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Newsletter of the Lawyers’ Committee on Nuclear Policy
Fall 2001 Vol. 13, No.2

Past issues

Newsletter in pdf-format
(download Acrobat Reader)

A Rule-of-Law Response
by John Burroughs


Selected Articles :

September 11:
A Rule-of-Law Response
by John Burroughs
War: Metaphor into Reality
by Peter Weiss
Crime(s) of Terror: Developing Law and Legal Institutions
by Saul Mendlovitz

Reactions to September 11, 2001
UN Resolution re: September 11

Disarmament:
Disarmament Also Needs Coalitions
by Jim Wurst
Congress and the Fate of the ABM Treaty
by John Burroughs and Robert Boehm
Small Arms Conference
by Jim Wurst

Notable Books:
Losing Control - Global Security in the Twenty-First Century
by Janet Bloomfield
Lethal Arrogance: Human Fallibility and Dangerous Technologies
by Jackie Cabasso

Hiroshima Reflections:
Hearing the Hibakusha in Light of September 11
by Anabel Dwyer


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In peace, LCNP Staff

 



New York City is now in a state of shock and grief. There is no war fever. Perhaps New Yorkers will adopt the exemplary attitude of the peoples of Hiroshima and Nagasaki - "never again" rather than vengeance. Of course, New Yorkers, like the world, want planners and perpetrators of the atrocities brought to justice. The immediate questions are these: how can further attacks be prevented, and how can justice be done? Because the problem of terrorism is global in scope, a legitimate and therefore effective response must centrally involve the United Nations.

On September 12, the UN Security Council unanimously adopted a resolution in which it:

"Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable"
"regards [the attacks], like any act of international terrorism, as a threat to international peace and security"
"Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001 and to combat all forms of terrorism"

The Security Council thus set the stage for ordering the imposition of sanctions (Art. 41) or use of force (Art. 42) under Chapter VII of the UN Charter. Indeed, given its findings, it is now the obligation of the Security Council to take steps to restore international peace and security. It is doubtful that sanctions will be viewed as adequate to the task, because they have already been tried. In 1999 and 2000 the Security Council imposed a ban on air travel, a freeze on funds, and an arms embargo on the Taliban regime in Afghanistan for its failure to comply with resolutions requiring it to close down terrorist training camps and turn over Osama bin Laden and others to the United States or other appropriate country for trial in connection with the 1998 embassy bombings. The United States and Britain now say that the Al Qaeda network is also responsible for the September 11 attacks. On September 28, the Security Council adopted a wide-ranging resolution among other things requiring all states to suppress financing of terrorist operations and to "deny safe haven" to terrorists.

Self-defense?

The United States is now likely to proceed with military action on its own or in concert with selected other states, sidelining the Security Council, or merely calling upon it to ratify a course of action already underway. However, the September 12 resolution does not itself authorize military action, referring only to the Security Council’s "readiness to take all necessary steps" (emphasis added). In its preamble the resolution does recognize "the inherent right of individual or collective self-defence in accordance with the Charter". But the Article 51 right of self-defense against an "armed attack" traditionally has been understood to concern relations of states and in any event applies only "until the Security Council has taken measures necessary to maintain international peace and security". The September 28 resolution calls for all states to cooperate "to take action against perpetrators". Absent a clear Security Council statement of intent to authorize military operations, this should be understood to refer to police action in cooperating countries to bring such persons to justice.

The September 11 attacks and the 1998 embassy bombings were acts of mass terrorism, said to be carried out by non-state actors affiliated with a network hosted but not sponsored by the non-internationally recognized Taliban regime. The United States should stop employing the rhetoric of "war" and instead engage in genuine deliberations with other Security Council members on the appropriate response to this unprecedented situation. The United States and NATO did not seek Security Council authorization for the Kosovo war because a Russian veto was likely. Now, the Security Council will probably back all reasonable measures. It is not in the US interest to sideline the United Nations again, if the "age of terror" to which Bush referred in his September 20 speech is to be averted. A robust multilateralism will be required to suppress international terrorism and to combat its causes by promoting just political and economic orders in the Middle East and the world.

Constraints on military action

However it is characterized and no matter under what authority it is carried out, any military action must meet legal requirements including necessity, proportionality, and discrimination – or not be done at all. Necessity requires that the least violent course of action be taken to prevent further attacks and to bring planners and perpetrators to justice. Proportionality requires that military action not be excessive in relation to the initial attacks and to the action’s objectives. Discrimination requires that civilians not be attacked and that they not be disproportionately injured or killed by attacks on legitimate military targets. Military action must also not inflict unnecessary suffering, harm neutral nations, or cause widespread and severe damage to the environment. These requirements are imposed by international treaty and custom, set forth in US military manuals on the law of war, and recognized by the United States and the United Nations as binding law governing their conduct of military operations.

Of special importance is that, according to relief workers, millions of Afghanis already face starvation. Attacks that exacerbated this situation and caused mass starvation could not meet the requirements of proportionality and discrimination. Also important is that, as Pentagon sources confirm, desperately impoverished Afghanistan has hardly any targets of military significance. To meet the requirement of necessity, attacks must be reasonably aimed at achieving a concrete military advantage; they may not be carried out for the sake of revenge or a demonstration effect or any other nonmilitary reason. If there’s nothing to attack, don’t attack.

It should go without saying that use of nuclear weapons is barred by these requirements. But it needs saying, because on September 20 Bush stated the United States will use "every necessary weapon of war" and reportedly there is discussion in the Pentagon of a nuclear option. The United States has also given undertakings in connection with the Nonproliferation Treaty not to use nuclear weapons against non-nuclear armed states including Afghanistan. Finally, US military planners should bear in mind that any nuclear use, certainly under present circumstances, would cause the risk of a terrorist nuclear attack in the United States to skyrocket.

Indeed, the suddenly more real prospect of such an attack in the wake of September 11 should focus attention on the imperatives of securing and inventorying nuclear materials and warheads and strengthening the nonproliferation regime. As civil society groups and non-nuclear weapon states have been insisting for many years now, achievement of these objectives in turn requires the United States and other nuclear-armed states to comply with their disarmament obligation under the Nonproliferation Treaty. (see p. 5)

Prosecution of terrorists

Assuming that persons suspected of planning and perpetrating the September 11 attacks, or the embassy bombings or other terrorist incidents, are extradited or apprehended - a major assumption so far as Afghanistan is concerned - there are a raft of treaties and national statutes under which they could be tried, in the United States, other countries, or an international tribunal. Treaties requiring prosecution or extradition to which both the United States and Afghanistan are parties include the 1970 Hague convention on hijacking and the 1971 Montreal convention on unlawful acts against aircraft. Both treaties provide for resolution of disputes by arbitration and the International Court of Justice. International lawyers Francis Boyle and Ann Fagan Ginger, both members of the LCNP board, advocate resort to the ICJ instead of use of force.

To attract support and cooperation of countries in the Middle East, and to advance an international regime on suppression of terrorism, the best approach to trying suspects would be the establishment of an ad hoc tribunal, by the Security Council or interested states, and prosecution under a statute including crimes against humanity as defined in the Rome Statute, the treaty establishing the International Criminal Court. Ad hoc tribunals have been established for Rwanda and the former Yugoslavia. The ICC itself, currently opposed by the Bush administration, cannot be used for this purpose, because the Statute has not yet come into force, and when it does in the next year or two will only apply to crimes committed thereafter.

Under the Rome Statute, murder and other inhumane acts intentionally causing great suffering or serious injury, when committed as part of a widespread or systematic attack against any civilian population in furtherance of a state or organizational policy, constitute crimes against humanity. Thus acts committed by members of terrorist groups or networks found to have sufficient longevity and coherence to qualify as an organization could come under the definition.

John Burroughs is the Executive Director of LCNP.

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