If there is any silver lining to the black cloud over New York, it can only come from a new commitment to global criminal justice. This system alone offers a principled means for punishing evil on a scale that amounts to a crime against humanity.
We expect hot-blooded "retaliation" rubber-stamped by NATO and legally justified by reference to the primitive "right"of a state unilaterally to use force in self defense. There will be no burden on the US to prove more than suspicion of guilt, and no questioning of the presidential proposition that a state is as "guilty" as the terrorists it harbors. This is incorrect in law (unless those doing the harboring know of their plans) and affords no moral mandate for killing its innocent and oppressed citizens. Two wrongs, in law as in logic, cannot make a right.
There is a better way, although thanks in part to US opposition, the machinery is not yet in place. It involves the international community identifying a class of crime which is "against humanity" precisely because the fact that fellow humans can conceive and commit it diminishes us all. As defined by the Rome treaty for an international criminal court, it includes a systematic attack directed against a civilian population involving acts of multiple murder.
The treaty lays down mechanisms for bringing perpetrators to justice, if not in their own country then in an international criminal court. Formidable opponents of international criminal justice include the Pentagon, and the Jesse Helms faction of the US Republican party, obsessed with the notion that US sovereignty would be degraded if an American were ever indicted as a war criminal. Their latest wheeze has been to promote the American Service Members Protection Act, designed to sabotage the court by withdrawing US cooperation and permitting the president to use force to free any American ever "captured" by the Hague prosecutors.
The message of Tuesday's carnage -- that we need much more international cooperation to ensure that perpetrators have no place to hide -- argues for the abandonment of this irresponsible initiative, and may help rally US support to get the court up and running next year. In the meantime, the US and its allies must abide by existing international law. On the precedent set by NATO's action in Kosovo, this permits the use of force against a sovereign state in order to stop or to punish commission of crimes against humanity.
The definition of a "crime against humanity" is wide enough to cover atrocities by a terrorist group organized on the scale of that led by Osama bin Laden. But many countries still insist that it applies only to the acts of states and not of terrorists, however well organized and politically motivated. This is a sentimental hangover from the days when one person's terrorist was another's freedom-fighter and can no longer be justified: all belligerent groups, whether or not attached to a state, should be subject to the laws of war.
When Britain's parliament meets, the prime minister should declare a new UK legal position: namely that terrorism on Tuesday's scale will henceforth be treated as a crime against humanity. Given that this permits the use of force against any sovereign state bearing responsibility for such a crime, what preconditions and limitations does international law impose on the US and its allies?
After the NATO bombing of Kosovo, there was general agreement that any lawful use of force against a sovereign state to stop crimes against humanity or to punish their perpetrators must be constrained by a number of safeguards. These include:
-- The prior support of the security council, or failing this of a majority of its permanent members;
-- the guilt of the targeted state or its agents must be established by clear and objective proof;
-- the armed response must comply with international law, be proportionate to the legitimate objectives of the mission and have a reasonable prospect of securing them.
These are the minimum requirements for any US response, which should be characterized and prosecuted as an international crime, not as a war. That means the US should first persuade the security council, not NATO, of the justice of counter- attacking any "guilty" state. If it accuses bin Laden, it must obey the legal requirements by demanding his extradition to face trial before seeking to kill him (and others) by air strikes. In the next few days, the US will be tempted to take the law into its own hands. Long term, however, the US safety will depend upon its joining the common cause of deterring crimes against humanity through an effective system of international criminal justice.
Geoffrey Robertson is a leading British lawyer and author of Crimes Against Humanity -- The Struggle for Global Justice.
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