A Trial to End All Terrorism: How America Could have Won the War on Terrorism Before it Even Began, With the Trial of Only One Man
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Presentation at the 3rd Annual Law Student Conference held at Windsor Law. Full paper here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1526872
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A Trial to End All Terrorism: How America Could have Won the War on Terrorism Before it Even Began, With the Trial of Only One Man
- 1. A Trial to End All Terrorism How America Could have Won the War onTerrorism Before it Even Began, With the Trial of Only One Man http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1526872 The Windsor Review of Legal and Social Issues (WRLSI) 3rd Annual Law Student Conference March 18-19, 2010 Omar Ha-Redeye AAS, BHA(Hons.), OCGC, CNMT, RT(N)(ARRT) J.D. Candidate, University of Western Ontario
- 6. 9/12/01 - Resolution 1368 9/28/01 - Resolution 1373 10/2/01 - Statement Lord Robertson 10/7/01 - Operation Enduring Freedom 11/14/01 - Resolution 1378 12/20/01 – Resolution 1386, Bonn Agreement
- 7. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27June 1986, [1986] ICJ Rep. 14.
- 8. Claims to self-defence must be supported by a) credible evidence of an armed attack, and b) the identity of the attacker (para. 57) Simply providing financial support or arms to a group does not in itself constitute an “armed attack” by international law. Must be sufficiently in control of contras to the point where they could be held responsible for their actions. (para. 116) Can violate international law through interference with the internal affairs of another country
- 9. 3. U.S. itself has taken the view that failing to report to the Security Council while invoking Article 51 contradicts any claims to self-defence (para. 235) “States do not have a right of ‘collective’ armed response to acts which do not constitute an ‘armed attack.’” (para. 211)
- 10. What is an “Armed Attack?” Definition of Aggression, UN GA Res. 3314, UN GA, 29th Sess. first use of armed force by a State allowing another State to use its territory irregulars by State carrying out aggression Security Council Comments by Canadian Delegation, Oct. 10, 1974 James Keeley(UofC); Link between Taliban and Al-Qa’ida
- 12. Adapted from M. CherifBassiouni, “Protection of Diplomats Under Islamic Law” (1980) 74 A.J.I.L. 609 at 613-614.
- 13. Bars to Prosecution Afghan Constitution No citizen of Afghanistan accused of a crime can be extradited to a foreign state unless according mutual agreement and international conventions that Afghanistan has joined. presumption of innocence, due process, and security of personal freedom But required to ensure territory was not used to act against the rights or create injury to other states (Corfu Channel, Trail Smelter Arbitration)
- 15. Taliban Response to 9-11 Unequivocally condemned attacks “Anyone who is responsible for this act, Osama [bin Ladin] or otherwise, we will not side with him.” – Taliban Minister of Information "We want to tell the American children that Afghanistan feels your pain. We hope the courts find justice.“ - Mullah Abdul Salam Zaeef Sept. 19, 2001 extradition offer International recognition Remove UN Sanctions
- 17. Policy Implications Geneva Conventions Protocol I to: criminalize grave breaches, prosecute, extradite, or provide assistance to other states with judicial investigations 1998 Arab Convention for the Suppression of Terrorism and the 1999 The Convention of the Organization of the Islamic Conference on Combating International Terrorism Article 2(a) exception for the purposes of self-determination
- 18. Reaching Consensus on Terrorism Just war theory does exists in shari’ah Forbids killing women, children, livestock Concept of binding consensus, ijma’a February 10, 2003 Rome Statute signed 1987 International Islamic Court of Justice (IICJ)
- 20. “Rand was convinced that the law, the rational law, could resolve all human conflict. There was... too much self-dealing and greed in our society. ‘Obstinate and unreasonable demands or resistance by any group can serve only to weaken the community as a whole. We are no longer in a society of stagnation and poverty… the deepest root of social decay lies in the realm of money.’ Greed, Rand explained, threatened peace at home and abroad because it prevented social justice and the fair distribution of society’s riches.” - William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand (Canada: University of Toronto Press, 2009) at 402.
Notas del editor
- http://www.democracynow.org/2010/3/15/noam_chomsky_on_obamas_foreign_policyAfghanistan is an interesting case. I mean, Afghanistan was sold here as a war to retaliate—a just—it’s always called a “just” war—to prevent terror, you know, retaliate against a terrorist attack...they could have tried to identify them, bring them to justice, you know, to trials—with fair trials and not torture, but fair trials, which would have probably sharply reduced, if maybe not—maybe even have ended Islamic terrorism. The lesson that we ought to learn, there was a split in American public opinion, very sharp split, very visible, in the early ’70s, between elite opinion—you know, newspapers, Harvard faculty and so on—on the one hand, and the general population, on the other. Not the antiwar movement, the general population. In elite opinion, articulate opinion—and that you can read, so it’s easy to document—the most extreme condemnation of the war was that it was a mistake which proved to be too costly. OK, that’s about as far as you can go. Among the public, about 70 percent, in polls, said it’s not a mistake, it’s fundamentally wrong and immoral. OK?
- In light ofSenator Kenny’s revelations that Canada cannot achieve its goals in Afghanistan,3 that themission will cost over $18.14 billion ($1,500 per household),4 and with recent allegations in theHouse of complicity in torture,5 these legal questions form an important backdrop to the ongoingdialogue in Canada about the Afghan mission.
- “Article 5 is now fully invoked. So the United States of America has satisfied that part of the statement made on the 12th of September, but I’m not willing to speculate what else we might be doing...”Article 5The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .
- special forces unit Joint TaskForce 2 (JTF2) had been operational prior to an expose by the media on December 19, 2001.Canadian officials later revealed that JTF2 had killed 115 Taliban and Al-Qai’da fighters andcaptured 107 Taliban (not Al-Qa’ida) leaders, presumably before the Bonn Agreement andSecurity Council approval
- 57. One of the Court's chief difficulties in the present case has been thedetermination of the facts relevant to the dispute. First of all, there ismarked disagreement between the Parties not only on the interpretation ofthe facts, but even on the existence or nature of at least some of them.Secondly, the respondent State has not appeared during the present meritsphase of the proceedings, thus depriving the Court of the benefit of itscomplete and fully argued statement regarding the facts. The Court's taskwas therefore necessarily more difficult, and it has had to pay particularheed, as said above, to the proper application of Article 53 of its Statute.Thirdly, there is the secrecy in which some of the conduct attributed to oneor other of the Parties has been carried on. This makes it more difficult forthe Court not only to decide on the imputability of the facts, but also toestablish what are the facts. Sometimes there is no question, in the sensethat it does not appear to be disputed, that an act was done, but there areconflicting reports, or a lack of evidence, as to who did it. The problem isthen not the legal process of imputing the act to a particular State for thepurpose of establishing responsibility, but the prior process of tracingmaterial proof of the identity of the perpetrator. The occurrence of the actitself may however have been shrouded in secrecy. In the latter case. theCourt has had to endeavour first to establish what actually happened,before entering on the next stage of considering whether the act (if proven)was imputable to the State to which it has been attributed.115. The Court has taken the view (paragraph 110 above) that UnitedStates participation, even if preponderant or decisive, in the financing,organizing, training, supplying and equipping of the contras, the selectionof its military or paramilitary targets, and the planning of the whole of itsoperation, is still insufficient in itself, on the basis of the evidence in thepossession of the Court, for the purpose of attributing to the United Statesthe acts committed by the contras in the course of their military orparamilitary operations in Nicaragua. Al1 the forms of United Statesparticipation mentioned above, and even the general control by the respondentState over a force with a high degree of dependency on it, wouldnot in themselves mean, without further evidence, that the United Statesdirected or enforced the perpetration of the acts contrary to human rightsand humanitarian law alleged by the applicant State. Such acts could wellbe committed by members of the contras without the control of the UnitedStates. For this conduct to give rise to legal responsibility of the UnitedStates, it would in principle have to be proved that that State had effectivecontrol of the military or paramilitary operations in thecourse of which thealleged violations were committed.235. There is also an aspect of the conduct of the United States whichthe Court is entitled to take into account as indicative of the view of thatState on the question of the existence of an armed attack. At no time. up tothe present. has the United States Government addressed to the SecurityCouncil, in connection with the matters the subject of the present case. thereport which is required by Article 51 of the United Nations Charter inrespect of measures which a State believes itself bound to take when itexercises the right of individual or collective self-defence. The Court,whose decision has to be made on the basis of customary international law.has already observed that in the context of that law. the reporting obligationenshrined in Article 5 1 of the Charter of the United Nations doesnot exist. It does not therefore treat the absence of a report on the part ofthe United States as the breach of an undertaking forming part of thecustomary international law applicable to the present dispute. But theCourt isjustified in observing that this conduct of the United States hardlyconforms with the latter's avowed conviction that it was acting in thecontext of collective self-defence as consecrated by Article 51 of theCharter. This fact is al1 the more noteworthy because, in the Security Council, the United States has itself taken the view that failure to observethe requirement to make a report contradicted a State's claim to be actingon the basis of collective self-defence (SPV.2187).
- 1974 statement by the GeneralAssembly, and states that the first use of armed force by a State in contravention of the Charterconstitutes prima facie evidence of aggression.35 Acts of aggression also include a Stateallowing another State to use its territory to perpetrate aggression on a third state,36 and sendingof irregulars by a State to carry out aggression.37