IN THE wake of last week's horrific tragedy, much has been said about America's new "war" on terrorism. But war, in a legal sense, can only exist between sovereign states. The considerable military power at America's disposal will be of limited utility in the caves of Afghanistan, as any former Soviet officer who served there will argue. Moreover, we must remember that Osama bin Laden's network feeds on its paranoid interpretation of American "arrogance" in the Middle East, and thus, an American-led military response may actually assist bin Laden in his propaganda efforts. The Bush administration seems to recognize this problem and Secretary of State Colin Powell has done a commendable job in emphasizing that terrorism is a global problem requiring, at bottom, a global solution.
The best way to respond to terrorism is through the mechanisms of international law already in place to deal with this problem. While the United Nations has never been able to arrive at a definition of terrorism that all states can agree to - largely because of ongoing and sensitive disputes in the West Bank and Northern Ireland - adequate measures do exist to aid the United States in this campaign against the perpetrators of last week's attacks.
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In 1992, the United Nations Security Council passed Resolution 731 calling upon Libya to hand over the suspects wanted in connection with the bombing of Pan Am Flight 103 in Dec. 1988. This resolution not only presented a unanimous common front, but allowed for widespread sanctions against Libya if it did not comply. Moammar Gadhafi, the Libyan president, soon found it to be in his interest to comply, and the suspects were surrendered in 1995. The U.N. passed similar resolutions in 1985 against acts of piracy and hijacking in the air or high seas.
Additionally, international law has expanded rapidly to include non-state actors who commit international crimes. In 1994, the International Criminal Tribunal for Rwanda was established to hold private individuals accountable for acts of genocide. One of the important points to come from several cases adjudicated under the ICTR is that of "non-military command responsibility," which allows for civilian militias or organized gangs to be held to standards similar to that of a military chain of command. This has been an effective prosecutorial tactic in the Rwandan trials, where the perpetrators frequently held no official posts.
If the United States is serious about providing an international response to terrorism, it should immediately seek a U.N. resolution listing bin Laden and the al-Qaeda network as war criminals. What advantages would this bring?
First, it would provide for collective action against this organization and allow for sanctions and other punitive measures against states harboring these individuals. It can provide for coordinated action against bin Laden's financial interests and in information sharing.
Second, the operation against terrorism truly would become international and collective in scope and purpose, consistent with the mandates of the U.N. Charter. If the coalition signals too strong an American presence, it could play into the hands of the Taliban or other interests in the Middle East and Central Asia in their efforts to proselytize their worldview of a "hegemonic" West.
Third, if military force is needed, as it likely will be at some point, such action then will be taken in accordance with the U.N. charter and the rule of law. Finally, the U.N. could establish a war crimes tribunal which could investigate, prosecute and punish those responsible for criminal acts.
The United States and its foreign policy rests upon the rule of law, which separates us from those who use violence against us. We must not give in to understandable temptations to vengeance and militaristic retribution, but use the mechanisms of law to serve the interests of the global civil society we seek to guarantee. Those tools are already in place; what is needed is the will to use them.
(James Sofka is an assistant professor in the department of government and foreign affairs.)
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