Copyright 2001 Times Newspapers Limited

The Times (London)

November 7, 2001, Wednesday

SECTION: Features

LENGTH: 733 words

HEADLINE: A just conflict must be fought in court too

BYLINE: Geoffrey Robertson

BODY:

Making war, these days, also amounts to making law. Just as Nato's attack
on Serbia established a right of humanitarian intervention, so the war to
topple the Taleban will stand as a legal precedent -but for what universal
principle?
The US relied on its right to self-defence (Article 51 of the UN Charter)
as a warrant for bombing, initially (and justifiably) to destroy the
terrorist training camps. But self-defence is a primitive doctrine,
severely limited by its basis in a necessity which is "instant and
overwhelming": it cannot sensibly be asserted that invading Afghanistan is
necessary, in this sense, to protect America.
There is one principle of international law which would provide a
legitimate objective for the incursion on state sovereignty. It is the
human rights rule that requires international action to prevent and punish
"crimes against humanity". The September 11 atrocities, like the US Embassy
bombings in Kenya and Tanzania in 1998, precisely fit the definition, which
covers not only genocide and torture but "multiple acts of murder committed
as part of a systematic attack against a civilian population".
There can be no doubt that Osama bin Laden has consistently incited the
murder of Americans and has confessed to involvement in the 1998 bombings.
More importantly, he has been exposed not merely as a peripatetic gang
leader, but as a state actor: a crucial ally and agent of the Government of
Afghanistan. Thus the Taleban leaders should be similarly accused of aiding
and abetting his preparations for a genocidal jihad against Americans (and
anyone else who happens to get in the way).
These charges are as grave, and as well substantiated, as those against
Slobodan Milosevic and the evidence against the Taleban similarly demands
to be answered at a trial. Whether, when it is fleshed out and forensically
tested, it would create a certainty of guilt must be a matter for a court.
But which court?
The only "trial" conceivably on offer is before a US jury, with death by
lethal injection as the sentence upon conviction. However, the only
authority which can pronounce a verdict that will be widely accepted beyond
the US is not "12 angry men" in New York, but a panel of distinguished
jurists, some from Muslim countries, at an international criminal court.
There is just such a court in the planning stages, with its statute so far
ratified by 43 countries (including Britain, France and Russia). It will
come into existence when 60 nations ratify it -on present indications,
sometime next year.
The UN Security Council can be asked (it will certainly comply, if the
request comes from the United States) to establish an "ad hoc" tribunal
(like that for the former Yugoslavia and Rwanda) to judge those accused of
complicity in the crimes of September 11, or to bring the International
Criminal Court into being immediately, with a retrospective mandate to try
these charges first in its docket.
But justice, as others understand that word, is not America's objective.
Its leaders talk of "justice" when what is really meant is summary
execution: bin Laden's head is wanted "on a plate" and there is deep regret
at the missed opportunity to wipe out Mullah Omar by a rocket attack as his
car sped from Kabul. Quite apart from the short-sightedness of the CIA's
assassination plans, which will only create martyrs and lose the
intelligence benefits of interrogation, the murder of enemy leaders cannot
be a legitimate objective of any modern war. It was, admittedly,
Churchill's preferred fate for top Nazis, but Truman insisted on their
trial at Nuremberg because "undiscriminating executions or punishments
without definite findings of guilt, fairly arrived at, would not sit easily
on the American conscience or be remembered by our children with pride".
Tony Blair should remind the US President of those words when they meet
today. This will not be the last occasion on which the international
community, with Security Council backing, determines to overthrow a
sovereign government. But no such war can be accounted "just" unless those
who wage it are prepared to make good the justice of their cause not only
on the battlefield, but subsequently in a fair and impartial courtroom.
Geoffrey Robertson, QC, is the author of "Crimes Against Humanity -The
Struggle For Global Justice", published by Penguin.

LOAD-DATE: November 7, 2001

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