The stark choice between revenge and justice

by Geoffrey Robertson    September 17, 2001

What spectacle awaits the world: an Afghanistan carpet—bombed from 15,000 feet, with a consequent refugee crisis and jihads galore, or Osama bin Laden sharing a cell in the Hague with Slobodan Milosevic? The choice between revenge and justice has never been more stark, or more difficult.

While media attention focuses on commanders in green lumber jackets planning a campaign of retaliation, the less telegenic logistics of international criminal justice have been overlooked. Yet this preferable alternative is partly in place and requires only an imaginative leap by the US Government to attach its military might to a movement it once unthinkingly opposed, but which now provides the most acceptable way forward.

The Security Council is empowered under Chapter VII of the UN Charter to declare last Tuesday’s atrocity to be a threat to world peace and to bring its perpetrators within the jurisdiction of the Hague Tribunal, which at present only punishes international crimes committed in former Yugoslavia and Rwanda. Last Tuesday’s atrocity should be declared not an act of war but a ‘crime against humanity’ since it precisely satisfies that definition — a systematic attack deliberately directed against a civilian population involving acts of multiple murder. Treating this terrorism as an international crime would give much needed legitimacy to the proportionate use of US force to bring the prime suspect to justice.

A special prosecutor can be appointed to head an international team of investigators to present evidence collected by the US and its allies to an existing panel of international judges (some from Muslim countries) at the Hague, under protocols which already guarantee fair trial. US military and economic power can legitimately be used against the Taliban to oblige the extradition of bin Laden and his lieutenants, and to access (if need be, by armed incursions) the camps and hideouts reasonably believed to yield evidence of his guilt.

Support for the US is at its zenith in the Security Council: even China, the most obsessive defender of state sovereignty, could hardly veto a resolution approving the use of force, if extradition demands fail, to arrest a suspect for trial by a court upon which it is represented. The Taliban initially agreed to surrender bin Laden for trial by an ‘Islamic court’ — it invites armed reprisals if it objects to a UN Tribunal which has judges from Islamic countries.

This would involve a US compromise as well — but one that would recognise that bin Laden could not be fairly tried by a New York jury, too emotionally involved in the crime. (In Britain it was always recognised that IRA defendants should not be put on trial in the cities they were accused of bombing). A reasoned judgment from international jurists is perceptually preferable to a monosyllabic jury verdict in these circumstances. There could be no objection to an American special prosecutor — a post-mayoral Rudy Guiliani, once the courtroom scourge of the mafia, would be an appropriate choice - or even Kenneth Starr.

The problem, which must not be underestimated in light of American political promises of a quick fix, is that the wheels of Hague Tribunal justice grind slowly. That is partly a result of the shortages of money and manpower, which US commitment can remedy. Advocates of an international justice solution must also confront the irony that its greatest opposition to date has come from the Pentagon and the Jesse Helms faction of the Republican Party, which have demonized the UN Treaty to establish an international criminal court. Hopefully their opposition to a development which offers some long term deterrent to terrorism will be muted once the ICC remit includes crimes against humanity committed by organised terrorist groups. But the ICC will not be up and running for another year — in the meantime, the option of having the Security Council refer the case of Tuesday’s crime to the Hague Tribunal is both available and capable of speedy implementation.

In the three years since the arrest in London of General Pinochet, advocates of an international criminal justice system for human rights abuses have learnt to think the unthinkable. Economic and military sanctions have delivered up Milosevic, some Srebrenica commanders, the authors of genocide in Rwanda, and the Lockerbie suspects. Trials are promised for Khymer Rouge commanders and for some of the killers of East Timor. Once last Tuesday’s outrage is recognised as a crime against humanity, the nature of the US response becomes clear. Its purpose must be to put the prime suspect in the dock, not in a mass grave.

Geoffrey Robertson QC is the author of "Crimes Against Humanity - the Struggle for Global Justice", published by Penguin Books. He has kindly given permission for Reportage to publish this article, which first appeared in The Times.