

By siding with the law and with all people who support the law, we will immediately seize the high ground the terrorists have conceded to us by their crimes against humanity. The law is a mighty fortress that has protected us through millennia of human civilization. Its first stones were laid down, for Jews, Christians, and Muslims alike, four thousand years ago. For over two hundred years, it has been the foundation of American democracy. It is still the rock on which we should stand when our liberty is under attack.