Should bin Laden's trial be int'l?

Myint Zan, School of Social and Economic Development, University of the South Pacific, Suva, Fiji

Unconfirmed reports indicated that the United States' most wanted man, Osama bin Laden, is near the besieged city of Kandahar, the Taliban's last strong hold.

What are some of the international legal issues that could arise in a possible "Osama trial"?

Under international law and as far as the principles of a state's exercise of jurisdiction is concerned, the U.S. has the right to try bin Laden in one its own courts or tribunals.

From the perspective of international law, a pertinent issue is whether the right or the jurisdiction to try the world's most wanted man belongs solely to the U.S.

Bin Laden's crimes have been cited as crimes against humanity, which should be subjected to "universal jurisdiction".

Should bin Laden be captured, the U.S. is extremely unlikely to "relinquish" the sole right to act as his judge, jury and executioner. Still, the issue of a forum or court which would try him on "universal jurisdiction" is worth exploring.

Some have suggested that an international court (not a U.S. one) should try him. These suggestions have been made not only to negate the possible "bias" that a U.S. trial could entail. They have also been made on the symbolic need to send a powerful message that the heinous acts of Sept. 11 are not only crimes against the U.S. but also crimes against the international community itself.

One way to "internationalize" the (putative) "trial of bin Laden" is for the United Nations to establish an ad hoc tribunal to try not only bin Laden but, say, members of the al-Qaeda network. In 1993 and 1994 the United Nations Security Council established the ad hoc tribunals to try violations of international humanitarian laws in the former Yugoslavia and in Rwanda.

For such a tribunal to operate on an international level the UN Security Council would have to establish it. It needs the affirmative vote of the United States. But it first needs concerted action from members of the Security Council to bring such an agenda into its deliberations.

Presently it is quite clear that the UN has too much on its (Afghanistan) "plate". The high priority areas for the UN are the formation of an UN-sponsored interim administration in Afghanistan and to rebuild the war-ravaged country under UN auspices -- not to establish another UN tribunal.

Were he to be captured alive, it seems very unlikely that bin Laden would face "international justice". Instead, it is certain that he would face "U.S. justice" in that he would be tried before a U.S. court or tribunal.

Bin Laden has stated that even if he were to be "eliminated" (one might add whether judicially or extra-judicially) there will be other "bin Ladens".

If other and future bin Ladens, or Pol Pots or Milosevics, were to wreak havoc on segments of humanity, only a few might be brought before the Permanent International Criminal Court (PICC) to answer for their crimes.

In July 1998, after years of negotiation, over 130 countries adopted an international treaty that would establish a PICC.

The Court will come into existence three months after the 60th instrument of ratification is deposited with the Secretary- General of the United Nations. The Sept. 11 has apparently hastened the ratifications including that of the United States' major partner in the "war on terrorism", the United Kingdom.

There are already 46 ratifications to the treaty. The PICC could be operational some time in 2002. Therefore the phrases "universal jurisdiction " and "international justice" would perhaps sound less hollow and "academic" than they hitherto have been.