Legal Aspects of the War on Terror

A frequent theme in the war against terrorism has been the reference to the US and her allies as the "civilized world". The rest of the world is then classified into two camps; firstly, those who, whilst not themselves part of the "civilized world", are, to quote Tony Blair's reference to the Saudis, "good and dependable friends of the civilized world". Then, to use the parlance of the Romans, the barbarians - the lawless "other" who want to destroy civilization.

Certainly one of the characteristics of the civilized world is the respect given to the rule of law. Though the real test for this society is not how it behaves in times of peace, but how it behaves in times of anger when the temptation to disregard its principles in favour of revenge is strongest.

The United Nations charter compels the United States to obtain a UN Security Council resolution before it can use international force legally. The charter imposes several conditions, with one key requirement being that an attempt at peaceful resolution has first been made. Article 2(3) reads: " All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered". Article 33 reads: "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice"

Is a matter of law that the US should have attempted to resolve this matter peacefully before resorting to the use of force.

There are at least 13 treaties in existence that deal with the various aspects of international terrorism, and provide opportunity for legal resolution. Amongst them, is the Montreal Sabotage Convention (1971), to which both Afghanistan and the United States are signatories. It criminalizes the destruction of civilian aircraft. There is also the Hague convention on hijacking (1970) to which the US and Afghanistan are also signatories. Even without the invocation of these treaties, peaceful solutions could have been found. The Taliban had, on at least three occasions following the September 11 attacks, offered to hand over Bin Laden if proof was shown. It is general international practice that proof is provided before the surrender of someone wanted on criminal charges. An observation of the Konrad Kalejs extradition process shows that even Australia follows this same principle of requiring some justification before extraditing an accused criminal.

Yet, instead of pursuing a peaceful resolution, the US congress passed the War Powers Resolution, giving George Bush a "blank cheque" to wage war on any country that the US arbitrarily determines as being a "terrorist state" or a "harbourer of terrorists".

In trying to cobble together a legal basis for this war, the US has invoked Article 51 of the UN Charter. This gives a state the right to repel an attack that is ongoing or imminent until the UN Security Council can take steps necessary to restore international peace and security. Yet, clearly what is happening today in Afghanistan is not self-defence. It's retribution. It's revenge. You can hear that clearly in the language of the political leadership.

This notion of using "self defence" as a legal pretext for widespread and continued military action against other nations is not new. Francis Boyle, Professor of International Law at the University of Illinois, has noted the first people to employ such an interpretation were the Nazis. During the Nuremberg Tribunal of 1946, the lawyers of the Nazi defendants took the position that they had reserved the right of self-defence under the Kellog-Briand Pact of 1928 (the precursor of the UN charter) and that they themselves determine self-defense. The Nazis argued that World War II, in its entirety, was fought in self-defence and no one had legal standing to disagree with their judgment. The Tribunal rejected the argument and ruled that self-defense can only be determined by reference to international law (which must be determined by a tribunal). No state has the right to make this determination by themselves.

This disregard for international law when it conflicts with domestic objectives has been a feature of US foreign policy for decades.

After US backed forces mined Nicaraguan harbours and engaged in a bloody campaign of terror, the World Court ruled, in 1986, that US activities in Nicaragua were criminal and that it "is under a duty immediately to cease and to refrain from such acts [of hostility]". The court also ruled that massive reparations should be paid to Nicaragua. The Reagan administration dismissed the ruling with contempt and simply declared that America does not recognize the authority of the World Court.

The Nicaraguans then went to the UN Security Council, who considered passing a resolution calling on all member-states to abide by international law. The US vetoed the resolution, thus becoming the only state on record that has been found guilty by the World Court for international terrorism, and has also vetoed a Security Council resolution calling on all states to abide by international law.

In the words of the 18th century Irish poet, Jonathon Swift, "laws are like cobwebs, which may catch small flies, but let wasps and hornets break through".

arch/ive/ief (2000 - 2005)