the world waits to see how the U.S. will respond to the largest single act of terrorism in history, fearing that the wrath of a superpower scorned will unleash the next hell. But there's a gathering sense that simple vengeance is the least effective way of extracting justice for the death of thousands in the World Trade Center. Not to mention the fact that it would, in all likelihood, violate international law.
Much of such law, it turns out, was written to deal with situations in which one state attacks another, and modern terrorism is rarely so formal and official. Even the attempt by the U.S., Canada and other members of the North Atlantic Treaty Organization to invoke NATO article 5, is, says University of Illinois law professor Francis Boyle, "completely bogus."
That part of the document states, "The parties agree that an armed attack against one or more of them... shall be considered an attack against them all."
Says Boyle, "It's meant to deal with an armed attack by the Soviet Union or by a Soviet client state. Well, we don't have these any more."
But there are avenues of international law that don't assume that 2001 is the same as 1941. There is, for example, the United Nations charter, which allows a country to take defensive measures whether the aggression has come from a government housed in a legislature building or a shadowy terrorist leader who makes his home in a different cave or hut every night.
"For the UN, it doesn't matter whether it's a state actor or a non-state actor that's obstructing international peace and security," says David Bederman, a professor of law at Emory University in Georgia. "When the U.S. has better evidence and can lay this attack at the doorstep of a certain organization or a set of people or set of conspirators, it can seek some action at the Security Council. I would not rule that out."
But professor Craig Scott, an international law specialist at Osgoode, has a caveat about that one, too. It would be possible to obtain United Nations approval for use of force against an "actively harbouring state" (especially where there are training camps), he says. But the threshold for the more general response of "self-defence" is higher. That's only allowed when there has been armed attack by a state, says Scott, which means the U.S. would have to go to the UN Security Council to see what it could get the other 14 members to agree to.
Perhaps the best way to deal with the perpetrators who remain alive is one that was used surprisingly successfully to deal with those who blew up Pan Am flight 103 over Lockerbie, Scotland, in 1988.
The UN empanelled three Scottish judges to sit in the Hague and hear the evidence against the two Libyan accused. One was convicted, one acquitted. "I think it shows there's room for imagination and flexibility, that fair trials can be offered," Bederman says. "I didn't hear that much anger from the Arab world or from Libya that this was an unfair proceeding."
But it took years of diplomacy to organize that trial. Jurisdictional questions were finally solved through a legal fiction: a few square metres of the Netherlands were deemed to be part of Scotland for the purposes of the trial, and a panel of Scottish judges stepped onto the dais.
The two war crimes tribunals currently sitting in the same Dutch city have the authority to deal only with war crimes in ex-Yugoslavia and Rwanda. Attempts to create a permanent International Criminal Court to deal with genocide, war crimes and international terrorism have been stymied by U.S. opposition.
If there's a time when we could use an international court, it's now.
But Bederman says he has a sense that the U.S. realizes it can't deal with last week's events on its own. "In this challenge, the U.S. has reached the limits of its power. There's no way the U.S. could respond to this alone."
What about U.S. public opinion, I ask , which is demanding quick, rough justice for the perps? It may be easier for Bush to go down the road of international legality than it would have been for Bill Clinton, Bederman figures. "George Bush, partly because of the mantle of his daddy, George One, could probably withstand public criticism. He talks tough, and people assume he is tough. Politics is perverse at times, and it may be a very good thing that we've got George Bush in office."
Another moderating factor might be Canada. With the U.S. public thirsty for vengeance, Canada might be a "key restraining influence" on the U.S., says Bill Graham, the downtown Toronto Liberal MP who chairs the House of Commons foreign affairs committee.
"To deal with terrorism you have to do more than deal with a few isolated terrorists. You have to deal with the phenomenon of terrorism, which is bred out of desperation, poverty, misery, disappointment and unresolved conflicts. Those are the things we have to focus on."