TERRORISM LAW & POLICY

SEARCH TERRORISM LAWS, REPORTS, HEARINGS, BRIEFINGS, PAPERS...

Mark A. Drumbl
University of Arkansas-Little Rock, Bowen School of Law
Visiting Professor
Washington & Lee University School of Law

© 2001 Mark A. Drumbl; not to be reproduced or cited without the express permission of the author

This Article explores international and criminal law issues involved in U.S. and transnational responses to the tragic events of September 11, 2001. The thesis is raised that the terrorist violence properly is categorized as a criminal or outlaw act, not an armed attack or act of war. This problematizes the legality of the military strikes initiated by U.S. and British forces on October 7, 2001. On a more prospective note, state practice and international organization response to the strikes suggest: (1) a transformation in the treatment by international law of the use of lethal force when undertaken for humanitarian or security purposes (in this regard, building upon the precedent set by NATO's intervention in Kosovo); (2) an expansion of state responsibility for individual criminals who may not be effectively controlled by the state; and (3) diminution of the role of the Security Council and United Nations on matters of global peace and security. However, categorizing the violence as criminal does not end the inquiry. Actually, this only begins the process of reflection. Under what methods and procedures, and in which fora, should alleged terrorists or conspirators be tried? This Article suggests that trials will have to be carefully designed in order to deter future terrorist violence. This may necessitate the inclusion of culturally pluralist approaches. The need for this cultural contextualism may clash with the increasing hegemony of Western criminal trials as the mechanism to implement putatively "universal" criminal justice.

Introduction

In March 2001, I taught an intensive international human rights law course to the Afghan "bar in exile." This course was organized by the International Law Project and held at the Afghan University in Peshawar, Pakistan. (2) The Afghan University is not a fixed "brick and mortar" place, but rather an association of scholars seeking to sustain some semblance of an academic environment. By way of example, our course was taught in a restaurant lobby. (3) The students included lawyers, judges, secondary school graduates, and politicians living outside Afghanistan. Most left out of opposition to the Taliban regime in Afghanistan; others out of an inability to live in Afghanistan owing to famine, drought, armed conflict, and a general sense of hopelessness. Some were sympathetic to the Taliban, most antipathetic.

Several months following my experiences with the Afghan refugees, terrorists allegedly based in Afghanistan have been implicated in the September 11, 2001 "attacks" (4) on the World Trade Center and the Pentagon. Also implicated is the Taliban government itself. On both a personal as well as intellectual level, I have found my experiences valuable in making some sense of this horrific violence. Then, as I write in early October, Afghanistan itself is subject to the use of force (in the form of military "strikes" (5)) as a result of this terrorist violence. Furthermore, anonymous mailings of anthrax in envelopes have been reported in the U.S., Canada, Kenya, Brazil, the U.K. and France. It is unclear whether these mailings are linked to those allegedly responsible for the September 11 attack. However, if this link is established, then the distribution of anthrax would arguably constitute another terrorist attack.

The heinousness of the September 11 attack is self-evident. But why it happened and what to do about it are far from self-evident. This Article posits that serious thought should be given to the manner in which accused terrorists and conspirators would be tried, including those presently apprehended in the U.S. Many of us assume that the obvious way to try these accused is in a U.S. common law or Western civil law process before juries (in the case of the U.S.) or judges. That is in fact the position of the U.S. Department of Justice, whose senior officials will "make sure that any prosecutions for the Sept. 11 terrorist attacks be brought in U.S. federal court, instead of an international or military tribunal. 'We're going to do it the plain old-fashioned way,' sa[id] a senior federal prosecutor [...]." (6) However, this "plain old-fashioned way" may not be a particularly effective way to build a widespread, deep-rooted social norm that condemns terrorism in the places where disaffected individuals may be inspired to join terrorist movements. Nor may such an approach resonate within communities - such as what I learned of the Afghan refugee community - even when those communities are opposed to the Taliban, terrorism, or violent extremism undertaken in the name of religious fervor. Accordingly, there may be cause to revisit the confidence and implacability of the Department of Justice.

The ongoing bombardment of Afghanistan also tinctures any attempt to bring the terrorists or the Taliban to book for their crimes. This Article suggests that these military strikes may infringe international law. It is difficult to build a legitimate social norm against terrorism in communities in which the military methods used to combat terrorism are themselves seen as illegal, particularly when there is a credible basis to assert that illegality.

Suddenly, and understandably, details about the Taliban have become popularized. The Taliban, composed mostly of Sunni Muslims from the Pushtun ethnic group of southern Afghanistan, (7) now controls approximately 90% of Afghanistan. The remainder of the country is controlled by the Northern Alliance, a loose confederation of anti-Taliban militia whose leader was assassinated a few days before the September 11 attacks. Afghanistan is in abject economic crisis. The Taliban Ministry of Vice and Virtue imposes strict constraints on the personal behavior of Afghans. All forms of entertainment, including television, kite-flying, and music, are outlawed. (8)

Peshawar, the location where the Afghan refugees established the Afghan University, is a border city near the Khyber Pass that links Afghanistan to Pakistan. It was founded over 2,000 years ago. Peshawar has been called the "capital of the Afghan diaspora." (9) While I was teaching the course, there were up to 2 million Afghan refugees living in Pakistan under very difficult circumstances. (10) The number has since increased. These refugees put tremendous strains on Pakistan, which lacks the infrastructure and resources to cope with this influx. (11) Today, Peshawar contains the "intrigue of Casablanca. Men who were once very important are making big plans to be important again in an imagined post-Taliban Afghanistan." (12)

The Afghan University is the only institution in the area that provides higher education for women. (13) The University opened in April 1999 and has about 2,700 students, about one-quarter of whom are women. (14) The Taliban bans women and girls from school in Afghanistan. Eighty-seven percent of Afghan women are illiterate, (15) considerably above the national illiteracy rate of seventy percent. (16) Our course was unique insofar as both women and men were taught together in one classroom, although they sat separately. Although the Afghan University operates outside of Afghanistan, the Taliban does exercise some (albeit limited) control over the curriculum. This creates tension insofar as "[t]he refugees who dislike the Taliban have conceived of the university as a place to educate people who could lend their expertise and leadership to the rebuilding of Afghanistan in a post-Taliban world." (17)

The teaching was divided into a morning and afternoon program. In the morning, instructors gave lectures. In the afternoon, discussion was opened to the students and the course adopted the type of format found in seminars in U.S. law schools. The discussions were heated yet instructive. What I observed and heard can be distilled to five important points. These influence my approach to the legal and military issues regarding what to do about the terrorist violence.

First, there is gulf - not an unbridgeable gulf, but a gulf nonetheless - between purportedly universal human rights law and Islamic constructions of law. Under Islamic law - the shari'a (or siyar for external relations of the Muslim world) - there is no clear distinction between law, morality, religion, belief, and rights. The attainment of God's will is the only goal that the law should or can attain. (18)Historically, "for Muslim jurists, law and religion formed one composite unit where there could be no public constitutional law other than the Will of God as revealed through the Prophet." (19) State and religion, too, "are one." (20) The laws that are to be administered are pre-existing, and are set forth and have their sources in: (1) the Qur'an; and (2) the interpretations thereof found in the sunna. This stands in contrast with the positivist world of Western law, particularly public international law, in which the legitimacy of law largely derives from individual (or state) consent to contractual arrangements (e.g. treaties, agreements, constitutions, social contracts, statutes, customs) regardless of their content. To be sure, the relatively recent emergence of individual human rights as a normative goal does add a natural law element to public international law. (21) However, the meaning of individual human rights in a society that largely values collective submission (not individual autonomy) remains scrambled at best. (22) For example, the shari'a does not provide for an enumeration of individual rights. (23) In fact, as Abdullahi Ahmed An-Na'im notes, there are "obvious fundamental contradictions between Shari'a principles and international human rights norms [...]." (24)

How should individual human rights be integrated into a society that views individualism as irrelevant or, even, antithetical to the overarching communal good? How is the notion that legitimacy derives from legal, consensual procedure reconciled with the notion that legitimacy lies in a search for righteousness in the proclamations of God and the manifestations of faith? (25) David Westbrook's conclusion resonated in my experiences with Afghan jurists: "For the Islamic scholar, public international law is foreign. As a consequence, the authority of public international law over Muslims, its legal quality, is inherently problematic." (26)

Second, in a theocracy such as Afghanistan, individuals can do little, if anything, to unseat the government or direct its policies. The government is not a proxy for the people. The Taliban's theocracy is particularly violent, and is a particularly unusual and unrepresentative form of Islam. The Taliban is largely a product of a culture of war and, as a result, its edicts emerge more proximately from this culture of war than the Islamic religion in which they are cloaked. (27) But, all the same, Taliban governance does draw from Islam. In fact, Taliban means "students of religion." (28) For the most part, Taliban were schooled in madrassas (religious institutions) in Pakistan. Initially, the Taliban were welcomed insofar as they "brought peace and a relative stability to areas formerly plagued by banditry and lawlessness." (29) But soon thereafter something more "disturbing" arose as the Taliban "brought with them an Islamicist fervour previously unknown in Afghanistan, traditionally a place of religious moderation." (30)

Third, Afghanistan is one of the poorest countries in the world: constant famine, little clean water, and essentially no market economy. The country bears the deep scars of a decade-long conflict triggered by the Soviet invasion. Life expectancy hovers in the 40's. (31) Famine is aggravated by UN sanctions imposed on Afghanistan in an attempt to trigger the extradition of Osama bin Laden for alleged involvement in the 1993 World Trade Center bombing and the USS Cole attack, among others. Inevitably, the ongoing bombardment will exacerbate Afghan hunger and poverty.

Fourth, the war against the Soviets occupies mythic importance in the Afghan mindset. In 1979, the Soviets invaded Afghanistan to prop up a faltering communist regime. Militant Islamic fundamentalists - called the mujahedeen (32) - vigorously fought the Soviets. In the 1980's U.S. had begun to support mujahedeen operations, initially through purchases of Soviet weapons for the mujahedeen. At this point, Osama bin Laden arrived in Afghanistan and actively supported the mujahedeen. The U.S. was aware of his presence. "[T]he CIA certainly was pleased that a wealthy Saudi had appeared on the scene to help finance the anti-Soviet jihad. In 1986, bin Laden helped build the Khost tunnel complex, for instance, which the CIA was also funding as a major arms depot, training facility and medical center." (33) It was during and as a result of these anti-Soviet activities that bin Laden's network first emerged. In fact, many of these mujahedeen training bases subsequently evolved into bin Laden terrorist training bases. Beginning in 1986, U.S. involvement increased. It also became more direct, taking the form of giving Stinger missiles to these "freedom fighters." Moreover, support for the Afghan "freedom fighters" went beyond the financial and the covert and into the realm of popular culture: Hollywood in fact popularized the mujahedeen cause in a Rambo movie.

For nine years, the invading Soviet forces were subject to dogged resistance by the mujahedeen. From one to two million Afghans were killed; on the other side, 50,000 Soviet troops perished. (34) But then as soon as the Afghans drove out the Soviets, the U.S. lost interest in Afghanistan, (35) its principal foreign policy goal (containment of the Soviets) having been achieved. (36) This created a deep sense of frustration, betrayal, and disappointment among Afghans. The Afghans see themselves as having expedited the demise of the Soviet Empire, then just left to rot in their ruined country. Moreover, and more perniciously, many of these disaffected Afghan war veterans have become the kernel of Osama bin Laden's present network.

Enter the Taliban. The Taliban are not the mujahedeen (although many of Osama bin Laden's operatives are). (37) In fact, the Taliban mysteriously entered Afghanistan, largely from madrassas in Pakistan. But, the Taliban's grip on power in Afghanistan derives from a society with a starkly negative view of the outside world owing to Russian intervention, and then Western and other foreign intervention in support of the mujahedeen, and then the abandonment of the mujahedeen after the Soviets withdrew. (38) With the dissolution of the communist government in Afghanistan in 1992, fighting became extensive and the country disintegrated into anomie. (39) The Taliban stepped into this power vacuum and culture of war.

Afghans, including our students in Peshawar, look upon their casualties in the war against the Soviets "as an unrewarded gift to the West." (40) This is unsurprising, given that "CIA officials vowed to 'fight the Soviets to the last Afghan'." (41) However, the spirit of jihad that galvanized Afghans against the Soviets thereafter turned against the U.S. Jason Elliot recounts the following comments by an Afghan, illustrative of commonly shared sentiment:

'For ten years we fought the Russians. America helped us then, when Russia was the enemy. When we defeated them, the Americans were gone. Look at this country now, which we ourselves destroyed believing they would help us afterwards.' (42)

Fifth, Afghans speak of a deep-rooted sense of Islamic exclusion from geopolitical institutions. Although there are 1.25 billion Muslims in the world - roughly a quarter of the world's population - there is no permanent Islamic member of the Security Council. Although the post-colonial era has seen the emergence of many more states on the international scene and a diversification in terms of the numbers of sources and players in the international law arena, serious structural change still remains absent. As Richard Falk opines: "[...] Islamic perspectives have not been equitably represented in key authority structures and processes of world order, which helps account for the impression and actuality of an anti-Islamic bias in addressing controversial issues on the global agenda." (43) This results in perceived civilizational exclusion from the collective of humanity. (44) This civilizational exclusion, in turn, itself constitutes a human rights issue: within the established array of human rights, is there not a right to meaningfully participate in the structures that create world order? (45) This anti-Islamic bias may also cloak itself in ignorance or fear: for many Westerners, Islam seems like a parallel universe: a fogged window, a wall with no door, something inaccessible to be wary of. According to David Westbrook, "[i]t can be argued that Islam provides the sole coherent, non-liberal world view of any political significance, and consequently the only vital external perspective on the liberal project of public international law." (46) To be sure, the fact that Islam presents a challenge to the dominant world view simply heightens the sense of marginalization. Even those refugees most opposed to the Taliban are very vocal about the isolation of Islamic perspectives.

II. Armed Attacks, Criminal Attacks, and International Law

At this juncture, three actors need to be distinguished: (1) the terrorists, who are individuals; (2) the al-Qaeda terrorist organization, which is a non-state actor; and (3) the Taliban, which is the government of Afghanistan and has control over most of the territory of Afghanistan. Two wrinkles to (3) are: (a) even prior to the terrorist attack the Taliban was recognized only by a handful of other governments (Pakistan, United Arab Emirates, and Saudi Arabia) (47) as the legitimate government of Afghanistan; and (b) it cannot be assumed that the Taliban is a homogenous entity and of the same mind when it comes to internal policies regarding terrorism prevention and punishment. (48)

These distinctions are necessary in order to ascertain whether the September 11 attacks constitute an armed attack (traditionally referred to as an "act of war" (49)) or a criminal attack. This categorization is relevant to determining the legality of the military strikes that began against Afghanistan on October 7, 2001. If the September 11 attacks constitute an armed attack (in particular, an Afghan armed attack), then there may be room to justify the strikes under the language of the Charter of the United Nations, the law of armed conflict (jus ad bellum), and international legal understandings of individual or collective self-defense. However, if the attacks are instead categorized as criminal attacks, then they would be addressed by the machinery of the criminal law. The use of force against Afghanistan would then appear more problematic, particularly if the government of Afghanistan did not exercise effective control over the criminals. On the other hand, the use of force may be legitimized if it could be shown that there was no other way to defend against future criminal attacks or no other way to obtain custody over alleged criminals. (50) Moreover, if this use of force is successful in capturing alleged terrorists, important questions arise as to where, how, and under what standards these individuals are to be prosecuted.

The Charter of the United Nations establishes the basic principle that UN members shall settle their disputes by peaceful means. (51) This presumptively prohibits the use of force. (52) There are two exceptions. A state can use lethal force: (1) that is necessary in self-defense from an armed attack; (53) or (2) with Security Council authorization that such force is necessary for the maintenance of international peace and security.

An important caveat to (1) is that armed attacks generally are thought to be perpetrated by states against other states. (54) If the party responsible for an attack is not a state or a state actor or agents sent by a state government, then the lawfulness of the use of armed force on a state where that party is believed to be is open to doubt. (55) The terrorists and their umbrella organizations are individuals and non-state actors. They do not constitute a state nor do they appear to govern one. In fact, no nation appears to have attacked the U.S. At first blush, this problematizes the legality of the strikes launched against Afghanistan on October 7, 2001.

The jus ad bellum is predicated on the assumption that disputes, armed conflicts, and attacks occur among states or those that act on their behalf. Nonetheless, non-state actors can present significant threats to international peace and national security. Indeed, the number and influence of non-state actors has increased in recent decades. However, these are not entirely new entities. For example, there was a time when pirates terrorized the high seas, and international law developed doctrines related to piracy. However, these doctrines did not expressly treat piracy as an act of war. But modern terrorists possess sophisticated weaponry, political agendas, and use the language of war to justify their acts. This differentiates them from the pirates of yesteryear. It also suggests that, although it may be legally correct to balk at classifying their conduct as constituting an act of war or armed attack, international law may wish to revisit the positivistic and state-centered notion of what exactly constitutes "war", "armed attacks" and "armed conflict."

    (i) Afghan State Responsibility

As discussed previously, traditional public international law does not readily contemplate non-state actors such as individuals or al-Qaeda as initiating acts of war or armed attacks. But, the question arises whether the September 11 attacks can be attributed to Afghanistan and, therefore, categorized as an Afghan armed attack. This would legitimize the strikes even under a traditional, inter-state reading of the jus ad bellum.

Can Taliban conduct in relation to Osama bin Laden's activities implicate the state of Afghanistan? This clearly is the argument that President Bush endeavored to construct immediately following the September 11 attacks and also reiterated in his October 7, 2001 speech following the initiation of military strikes. (56) The President "named Afghanistan's Taliban as a perpetrator, saying the regime itself has committed murder by supporting the terrorists." (57) Can the President view as indistinguishable the terrorists who committed these acts and those who harbor them? Are states responsible for the acts of their citizens or residents?

To be sure, states can be vicariously responsible for international wrongs. However, states are not strictly liable for all wrongs that emanate from their territory. (58) When the actors in question are non-state actors, the basic legal test determining responsibility is whether the state had "effective control" over the wrongdoers. (59) The International Court of Justice established this test in 1986 when it was called upon to assess U.S. responsibility for the acts of the contra rebels in Nicaragua. The U.S. had argued for a high threshold of state responsibility. It was successful in this regard. The International Court of Justice held that, although the U.S. helped finance, equip, organize, and train the contra rebels, this level of involvement did not "warrant the conclusion that these forces [were] subject to the United States to such an extent that any acts they have committed are imputable to [the U.S.]." (60)

It may well be that the "effective control" test is no longer appropriate given the dangers posed by transnational terrorism. In this vein, perhaps state responsibility should be triggered by a lower legal standard. An attenuated standard may be particularly appropriate when the non-state actor is known by all to be highly dangerous and readily capable and willing of initiating attacks. In such a situation, should responsibility be triggered when the state in question knowingly tolerates the responsible parties, encourages them, or fails to do anything about them? In this regard, Afghanistan may well be in breach of its state responsibility to take measures to prevent its territory from being used to launch, plan, coordinate or concoct attacks against other states. And, following the September 11 attacks, if the Taliban is harboring those responsible, then Afghanistan will be in breach of its international legal obligation to prosecute or extradite the alleged offenders.

Regardless, for the moment the "effective control" standard previously advocated by the U.S. remains authoritative, (61) notwithstanding the fact that state and international organization response, together with scholarly writing, (62) suggest that it may require attenuation (at least in the case of terrorism). This means that state toleration, encouragement, or facilitation are likely insufficient connections to establish state responsibility, particularly for the onerous standards that ought to determine whether a state initiated an armed attack.

Whether the Taliban, as the government of the state of Afghanistan, exercised effective control over bin Laden, the terrorists, and al-Qaeda is thus a question of fact. Now, the Taliban have indicated that Osama bin Laden is under their "control." (63) This would support a finding of state responsibility. Alternately, it could be argued that the Taliban and bin Laden may be meshed into a web that cannot be disentangled. If this is the case, then the argument that the state of Afghanistan ought to be responsible for the terrorist acts is strengthened as it may be that bin Laden forms an indirect but very real part of that state. However, there is a third possibility. At least one expert has flatly stated that bin Laden controls the Taliban. (64) If so, then what could the Taliban ever have done to obtain custody over bin Laden or shut down his camps? How does state responsibility apply when the state itself may be controlled by a non-state actor? One observer has noted:

"A state that is so weak that it literally cannot control terrorist activity emanating from within its borders can hardly be said to have acted at all [...] [T]he impotence of a state to control international terrorist organizations would not be an armed attack against another state [...]." (65)

In the alternative (and in the absence of legal attribution to the Taliban), can the September 11 attack be attributed to the peoples of Afghanistan? If so, would this provide some basis for state responsibility and therefore sculpt the attack into an armed attack by a state? To be sure, this is at best a tenuous argument. The peoples of Afghanistan exercise little control over "evildoers" such as Osama bin Laden. In fact, the Afghan peoples may largely be the victims of al-Qaeda and the Taliban, even though some are supportive of both. This uncorks a painful moral agency question. What responsibility do the peoples of Afghanistan share for the acts of the terrorists and the supplicant role of the Taliban government? On the other hand, is this moral conundrum any different than holding nationals responsible or causing them to suffer whenever a state is run by a dictator who rules by force and without democratic popular consent? In this regard, however, it is important to recall that no Afghan has been tied to any terrorist attack against the West. (66) Might this further problematize vicarious responsibility for the Afghan people when those allegedly responsible for the attacks are not Afghan nationals? The Bush Administration, although conflating the terrorists with the Taliban, is separating the peoples of Afghanistan from both, but subjecting all to the use of force (although the fact that the strikes appear to be focused on Taliban military structures and terrorist camps - together with the fact they are accompanied by the distribution via airdrop of food and medicine - may drive against a finding that they cause excessive civilian suffering). (67)

Difficult questions continue to spiral one from the other. If liability is to be imputed to Afghanistan for Taliban behavior, where does this imputation end? What about other regimes that in the past have offered support for or acquiesced to the Taliban (for example, Sudan (68) and Saudi Arabia (69))? What about regimes such as the USSR (to which the Russian Federation is the successor in international law), whose military aggression in Afghanistan prompted the emergence of the mujahedeen and brought Osama bin Laden there in the first place? (70)

    (ii) Were Peaceful Means Exhausted?

Whether the use of force is lawful is a question that should only arise when there are no peaceful means available to settle the dispute or, more realistically, when peaceful means have been exhausted, or are ineffective or unsuccessful. Were all peaceful means to resolve the disputes between Afghanistan and the U.S./U.K. necessarily exhausted before the use of force was initiated? Would it have been necessary for Afghanistan immediately and fully to comply with President Bush's request to shut down the terrorist camps and turn over bin Laden? Or would partial compliance have served to weaken the immediacy of the threat necessary to justify self-defense strikes?

To be sure, Afghanistan delayed, hemmed, and hawed in the face of U.S. requests. It first delivered Osama bin Laden its fatwa (edict) asking him voluntarily to leave the country, but then did nothing to achieve that result. (71) Then it expressed skepticism regarding the evidence that implicated bin Laden; however, Afghanistan may have been justified in asking the U.S. to provide evidence of Osama bin Laden's involvement, and in refusing to turn him over without such evidence. (72) Then, in the week before the strikes, the Taliban did affirm that it was ready for negotiation and would try to find bin Laden. (73) Subsequently, on the eve of the strikes, it announced that it would try bin Laden in an Afghan court under Islamic law. (74) Should this have sufficed to defer the strikes? Should a declaration by Afghanistan that it was ready to discuss the issue and negotiate over bin Laden defer any finding that Afghanistan has breached an international obligation? In the end, there may be concern that the October 7, 2001 strikes may have "jumped the gun."

In a similar vein, the U.S. and U.K. may have had a legal obligation to discontinue the strikes. At the beginning of the second week of the strikes, a senior Taliban official stated that there was room to discuss the surrender of bin Laden to a neutral third party country for legal adjudication. (75) Although President Bush had previously indicated a willingness to reconsider the use of force if the Taliban would surrender bin Laden, (76) the President rejected this offer, remarking that the surrender would have to be unconditional as "he was not interested in discussing Mr. bin Laden's innocence or guilt." (77) Once again, the unresolved question arises whether these ongoing offers suffice to relieve Afghanistan of any dereliction of international law and instead point to the continued use of force as an infringement of international law, even if initially permissible as self-defense to an armed attack. Simply put, the strikes may no longer have been necessary.

    (iii) Security Council (Non)Authorization

Even if the September 11 attack is classified as an ongoing armed attack - whether terrorist, al-Qaeda, or Afghan - responding through the use of force is strongly disfavored under the Charter of the United Nations. After all, the Charter intends to promote peaceful resolution of disputes. Art. 51 of the Charter and customary international law limit the ability of states to use force only to situations of "self-defense." Moreover, self-defense can only be exercised until the UN Security Council has taken measures necessary to maintain international peace and security. These measures (which in the past have been mandated under Chapter VII of the Charter), can include peace-enforcement, authorization of the use of force, (78) or judicial intervention through criminal tribunals and reparations procedures.

The Security Council has addressed the September 11 attack. On September 28, 2001, it adopted, under the aegis of Chapter VII, Resolution 1373 on steps to combat international terrorism. (79) The Security Council reaffirmed through Resolution 1373 its initial position (taken in Resolution 1368 on September 12, 2001) that terrorist acts constitute threats to international peace and security. These threats are to be combated by all means in accordance with the Charter. The Security Council also reaffirmed the inherent right of individual or collective self-defense, again in accordance with the Charter.

However, the Security Council did not explicitly authorize the use of armed force in self-defense in response to the events of September 11. Instead, it emphasized inter alia that all states are to prevent and suppress financing of terrorist acts, are to refrain from supporting anyone involved in terrorist acts, are to take all necessary steps to prevent such acts, and are to bring to justice any person who participates in such acts. To be sure, it has been suggested that the mandate to take all necessary steps to prevent terrorist acts or the categorization of such acts as threats to international peace or security impliedly authorizes military strikes and the lethal use of force. (80) Moreover, following the October 7 strikes, Secretary-General Annan somewhat cryptically stated that the states that launched the strikes "[...] have set their current military action in Afghanistan in th[e] context [of Resolutions 1368 and 1373]." (81) State action, practice and declarations indicate that the Security Council Resolutions are being interpreted as a "green light for the United States to respond militarily to the attacks [...]." (82)

But, nonetheless, Frederic Kirgis accurately observes that "Resolution 1373 does not authorize states to take all necessary steps to implement it. Instead, it stands as a warning that the Council itself stands ready to take further steps, which presumably could involve an authorization of some form of armed force that would not necessarily be limited to self-defense, to ensure that the measures taken in the resolution are adequately implemented." (83) But this additional authorization was not obtained prior to the October 7 strikes. Nor was a delegation made to states to themselves authorize the use of force. This future authorization was arrogated to the Security Council itself. In fact, the use of force against Afghanistan was initiated after the Security Council twice addressed the issue of international peace and security occasioned by terrorism; this would thus appear to take the use of force outside of art. 51's grant of the right to repel an armed attack on a temporary measure until the Security Council has spoken. (84) This also suggests that the U.S. and U.K. may have been limited to non-violent means to obtain custody over Osama bin Laden including, as one scholar has suggested, suing Afghanistan in the International Court of Justice. (85) As an aside: it is unclear whether Afghanistan would have consented to the jurisdiction of the International Court of Justice or whether jurisdiction could otherwise have been found.

The fact that the U.S. and U.K. did not obtain express Security Council approval prior to the October 7, 2001, military intervention may suggest a diminishing role for the Security Council and the United Nations in monitoring global peace and security. The focus on the Security Council's alleged implied authorization, and the comments by Secretary-General Annan after the fact, also suggests a shift in international legal understandings of the use of force, even perhaps on the part of the UN and other international organizations. (86) In principle, the involvement of the Security Council in the use of force in response to breaches of international law is an important one. For example, the Security Council explicitly authorized the use of force against Iraq in 1990 and 1991 (Resolutions 678 and 688) following the invasion of Kuwait. (87) However, in what could turn out to be an important precedent, the Security Council never expressly authorized the use of force against the Federal Republic of Yugoslavia regarding ethnic massacres of Kosovo Albanians in 1999. (88) Instead, a NATO alliance intervened - operating independently from the UN - arguing that "humanitarian armed intervention" constitutes a legitimate basis for a nation or group of nations to use lethal force against another.

Possibly the same argument - and a similar skirting of the Security Council - could apply to Afghanistan (or whichever country may shelter terrorist camps or Osama bin Laden himself) given the humanitarian and national security nature of incapacitating the terrorists and putting them on trial. This is not to obfuscate the differences between: (1) armed intervention in a state to protect groups within that state from that state's government (the case in Kosovo, a situation of humanitarian armed intervention where there were only ancillary threats to the national security of the intervening countries); and (2) armed intervention in a country that harbors individuals who are responsible for attacking the intervening nation, killing its citizens, and destroying its infrastructure (more readily classified as armed intervention in self-defense or to protect national security). (89) International law more clearly recognizes armed intervention in self-defense than in the protection of third parties victimized by their national governments. However, what both kinds of intervention share in common is a formal sidelining of the Security Council, and possibly a reformulation through state practice of the general law of armed intervention. Following Kosovo, has international law shied away from the need for Security Council approval to ensure the legality of armed intervention when such intervention may be multilaterally co-ordinated and undertaken for laudable humanitarian or security purposes? Is the simple proclamation that an actor or state is a "threat to international peace and security" now the trigger mechanism permitting unilateral or multilateral military intervention including the lethal use of force? Is Resolution 1373 and the Afghan situation merely another point on this continuum of potential UN marginalization? Or in the expansion of implied authorization to proceed militarily unilaterally or multilaterally?

The role of multilateral global coalitions in policing bad behavior may be increasing and potentially supplanting what initially was designed as the role of the UN. Although there may be short-term appeal to contracting out of the UN process, it is unclear whether this may be desirable in the long-term. In the case of the Afghanistan bombing, the U.S. and U.K. explained in a letter to the Security Council after the fact that they considered their armed action consistent with the United Nations Charter, but "did not request a green light or other formal endorsement." (90) Is this cause for concern? Interestingly, in the aftermath of the October 7 strikes, there was little discussion in the media of the role of the UN, or the question of Security Council authorization, and the UN itself was somewhat cowed. (91) However, there was considerable talk of the U.S. expanding its scope of operations beyond Afghanistan - to Lebanon, the Philippines, Indonesia or Iraq, for example - and well into the future, without any discussion whether such an expanded theater of operations would depend on Security Council approval. (92)

    (iv) Self-Defense

Assuming arguendo that the September 11 attack constitutes an armed attack, it could arguably be maintained that the use of force is justified as "self-defense," even in the absence of any UN Security Council authorization or given the ineffectiveness of the actual Security Council response. Self-defense is the only exception to the prohibition on the use of force outside of UN authorization. But, "[l]ike all exceptions, it is to be strictly applied." (93)

The heart of self-defense is its defensive nature. This distinguishes it from retaliation or reprisal, both of which have a responsive, offensive, and punitive connotation. Legal understandings of self-defense imply that any use of force must be proportionate to the force defended against. Thus, even if self-defense permits an armed response, this response cannot be excessive. Excessive force includes that which indiscriminately targets civilians and military personnel. The extent to which civilian casualties are collaterally affected by strikes deployed against military targets would figure in any assessment of the excessiveness of the use of force. The preclusion of excessive force even in situations where self-defense may be justified can be traced to decisions of the International Court of Justice, as well as conventional and customary law of war. (94)

The notion of self-defense also has an element of necessity insofar as it presumes an ongoing armed attack or imminent threat thereof. The classic formulation of self-defense in international law provides that there "must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." (95) It is thus somewhat ironic when Prime Minister Blair speaks of self-defense as the basis for U.K. involvement in the military intervention, but then remarks that "there was 'no specific credible threat' that he knew of to Britain." (96) In a similar vein, does the fact that the U.S. and U.K. waited three weeks after the initial attack to launch strikes reveal that those strikes were not necessary to defend against an imminent or immediate threat? On the other hand, do bin Laden's post-September 11 videotaped exhortations to attack Americans at any opportunity establish the ongoing necessity of continued strikes and ground forces? The necessity requirement also is challenged when force is used against state institutions when it is unclear that such institutions actually can control the terrorist threat.

The UN Charter was not drafted or intended to cover aggression and attacks by non-state actors. Nor was it intended to cover the privatization of violence within international networks that may run outside of the control of states. Consequently, state behavior in response to the September 11 tragedy will orient the future growth of international law in a complex newer world order in which non-state actors are central participants. However, for the moment, to go to war or against non-state actors or states that harbor such actors may be legally problematic, especially in the absence of explicit Security Council authorization. How to Prosecute Terrorist Criminal Attacks?

Although it may be a challenge to classify the September 11 attack as an armed attack (whether Afghan or otherwise), its categorization as a criminal attack is much more straightforward. Moreover, it may be more appropriate, in a philosophical and semantic sense, to characterize the violence as a criminal attack rather than as an armed attack. Labeling an act an armed attack (and particularly an act of war) confers a legitimacy that labeling an act as a crime does not convey. Moreover, the use of legally inaccurate yet politically compelling language that calls the September 11 tragedy an act of war tends to justify Islamic extremists' notion that the attacks were in fact some sort of holy war or just war. Rather, the perpetrators of this attack are outlaws and criminals, not warriors.

Now, in an important dose of realpolitik, it may be that the U.S. or NATO simply takes justice into its own hands and goes into Afghanistan to assassinate bin Laden, his closest acolytes, or even Taliban leaders such as Mullah Omar (or, alternately, that they perish in pre-planned bombing raids). (97) This might constitute an extra-judicial killing or a state sponsored assassination, and thereby a violation of international law. However, such assassinations are not unrealistic possibilities, especially given a common perception that bin Laden is the psychological, spiritual, and material epicenter of the al-Qaeda network and, thus, eliminating him could take out the network at large. But, at present there are 500 detained suspects in the U.S. alone, (98) plus dozens more all across Europe. Moreover, President Bush has stated that the purpose of the strikes is to bring the terrorists to justice. (99) Presumably, then, this means that international criminal proceedings will arise, and international criminal issues will need to be addressed.

Note that there is no precise agreed upon international definition of terrorism as a crime. (100) This technically means that terrorism per se cannot be found to constitute an international crime. (101) Nonetheless, international and national criminal law symbiotically establish five avenues to pursue those individuals implicated in the September 11 attacks:

• Prosecution in the U.S. under domestic U.S. law. Under the territoriality principle, the U.S. would have a basis for its courts to have jurisdiction to prescribe and adjudicate this crime. The domestic statutory regime contains a variety of anti-terrorist legislation. (102) If the accused are located in foreign countries, then they could be extradited from these places to face trial in the U.S.
• Prosecution in signatory states under international conventions. The Hague Convention for the Suppression of Unlawful Seizure of Aircraft creates jurisdiction for all signatory states to prosecute offenses or extradite to a state that will prosecute. (103) Other relevant conventions include the 1963 Tokyo Convention on Offenses Committed on Board an Aircraft, (104) the 1971 Montreal Convention for Unlawful Acts Against Civil Aviation, (105) and the 1998 International Convention for the Suppression of Terrorist Bombings (which criminalizes and creates jurisdiction for, inter alia, unlawfully and intentionally detonating an explosive in a public place and covers those participating in the acts as accomplices or organizers or directors). (106) But, arguably, an atrocity in which a hijacked aircraft is used as a lethal weapon resulting in the deaths of thousands of persons exceeds the scope of these hijacking/air offenses conventions.
• Prosecution under universal jurisdiction as a crime against humanity. Crimes against humanity are defined by the Rome Statute of the International Criminal Court as including murder or inhumane acts when "committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack." (107) Recent decisions by the ad hoc international criminal tribunal for the former Yugoslavia have reaffirmed that crimes against humanity can be disconnected from armed conflict such that crimes against humanity can be prosecuted outside of an armed conflict. (108) Given the absence of legal certainty that the September 11 attacks constitute armed attacks, the fact that crimes against humanity can be committed outside of armed conflict is relevant to the prosecution of those attacks. (109) If this atrocity is a crime against humanity, the jurisdiction to prosecute offenders is universal, meaning that any country can prosecute or must extradite the accused to a country that will prosecute. The universal basis for jurisdiction is particularly appropriate insofar as nationals of 81 countries perished in the attacks; although U.S. nationals were the principal victims, the breadth of victimization may make this crime one in the interests of all of humanity to prosecute. (110) Moreover, international criminal law prescribes direct criminal responsibility for those who inter alia order, plan, instigate, aid, or abet the crime, or who act in a common criminal enterprise with those who actually commit the offense. (111) This means that "[t]hose directly responsible are not only those who hijacked the planes, who killed themselves in the process, but also the full networks of persons who assisted in various ways." (112)

Given that the International Criminal Court is not yet in existence (and when it does come into existence will only have prospective jurisdiction), no permanent international institution is available to prosecute these offenders. Accordingly, trials for crimes against humanity will have to take place at the national level in: (1) national courts or through transnational courts (as was the case for the Lockerbie incident); or (2) through special ad hoc international tribunals (such as those created by the Security Council of the United Nations for the former Yugoslavia and Rwanda; or (3) special courts negotiated between the UN and the afflicted country, as was the case for Sierra Leone).

• Strangle the finances going to the al-Qaeda network by prosecuting the financiers. There is evidence that al-Qaeda's financing is global in origin and in part proceeds through traditional, undocumented banking practices known as hawala. (113) Prosecuting these financiers and launderers can be conjoined with whichever of the three methods is chosen to prosecute the terrorists. There also is an international convention regarding the suppression of terrorist financing, concluded in 1999. This mandates signatories to prosecute those who finance terrorist activity. This treaty, though, has not yet entered into force as only 4 states have ratified it and it requires 22 (the U.S. is not among the ratifiers). As a result, co-ordinated domestic initiatives will be required to pursue those who fund terrorism and freeze assets, instead of a streamlined international approach (and, presumably, lowered transaction costs) provided by a treaty. (114)

• Civil suits against terrorist networks or governments that condone them. A variety of legislation permits individuals, whether U.S. citizens or not, access to U.S. courts to file damages claims against foreign individuals, corporations and, in some cases, governments for violations of international law occasioned by terrorist acts. (115) This is not a trivial exercise: after all, domestic hate groups were more affected by the Southern Poverty Law Center's civil damages suits than by individual criminal prosecution of hate mongerers. However, jurisdictional problems arise in the case of al-Qaeda and other terrorist networks given that defendants must be brought within the jurisdiction (at least for the service of process). To be sure, this would be overcome were the defendants already to be in the U.S. for purposes of a criminal trial. (116) Moreover, difficulties arise in terms of executing judgments, but these could be somewhat averted if assets are frozen on an expedited basis. To some extent, Osama bin Laden is a deep pocket. (117) Moreover, the government of Afghanistan may be a possible defendant. Following a 1996 amendment, the Foreign Sovereign Immunities Act does not protect a foreign sovereign from lawsuits involving terrorist behavior. In the end, these types of claims could offer some sort of reparative or restorative justice for the families of victims of the September 11 tragedy. (118)

III. Gaveling Justice and Constructing Social Norms

Serious thought should be given to the manner in which accused criminals would be tried, including those presently apprehended in the U.S. A trial in the U.S. may have little precedential effect in deterring future terrorist behavior given that such trials may have little meaning in those societies where disaffected individuals may join terror networks. After all, the September 11 attack comes on the heels of the trial for the 1993 World Trade Center bombing (where bin Laden was indicted as a defendant but failed to appear; four other individuals were convicted). Western-style trials in pseudo-international settings such as the Lockerbie trial also may have little meaning outside of the West. (119)

What would be the point of apprehending and prosecuting terrorist organizers, planners, accomplices, conspirators, and abettors (recall that the actual individuals who hijacked and piloted the airplanes to their destruction all are dead)? One obvious point is to get the guilty off the "international streets." Outside of that immediate effect, there are generally two justifications for trials: (1) a deontological justification - namely to prosecute and punish because the act committed merits prosecution and punishment, regardless of the broader effects; and (2) a utilitarian justification - to prosecute and punish because doing so deters future crimes. A shortcoming of Western-style prosecutions for transnational terrorists is that they may satisfy the deontological but not the utilitarian aspects of punishment. In other words, they may do little to deter since they may have little legitimacy to affect social norms or behavior patterns in the societies where terrorism emerges. Suicide bombers will not be deterred by prosecutions in the U.S.; more importantly, non-violent sympathizers of suicide bombers will not view such trials as delegitimizing the cause, quite the contrary.

Afghan skepticism about Western-style trials surfaced during my teaching at the Afghan University. Some of the students raised the issue of an international criminal tribunal for the Taliban. At that point, Taliban complicity in the September 11 attack was not yet an issue, as the attack had not yet taken place. But, regardless of its involvement with the September 11 attack, it has been suggested that the Taliban already is responsible for a litany of international crimes. These potential crimes include: forced deportation, massacres, extrajudicial executions, disappearances among prisoners, persecution of Shia Muslims, politicide, gender crimes (some would say sexual apartheid (120)), rape, crimes against the common heritage of humanity (i.e. the destruction of the ancient Bamiyan Buddhas and the destruction of objets d'art in the National Museum in Kabul), and narcotics trafficking. Taliban members have themselves been victimized by human rights abuses perpetrated by opposition and rebel forces within Afghanistan. (121) This broad array of alleged criminal conduct ought not to be overlooked in the drive to bring terrorists and the role of Afghanistan in facilitating that terrorism to book.

In my estimation, in order for trials of the Taliban and of the terrorists to be perceived as legitimate, they may have to take into account Islamic law, involve Islamic jurists, judges, and prosecutors, and take place in international fora or even Islamic countries. Holding trials far away from the Muslim world under foreign proceedings and under foreign national courts may lead to a meaningless externalization of justice in those places whose nationals perpetrated the atrocities. Creating meaning is important as it is only when these places shame terrorist elements that future terrorism may become discredited ex ante. Intervention - whether judicial or military - can never substitute for prevention. And adequate prevention necessitates work at the local and regional level by local and regional groups.

Additionally, the Taliban understanding of Islam is significantly influenced by Pashtun tribal practices (the Taliban largely are of the Pashtun group that lives in both southern Afghanistan as well as northern Pakistan). Pashtun codes of behavior are governed by the Pashtunwali, a set of customary laws that govern the day-to-day relations of the Pashtuns. In fact, the Taliban initially relied on the Pashtunwali as a basis to reject the ejection from the country of Osama bin Laden, relying on parts of the Pashtunwali that involve treatment of invited foreign guests (Osama bin Laden was considered to be such a "guest").

However bizarre this customary set of laws may seem to many Westerners, in order for terrorism to be viewed by Pashtuns as a repugnant social norm to be stamped out, it will be have to be constructed as deviant and repugnant conduct within all elements of Pashtun society. This entails establishing its deviance through local law, whether this be religious or customary (or both). Creating this social norm is an important, if not urgent, task. Thomas Friedman chillingly observes: "We must now fight a war against terrorists who are crazy and evil but who, it grieves me to say, reflect the mood in their home countries more than we might think." (122) Fareed Zakaria remarks that popular support of Islamic movements throughout the Middle East is such that democratic elections "would simply bring more Talibans to power." (123) And the regimes with which the West now is doing business through expediently and conveniently arranged alliances - the secular dictatorships of the Muslim world - are often brutally repressive and have spawned violent opposition in the form of Islamist sympathies. (124) Arab secular dictatorships have crushed Islamic terrorists, but never delegitimized their behavior within the popular will as unIslamic (quite the contrary, in fact). (126) Afghans have divided loyalties: although many hate the Taliban (127) and condemn al-Qaeda, these same individuals may have some empathy for the causes these entities adumbrate.

Notwithstanding these concerns, the West continues to base its foreign policy toward the Muslim world in alliances of convenience rather than a more principled approach. The U.S.'s suddenly warm relationship with Pakistan stands as a case in point. In exchange for Pakistani cooperation in the war on terrorism, the U.S. has agreed to lift sanctions against Pakistan that were imposed in 1998 when Pakistan tested and detonated nuclear weapons in contravention of international law and public policy. (128) Moreover, by allying itself with the Pakistani government in the war against terrorism, the U.S. actually may be siding with a military dictatorship that has not been averse to backing insurgency, often taking the form of terrorism, in its own conflicts with India regarding Kashmir. (129) Might this alliance of convenience turn into a Faustian bargain, just as initial alliances with Saddam Hussein of Iraq, (130) General Noriega of Panama, and the mujahedeen did? Even if not, it remains that pursuing alliances of convenience creates an impression among even supportive Afghans - such as the students I taught - that the U.S. is an unprincipled puppeteer; and an impression among the suddenly favored Pakistanis that the U.S. is a "companion of shallow sincerity" (131) and the "lesser evil." (132)

Given that the best deterrent of terrorism is self-policing among those states and societies from which the terrorists presently emerge and operate, (133) the creation of a legal and social norm that condemns terrorism is a necessary mid- to long-term project. (134) Yet current U.S. foreign policy (these naked bargains and unauthorized, and questionably legal, military action) and legal policy (ready to subject foreign criminals to American justice, but unwilling to subject Americans to anything but American justice (135)) may hamper the growth of these norms. A long-term culture of non-vituperative moderation needs to be fostered within secular and religious elements of Muslim society. Anti-terrorist policy initiatives will be all the more successful if these elements view the terrorists as fundamentally anti-Islam, not as holy warriors in a nihilistic world where secular dictatorships - frequently perceived as the puppets of the West - rule with an ad hoc iron fist without any deeper sense of legitimacy.

In the case of Afghanistan: although is it morally problematic to hold the peoples of Afghanistan responsible for the Taliban and the terrorists by subjecting those peoples to bombardment, the fact remains that many Afghans actively or passively supported and continue to support the Taliban. These levels of active and passive support - not to mention complicity in human rights abuse and terrorism - need to be fleshed out in order for rule of law and a culture of human dignity to (re)establish itself. As I have argued elsewhere, criminal institutions are not well-suited to flesh out broad levels of passive complicity. (136) Instead, restorative justice institutions may be more appropriate mechanisms for such pursuits. (137) This broad complicity and passive acquiescence often constitutes an important structural condition that allows human rights abusers (whether state or non-state actors) to perpetrate their abuses. As such, is difficult to deter future violence without exposing this broad complicity and passive acquiescence. Afghanistan is no exception.

Individual criminal sanctions also may deflect responsibility away from international organizations and institutions, as well as foreign governments. Given that sustained foreign involvement in Afghanistan during the 1980's prompted the emergence of the Taliban, this involvement must be exposed and appraised as it carries with it important issues of justice and responsibility that should not remain unaddressed. This is particularly necessary if justice is to be perceived as legitimate and capable of (re)constructing social norms. But criminal trials do little to ferret out the historical realities (138) that make justice truly corrective. It may be simple for the victims to blame the terrorists (and undoubtedly the terrorists are blameworthy). However, the social and historical context that contours the terrorists and that currently gives them a patina of legitimacy among certain non-violent peoples facilitated the September 11 attacks. This legitimacy will have to be addressed in order to minimize the prospects of future attacks. But individual, selective criminal trials may not be equipped to ferret out this broader institutional and transnational complicity. In fact, collective institutional, organizational and governmental responsibility may be masked by findings of individual, deviant guilt. From the perspective of the victims of terrorist violence, this means that only a simple form of justice has been meted out, not one that strips away layers of complicity such that future violence truly can be deterred.

In the end, there may be an all-too-unsubtle irony in having a group of foreigners decide the criminal misdeeds of the terrorists and the Taliban when the trial over which this group presides does not address the collective, political, and historical responsibility of the great powers in the Taliban's rise to and ferocious consolidation of power, not to mention the anger of those who flock to the al-Qaeda network. Then, when the terrorists and those who harbor them are found guilty (or are hunted down), the discussion is closed, and the moral debt repaid. Is justice really that simple?

In sum, prosecuting the terrorists and those who harbor them, either through extraterritorial criminal proceedings or through an international criminal tribunal, brings to the forefront the nexus between international human rights and criminal law, on the one hand, and cultural pluralism and Islamic exclusion, on the other. Serious thought ought to be given to prosecuting under and through Islamic law (and taking into account customary practices). On the other hand, victims also must feel that they have a stake in and comfort level with the process. (139) In the end, a specially constructed international, cross-civilizational court (carefully negotiated among all implicated nation-states and not ordered through Security Council fiat or victors' justice) may strike the best balance between the deontological need to punish egregious breaches of international law and the utilitarian need to deter future breaches. After all, "[t]he future of the international legal order rests ultimately on its ability to identify and reflect in its prescriptions and procedures the common interests of all members of the world community." (140) International tribunals may be better equipped to deal with criminal issues regarding conspiracy, as well as thorny questions of command responsibility, that would arise in any prosecution of al-Qaeda leaders. (141) Moreover, serious thought could be given to joining this international tribunal with a commission of inquiry that unpacks institutional, societal and national involvement in the rise to power of the Taliban and the radicalization of certain elements of Afghan (and Muslim) society. Finally, restorative and reparative approaches also may help victims achieve a longer-term sense of justice.

Conclusion

The U.S. and U.K. strikes were not expressly authorized by the Security Council. Nor do they appear to be in response to an armed attack. Nor does the argument that they are necessary for self-defense appear to be easily made out, although a plausible case could be made. All things considered, there is thus reason to doubt the legality of the strikes, particularly under traditional international legal analysis. More troubling is the possibility that "any use of force for purposes other than defense against an armed attack or execution of a Security Council mandate under Chapter VII of the Charter constitutes the crime [...] of aggression." (142)

However, Security Council non-objection to the strikes and extensive state support for the strikes suggest that international law regarding the legality of armed intervention to support collective security concerns may be changing, particularly when security threats emerge from non-state actors harbored by a nation-state. These changes may reflect the fact that powerful states are increasingly able and willing to proceed multilaterally and independently of international institutions when their security interests are at stake. Moreover, international institutions may be condoning this independent behavior.

Regardless of the actual legality of the military intervention against Afghanistan that began on October 7, this intervention will have to be perceived as legitimate throughout the world in order for the justice that follows to be effective. Creating mechanisms to mete out legal accountability will be an important part of creating a culture of human rights in the wake of the September 11 attack. Here, the trials that form a central part of the accountability mechanisms must be meaningful in those societies where disaffected individuals join terrorist networks. (143) One way this meaning might be constructed is by translating the trials into language that resonates within these societies. This is why it might be desirable for these trials to involve Islamic law and legal personalities, together with local customary law. Individual victims need justice, and the international community needs to obtain custody over and prosecute perpetrators. However, the pursuit of these goals cannot be disconnected from a thoughtful assessment of how the heinousness of the crimes can be made understandable to the Islamic world. By and large many parts of the Islamic world view as unintelligible many Western legal norms. These societies also may resent the apparent "universalization" of these norms. Regardless of the etymology of that which presently constitutes international human rights law, the corpus of this law is perceived by many in the Muslim world as decidedly Western in flavor, yet imposed on all. This, in turn, spawns popular sentiment whereby Osama bin Laden is empathized with more for what he may stand against than actually for the evil that he stands for. "[A]mong a significant number of Muslims, [Osama bin Laden is] [...] a kind of Robin Hood figure." (144)

In addition to deterring future terrorism through punishment and delegitimization of terrorist mystique, international law also can structurally impede terrorism. Here, important international negotiations previously eschewed by the U.S. could be revitalized. These include, in particular: (1) an international convention restricting trade in handguns and small arms; (145) (2) international conventions addressing biological, (146) chemical and nuclear (147) weapons and their manufacture and proliferation; (3) establishing a permanent international criminal court; (148) and (4) international discussion about racism, slavery, and developing nation poverty. (149) Each of these in their own way might mitigate the scourge of terrorism just as effectively as punishing the aggressors, their financiers, and militarily eliminating terrorist camps. (150) The U.S. cannot afford to pursue unilateralist or isolationist foreign policy in an era of inescapable globalization and mutual vulnerability arising from the "frictionless ether of the modern world." (151)

Prosecuting terrorists through a coordinated, diversified international tribunal can attenuate Islamic exclusion and empower the UN. It can help Western - yet presumptively universal - human rights become more pluralist. (152)It can discredit the allure of the idea of terrorism, which is more effective than destroying bases that can simply be rebuilt elsewhere. Moreover, establishing such a tribunal can lend a principled basis to the war on terrorism, instead of a checkerboard, ad hoc approach that may result from unilateralist responses. (153) Ad hoc, manipulative foreign policy bargains can achieve short term gains but can devolve into Faustian bargains leading to instability and vulnerability.

Nor are trials - even if carefully constructed - a panacea. The mere process of investigating crimes, holding trials, and gaveling accountability will not restore peace to war-torn regions nor pacifism to religious extremism. There are important limits to judicial romanticism. (154) In fact, the closure encouraged by the criminal trial prematurely may divert attention from important issues of nation-building, economic and political stability, equality, and trade balances between the developed and developing world. (155) If trials cause Western attention to end when the perpetrators face justice, they will leave unaddressed some of the pervasive issues of injustice, exclusion, and frustration that, when blended with the volatility of a desperate criminal mind, will prompt more terror. To be sure, it is even more pernicious to assume that the military campaign can provide any closure. If the U.S. and U.K. bomb until the terrorist camps and Afghan infrastructure are destroyed, and then refrain from doing anything else or anything reconstructive, it is unclear whether the military campaign will close out the threat of terrorist tragedy. Even more tragically, this may magnify the threat.

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