Geoffrey Robertson: America is wrong to shoot first, then ask questions
about guilt later
'The $64,000 question is whether America is entitled to bring down the
Taliban government'
26 September 2001
"Infinite justice" made no sense as a brand name for an operation to attack
Afghanistan because human justice is both finite and fallible. More
importantly, it begged the question, which our leaders must urgently
address, of exactly what "justice" they propose to afford their prime
suspect. The saloon-bar poster ("Wanted: dead or alive") invites lynch law:
righteous anger requires that Osama bin Laden be treated according to
international law. That law, it must be acknowledged, justifies breaching
"state sovereignty" – the refuge of scoundrels like Pinochet and Milosevic –
when force is necessary in self-defence or to punish a crime against
humanity.

The International Court of Justice declared in 1949, in a ruling sought by
Britain when its ships in the Corfu Channel were attacked from Albania, that
every state has a duty to prevent its territory being used for unlawful
attacks on other states. In 1980, after the hostage taking at the US
embassy, the same court ruled that Iran was responsible for a failure in
"vigilance" and a toleration of terrorism. It follows that the right of
self-defence (preserved in Article 51 of the UN Charter) permits the US to
resort to force for the limited purpose of doing Afghanistan's duty, once
that state refuses to prosecute or extradite Mr bin Laden, and to close down
his camps.

But America's legal right is severely qualified: the military exercise must
have justice as its sole objective – by arresting terrorist suspects,
gathering evidence and destroying weapons and training camps. On no account
must it target civilians. The precedent which places the severest legal
limit on the US attack was established by its own protest against Britain's
sinking in 1837 of a US steamboat which was aiding rebels in Canada: both
governments agreed self defence must be based on a necessity which is
"instant, overwhelming, leaving no choice of means, and no moment for
deliberation".

A more modern and more permissive legal justification for an armed response
is provided by the emerging human rights rule that requires international
action to prevent and to punish "crimes against humanity". The black Tuesday
atrocities 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". It was to punish such crimes in
Kosovo that Nato breached Serbian sovereignty, and the same principles
should apply (this time, with Security Council backing) to any intervention
in Afghanistan. But this means the US must acknowledge that organised
terrorist groups (including those it has supported, like the Contras) as
well as states, are capable of committing such crimes.

Whatever basis America and its allies advance for their "war", the $64,000
question is whether they are entitled not only to hunt for Mr bin Laden but
to bring down the Taliban government. This wider purpose, signalled
yesterday by Tony Blair, only becomes lawful if Taliban forces attack a
Security Council approved mission to arrest Mr bin Laden. So long as that
US-led force confines itself to doing what the local government ought to do,
any attack upon it directed by that government entitles the allies to strike
back – to declare a "just war" and to overthrow the Taliban.

But this all depends upon whether, at this initial stage, the US and its
allies are preparing to breach Afghanistan's sovereignty with the legitimate
objective of bringing Mr bin Laden to trial in a court that can guarantee
him justice. It is this dimension which must now be honestly addressed,
because the plain fact is that a jury trial in New York, with a death
sentence upon conviction, will not provide a forum where justice can be seen
to be done. It may be doubted whether any American jury could put aside the
prejudice against the "prime suspect" created by its media and by its
leader's demands for his "head on a plate". The only "guilty" verdict which
can persuade the world of Mr bin Laden's guilt will be closely and carefully
reasoned, delivered by distinguished jurists, some from Muslim countries.

There is such a criminal court in session at The Hague, dealing fairly and
effectively with crimes against humanity committed in the former Yugoslavia
and Rwanda. The Security Council would undoubtedly agree to any US request
to extend its remit to try Mr bin Laden. The Hague Tribunal affords all
basic rights to defendants, in trials before three international judges and
appeals to a further five. It has developed reasonably fair procedures for
evaluating the kind of hearsay evidence which may be necessary to prove
terrorist conspiracies, and has protocols which protect the security of
electronic intercepts and other fruits of secret intelligence gathering.

The alternative is to construct a special Lockerbie-style tribunal, or even
to bring the International Criminal Court hurriedly into existence with a
retrospective mandate to deal with terrorist crimes against humanity. The
existence of such a court would obviate the problem President Bush now faces
from demands to produce the proof of Mr bin Laden's guilt: this is the
function of a prosecutor, who obtains his indictment – the warrant for
arrest and trial – after presenting prima facie evidence to a judge.

But the creation of the international criminal court has been opposed by the
Pentagon and right-wing Republicans, fearing it might one day indict an
American soldier. This self-indulgent isolationism may no longer prevail if
their nation comes to realise that punishing its enemies requires
international co-operation. After all, we owe the idea of international
criminal justice to President Truman, who insisted on the Nuremberg trials
against the opposition of Churchill (who wanted the Nazi leaders shot on
sight). He did so 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".

It needs Mr Blair to remind the President of how "the American conscience"
once cooled the British desire for revenge and created a court whose
judgment stands as a landmark in civilisation's fight against racially
motivated terror. Its legacy requires the Taliban government to extradite Mr
bin Laden – for the crimes of 1998 as much as 2001 – but only permits the
use of force if those who deploy it can promise him a fair trial. Without
that guarantee, "operation infinite justice" becomes the cry of the Red
Queen in Alice's Adventures in Wonderland: "sentence first – trial
[posthumously] later".

Geoffrey Robertson QC is the author of 'Crimes Against Humanity: the
struggle for global justice' (Penguin)

SOURCE:THE INDEPENDENT NEWSPAPER OF 26-09-01
       LONDON,UK.
With the very best of good wishes,
Musa Amadu Pembo
Glasgow,
Scotland
UK.
[log in to unmask]
May Allah,Subhana Wa Ta'Ala,guide us all to His Sirat Al-Mustaqim (Righteous
Path).May He protect us from the evils of this life and the hereafter.May
Allah,Subhana Wa Ta'Ala,grant us entrance to paradise .. Ameen


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