The Canberra Times September 15, 2001

Two wrongs are not right By Geoffrey Robertson

IF THERE is any silver lining to the grotesque black cloud over New York, it can only come from a new commitment to global criminal justice. It is this system (which the Pentagon tried to strangle at birth) that alone offers a principled means for punishing evil on a scale that amounts to a crime against humanity.

We expect a hot-blooded “retaliation”, rubber-stamped by the North Atlantic Treaty Organisation and legally justified by reference to the primitive “right” of a state unilaterally to use force in self defence.

There will be no burden on the United States to prove more than a suspicion of guilt, and no questioning of the presidential proposition that a state is as “guilty” as the terrorists it happens to harbour.

This is incorrect in law (unless those who run the harbouring state 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 that 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 civilians involving multiple murders an accurate description of Tuesday’s attacks.

The treaty lays down detailed mechanisms for bringing perpetrators to justice, if not in their own country then at an international criminal court.

The most formidable opponent of international criminal justice has been the Pentagon, allied with parts 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 in Congress an Act designed to sabotage the court by withdrawing US cooperation and permitting the President to use force to free any American “captured” by The Hague’s prosecutors.

The message of Tuesday’s carnage that we need much more, not less, 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.

Meanwhile, 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 organised on the scale of that led by Osama bin Laden. But many countries, including Britain, still insist that the definition applies only to the acts of states and not of terrorists, however well organised and politically motivated.

This is a sentimental hangover from the days when one person’s terrorist was another’s freedom-fighter, and it can no longer be justified: all belligerent groups, whether or not attached to a state, should be subject to the laws of war.

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 safeguards must constrain any lawful use of force against a sovereign state to stop crimes against humanity or to punish their perpetrators. These include the prior support of the United Nations Security Council, or a majority of its permanent members; clear and objective proof of the guilt of the targeted state or its agents; and 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 to Tuesday’s attack, which should be characterised 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 requirement of proportionality by demanding his extradition to face trial before seeking to kill him (and many others) by air strikes.

In the next few days, the US will be tempted to take the law into its own hands.

In the long term, however, its safety will depend on its joining the common cause of deterring crimes against humanity through establishing an effective system of international criminal justice.

Guardian.

Geoffrey Robertson is a lawyer and the author of Crimes Against Humanity: The Struggle for Global Justice.

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