TERRORISM LAW & POLICY

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The war on Afghanistan drags on. Meanwhile, the Al-Qaeda leadership continues to hide in the caves, the Taliban wait for the enemy to land and fight man to man, Afghan civilians hit by misguided bombs nurse their wounds and bury the dead, and the unsure Islamic countries prepare for the holy month of mercy, the Ramadhan.

Americans, including my family, friends and colleagues, anxiously wait for the restoration of a normal life, here in Kansas and elsewhere. But the terror persists. Anthrax refuses to go away, and beautiful bridges in California go on alert. Suspended in the midst of this uncertainty, the question lingers: Will the war on Afghanistan reap any benefits?

I search for answers, first in the realm of law. My colleagues, reputed and very able, teaching at Yale, Virginia, Houston and other law schools, have already endorsed the war. They invoke the US Constitution, Congressional resolutions, Security Council resolutions, and the inherent right of self-defense to mount the war on Afghanistan. As I read their commentaries, the ruins of twin towers illuminate the force of their arguments.

And in international law classes this Fall, I say to my students that though the prophets may teach us to turn the other cheek, the human need for a just retribution shapes the law of war. And yet the legal texts summoned to justify the war fail to answer a simple question of fact: Will the war on Afghanistan reap any benefits?

I understand that the war on Afghanistan is constitutional. I understand what it means: It is an American war against terrorists and against the states that harbor them. But as a teacher of international law, I must test the validity of the argument in a global context. If each nation has the right to wage war against states harboring terrorists, international peace and security will be in extreme jeopardy.

Then, India will have the right to wage war against Pakistan: Israel against Syria, Lebanon and Iran; the United Kingdom against the supporters of the Irish Republican Army; Spain against the backers of the Basque independence; Russia against the patrons of Chechnya--and on and on.

These thoughts turn me toward Islam. I myself have argued that Jihad is lawful, under both Islamic and international law, to fight for self-determination and to resist oppression. But I don’t see much of jihad in the doings of Al-Qaeda, whose leadership is hiding in the caves while innocent Afghan civilians are being killed. But as bombs fall, I see no victory for the United States either. Each bomb hitting an Islamic country radicalizes more and more Muslims.

In down moments, I see no end to violence. If America wants to end terrorism, it will have to wage a long and bloody war. If the bombs continue to fall, the warriors in the caves of Afghanistan, in the suburbs of Cairo, and in the ghettos of Gaza will have more reasons to intensify their terror.

In moments of hope, I see the war ending. I read the Quran that states: “If the enemy is inclined to peace, make peace with them and put your trust in God.” I read the UN Charter highlighting the “scourge of war” and promising peace and security. I wonder if the UN General Assembly should consider the question: Will the war on Afghanistan reap any benefits?

November 5, 2001

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