That those who wrought the carnage of Sept. 11 would be "brought to justice" is America's promise to its people and the world. But where, and how?
These are the crucial legal questions preoccupying the Bush administration as it debates whether to try Osama bin Laden's alleged terrorists on the American soil they have bloodied or on international terrain at a tribunal like that in The Hague.
The world's two most cogent voices on war crimes -- bonded by mutual respect and disagreement -- will stage the first major debate on bringing al-Qaeda to justice at a forum in New York on Wednesday.
PHOTO: AP
In advance, both men put their views to The Observer last week.
One is Justice Richard Goldstone, the first chief prosecutor in The Hague, long-time confidant of Nelson Mandela, who crafted the constitution of the new South Africa and is likely to be president of the forthcoming International Criminal Court. He favors international trials of al-Qaeda.
The other is David Schaeffer, President Bill Clinton's former ambassador-at-large for war crimes, one of Goldstone's staunch allies at The Hague, who made enforcing humanitarian law an urgent item on the US agenda. He argues for trying al-Qaeda where the wound is deepest, where the stench from the mass grave in downtown Manhattan grows stronger every day.
Both men agree this is no idle academic debate. As Schaeffer says: "The fundamental element in the campaign against terrorism is to bring the terrorists to justice. The justice pillar is the glue that holds the coalition together; if you abandon it, the coalition and the campaign crumble."
Goldstone is the man most famously identified with the movement toward the international enforcement of law on crimes against humanity. "Obviously," he says, "the United States has every right and the jurisdiction to put bin Laden and his colleagues on trial in New York. But it's not as simple as that."
Goldstone's point of departure is: "The more efficient your criminal justice system, the lower your crime rate will be. The more inefficient your criminal justice system, your crime rate is going to go up. That's as true of al-Qaeda as it is of Al Capone. If we have an international justice system, the crime rate goes down."
Goldstone believes the potential prosecution of the al-Qaeda network -- maybe even of bin Laden himself -- is an opportunity for the next surge toward globalized justice.
"We live in a globalized village of a world," he says, "and face globalized terrorism. It was unheard of for this sort of terrorism to hit the North American continent, and that is why one needs international justice and why national sovereignty has to bend."
More than 1,000 al-Qaeda suspects have been detained around the world, and the very nature of al-Qaeda and the Sept. 11 attacks, says Goldstone, demand international trials.
He advocates the establishment of a specifically tasked tribunal akin to those trying war criminals from Rwanda and the Balkans -- neither of which would exist, he says, without America's urging.
David Schaeffer, now at the US Institute of Peace, favors trials in the US like that concluded three weeks ago, blocks from Ground Zero, when the bombers of the US embassies in Tanzania and Kenya were sentenced.
There are basic points of jurisdiction and principle, he says. "Most victims were from here and their families are here. We're strong on the rights of victims these days, and they have the right to see justice done here."
Schaeffer points to the string of al-Qaeda attacks -- the 1993 World Trade Center bomb, the 1998 embassy bombs, and attacks on the USS Cole and Khobar towers -- for which US indictments have already been issued.
International co-operation on terrorism militates toward domestic trials, says Schaeffer.
And successive anti-terrorism conventions have aimed to "make national systems responsible for prosecuting terrorists in your national courts, or extradite them to countries that will prosecute them."
The US has "revised our own domestic laws to enable us to prosecute these crimes. We have put al-Qaeda on trial, successfully, and in the process got a lot of information about al-Qaeda."
But movement in the situation could lead to a shift in the arrangements. "I think it's healthy to have discussion about what the other options are, and it may be that we need to turn to other options in the future -- ad hoc tribunals or military courts. It depends on how the military campaign unfolds, who is apprehended and where."
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