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War Crimes And Punishment: Trying Bin Laden By Ian Andrew Bell Nov. 22, 2001

VANCOUVER – Five days after the horrific attacks of September 11, US President George W. Bush announced that he wanted to receive Bin Laden “Dead Or Alive” in a grisly murmur that explicitly recalled the brutality of the American wild west [1]. This was again confirmed more recently by US Secretary of Defense Donald Rumsfeld, though he appeared to be speaking for himself and not on behalf of the nation, in a 60 Minutes interview [2]. Again the White House PR department cringes.

As the hunt goes on, through various channels the US has asserted its intent to hold Bin Laden accountable before a military court rather than within the American criminal justice system or in an international tribunal, if by some miracle he is caught alive. [3] As though he realizes what humiliation an appearance in any court would provide, Bin Laden has instructed his aides to kill him themselves if he is in jeopardy of being captured by the US. [2]

Regardless, the US and UK [4] are busily preparing cases to substantiate their allegations that Bin Laden is the culprit behind the September 11th bombings. American TV viewers have of course known this all along — after all, barely minutes after the attacks on September 11, what would soon become well-known photos of Osama Bin Laden began to hover over the shoulder of Peter Jennings and every other news anchor in the Western world.

But half a world away, many are worried about what in fact will happen once Bin Laden is caught — and it seems that America doesn’t have enough faith in her own criminal justice system to allow it to weigh the evidence and assert justice fairly. Most of the rhetoric seems to imply that it is a more fitting vengeance to see Osama’s pale, twisted body ravaged in a macabre street demonstration like that of his friend, Ayatollah Khomeini. [5]

There is little doubt that this is the form of closure that most Americans would like to see in beginning the healing process from September 11th. At this point the suspicions and gossip and the clear and consistent message from America’s President that their evil villain is in fact Osama Bin Laden is more than enough proof to make him the target of their hatred. This blood lust has grown so extreme that America’s tainted criminal justice system seems too soft for such a demon. His actual guilt or innocence is now an arbitrary concern.

That his incarceration in Federal prison would not be luxurious compared to his present lifestyle, presumably hopping through bitterly cold mountain caves with billions of dollars in weaponry bearing down on him, is an obvious fallacy.

That the agony of his subsequent appeals, his book publishing deal, the jailhouse interview with Geraldo, the Osama “Death Row Inmates” trading card from O-Pee-Chee [6], and all of the other signal noise associated with the other notables among America’s great nemeses would not bleed the soul of every patriotic American is an understatement.

On an even more chilling note, with his financial depth and notoriety, Bin Laden’s defense in the US Court System by the best attorneys available would be assured, which poses a disturbing notion. That he could be within the grasp of the US Government and yet slip through their fingers in a spectacular acquittal is an unconscionable thought to most Americans — who would be Bin Laden’s Mark Fuhrman?

As tends to be a very American strategy, rather than address the problem of a barren criminal justice system which has so clearly lost the confidence of those it is designed to protect, the US Leadership are electing to route around the problem. Simply grab the bad guy and, if you’re unfortunate enough that he survives, put him in the only place where you can be assured of vengeance — er…. justice: a Military Court. They would most assuredly tear him to shreds, and as a bonus, could order a firing squad to end him along with his lieutenants.

So can they do that?

Actually, there isn’t a lot of precedent here to guide what SHOULD happen to a defeated and captured suspected international terrorist such as Bin Laden. The US government has stopped just short of — but has cautiously been alluding to — Osama Bin Laden as a War Criminal. If this allegory is taken along its full course then the fate of Bin Laden and al Qaeda could become a hot issue of international law.

War Crimes have been addressed by International tribunals only four times in our history: After World War II for the Japanese and German leadership (in Tokyo and Nuremburg respectively), for Bosnian Serbs in the 1990s, and for Rwandan Hutus after they slaughtered more than 500,000 Tutsis over a four-month period in 1994.

The Nuremburg Trials were run by the so-called “International Military Tribunal”, which coincidentally was set-up by World War II’s victors: France, USSR, the USA, and Great Britain. [7] The focus of the trials were charges of Conspiracy, which were then uncharted waters for most courts of law (and which will now likely constitute the bulk of any case against Bin Laden). Nuremburg saw all 22 of its accused indicted (including Martin Borrman, who was never apprehended) and prosecuted.

More recently the International Criminal Tribunal for the former Yugoslavia (ICTY for short) [8] was set up by the UN Security Council — whose five permanent members are the UK, France, USA, Russia, and recently China (see a pattern?). This was a fairly standard operation to prosecute more than 100 Bosnian Serbs (incl. Slobodan Milosevic) who were involved in Serbian “Ethnic Cleansing” during that war.

Under this tribunal, British troops actually entered Bosnia to capture and arrest two previously indicted Serbs (one was killed and the other apprehended). This was the first time that foreign troops mandated by the UN have infiltrated a country to capture and arrest war criminals. Unfortunately, though, the ICTY trials have had very limited success, with only 10 of 78 indicted war criminals currently in custody.

The UN Security Council also set up the International Criminal Tribunal for Rwanda (ICTR) in 1994 under similar circumstances. In Rwanda, 21 of the two dozen men indicted have been seized. [9]

Outside of specific tribunals, the legality of grabbing a person from one country and shipping them to another to stand trial is more than a little bit hazy.

In any normal situation, governments resort to extradition treaties made between two countries. Of course, in this case no such treaty exists between the United States and Afghanistan [10], though Pakistan [11] does have treaties with both the US and UK. Regardless, this is no simple case of a drug smuggler or a run-of-the-mill murderer.

Some specific resolutions made by the UN have attempted to address this grander sort of crime.

According to the International Convention for the Suppression of Terrorist Bombings, [12] adopted by the General Assembly of the United Nations on 15 December 1997, “The offences referred to in [this] Convention are deemed to be extraditable offences between States Parties under existing extradition treaties, and under the Convention itself.” This seems to lead one to believe that states now have the right to prosecute terrorists as criminals who operate outside their borders.

But the text here specifically refers to “existing extradition treaties”. Beyond this, it is non-specific and does not bind Afghanistan to extradite Bin Laden (which would require them to have already taken him into legal custody), and even makes allowances for them placing him on trial themselves for bombings abroad.

To add to the confusion, the UN ratified in December 1973 a treaty called “Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity”. [13] This resolution allows states to try their own citizens for war crimes against humanity, wherever they are committed. Given that Bush himself refers to Bin Laden as a war criminal, perhaps Saudi Arabia would, by the letter of international law, have the right to punish its most famous dissident citizen.

International law seems to allow any country’s court to try another country’s citizen as a War Criminal, with some restrictions: A person cannot be extradited “to a country which cannot assure that any trial on such charges meets international standards for fairness and does not result in the imposition of the death penalty or other cruel, inhuman or degrading punishment.” [14] Once again, the key is extradition. Without extradition, the trial may go on without the presence of the accused, and the result may be the inconvenience of an indicted war criminal not being able to visit that particular country anymore.

In the wake of the September 11th Bombings, the UN itself has done very little, aside from “strong resolutions condemning acts of terrorism” [15] and the heartfelt condolences of Kofi Annan, to address these concerns. The lack of effective pre-existing resolutions contending with terrorism and its legal aftermath, the lack of an effective committee on terrorism within the UN, and the lack of an operative court of tribunal which could hold jurisdiction over any accused terrorists or war criminals has clearly left a vacuum.

The Bush administration, which would probably prefer for the UN to mind its own business anyway, has charged into this vacuum full-steam ahead, with guns blazing. According to Senator Bob Leahy, head of the US Senate Judiciary Committee, Bush’s order says that “it is acceptable to hold secret trials and summary executions, without the possibility of judicial review, at least when the defendant is a foreign national” [16].

Terrorism has become an American problem and, as such, it has very recently acquired a very American solution: massive and invasive military force. The desperate hunt for one man and his fledgling organization has resulted in the further destruction of a nation already battered by decades of sinister and brutal warfare.

The “New World Order” [17] envisioned by Bush (George Sr., that is) in a 1990 speech seems to be closer and closer to becoming reality with each and every bomb that strikes an Afghani hamlet suspected of housing members of the al Qaeda network. The new Emperor is another George Bush, and he appears to have taken this incident as his opportunity both to secure his own place in history as well as his nation’s place as the de facto superpower controlling the world. Somewhere in his coat-tails the UN has once again squandered an opportunity to serve as an effective policing agent on the international scene, further sparking questions as to its relevance in the New World.

To tie the war in Afghanistan to the hunt for terrorism is ludicrous. That the oppression of women by the Taliban is abhorrent to the Junior Bush administration while the atrocities of more favorable trading nations such as Indonesia and others is ignored portrays the true danger of justice being administered so arbitrarily.

This war, as well as its predecessor Operation Desert Storm, together underscore the need for a truly authoritative International organization — one that is not so easily swayed by the interests of a single nation, and one that is not so encumbered by its own bureaucracy as to be completely ineffective. But, alas, it is most likely too late for this chapter.

Our own confused behaviour through the twentieth century leaves us with a few questions:

– Is terrorism really just another form of warfare? – What separates a war hero from a war criminal? – Is warfare a domain that should be exclusively adjudicated before the eyes of the entire world?


“Returning hate for hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction.”

– Martin Luther King

[1] – [2] – [3] – [4] – [5] – [6] – [7] – [8] – [9] – [10] – [11] – [12] – [13] – [15] –”30 [14] – [16] – [17] –