Striving to deter crimes against humanity

By Geoffrey Robertson

LONDON: If there is any silver lining to the grotesque black cloud over New York City, it can only come from a new commitment to global criminal justice. It is this system (and the Pentagon, ironically, tried to strangle it at birth) which 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 NATO and legally justified by reference to the primitive "right"of a state unilaterally to use force in self defense.

There will be no burden on the U.S. 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 harbor. This is incorrect in law (unless those who run the harboring 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 U.S. opposition the machinery is not yet in place. It involves the international community identifying a class of crime which is "against humanity" precisely because 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 deliberately directed against a civilian population involving acts of multiple murder -- an accurate description of Tuesday's kamikaze atrocities.

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 the Jesse Helms faction of the U.S. Republican party, obsessed with the notion that American sovereignty would be degraded if an American were ever indicted as a war criminal.

Their latest wheeze has been to promote in Congress the misnamed American Service Members Protection Act, designed to sabotage the court by withdrawing U.S. cooperation and permitting the president to use force to free any American ever "captured" by the Hague prosecutors.

The message of last 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 U.S. support to get the court up and running next year.

In the meantime, America 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 organized on the scale of that led by Osama bin Laden. But many countries, including Britain, still insist that it applies only to the acts of states and not of terrorists, however well organized and politically motivated.

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

The prime minister should declare a new UK legal position: namely that terrorism on Tuesday's scale will henceforth be treated as a crime against humanity. 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 U.S. and its allies?

After the NATO bombing of Kosovo, there was general agreement that any lawful use of force against a sovereign state to stop crimes against humanity or to punish their perpetrators must be constrained by a number of safeguards.

These include a) the prior support of the security council, or failing this of a majority of its permanent members; b) the guilt of the targeted state or its agents must be established by clear and objective proof; c) 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 American response to Tuesday's attack, which should be characterized and prosecuted as an international crime, not as a war.

That means America 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, America will be tempted to take the law into its own hands. In the long term, however, the safety of that great nation will depend upon its joining the common cause of deterring crimes against humanity through establishing an effective system of international criminal justice.

The writer is a leading British lawyer and author of Crimes Against Humanity - The Struggle for Global Justice published in the UK by Penguin Books.

The Guardian