U.S. Retaliation May Qualify As 'Crime Against Humanity'

Matthew Kaminski and Paul Hofheinz / Wall Street Journal 18sep01

BRUSSELS -- Over the past decade Western democracies have put political warlords on trials for "crimes against humanity." If the U.S. launches an attack on Afghanistan, would it be guilty of a similar transgression?

The question is more than theoretical. While no one foresees President Bush being forced to stand trial, U.S. actions will be carefully scrutinized in the world court of public opinion. America's adversaries will surely argue that any U.S. attack is illegal. Antiterrorist alliances can crack if U.S. actions are judged illicit and immoral.

"We want to be sure that the people who set out to restore the rule of law do so within the law," says Claudio Cordone, head of research at Amnesty International in London.

Here are the legal hurdles the U.S. must surmount:

Justify the Use of Force.

The simplest way is by United Nations Security Council resolution. After the deadly air attacks on New York and Washington, the council was clearly sympathetic and passed a resolution calling terrorism "a threat to international peace and security." By the U.N. charter, the council can authorize military force to counter this threat. The U.S. might stand by that resolution -- or ask for another specifically authorizing the use of force.

But if China or Russia were to veto a resolution, the U.S. could cite Article 51 of the U.N. charter, which permits states to defend themselves, and make its case to the Security Council after an attack. The U.S. could also cite a U.N. General Assembly resolution which broadened the definition of aggression to include attacks by "armed men, irregulars or mercenaries" sent by one country against another. Legal scholars say that definition could be used to justify an assault on Afghanistan, which shelters alleged terrorist Osama bin Laden -- if there is proof he sponsored the attack.

But this procedure carries greater risks of antagonizing neutral nations because the U.S. would act without U.N. approval. In 1989, the U.N. General Assembly passed a resolution that branded the U.S. invasion of Panama, which lacked U.N. approval, as illegal. In 1999, many countries also criticized the North Atlantic Treaty Organization for failing to get U.N. approval to bomb Yugoslavia.

The U.S. must show that it is acting in self-defense, not an "armed reprisal" that merely seeks retribution, said Eric David, an international law professor at the Universite Libre de Bruxelles.

Pick Targets Judiciously.

U.S. government lawyers must be able to defend any choice of targets as "necessary" to protect the U.S. and as "proportional" to the threat posed. For instance, the U.S., could argue that it has tried to resolve the conflict diplomatically by asking Afghanistan to hand over Mr. bin Laden.

Given how unconventional the attack was, however, there should be great latitude into determining proportionality. Nevertheless, U.S. military action would be on shakier legal ground if civilian casualties mount.

Targeting states that provide "comfort." One of the most difficult legal issues is how to justify attacking states that may have helped the groups that carried out the attacks, but aren't home to the terrorists. "There may need to be a high level of culpability like aiding and abetting terrorists," says Michael Scharf, a former U.S. State Department lawyer who now teaches at the New England School of Law in Boston.

If the U.S. merely claims that countries that harbored the assailants "acquiesced" in the attacks, the U.S. itself could be at fault. That's because many of the hijackers lived and worked in the U.S. But the murder of 5,000 civilians on U.S. territory and legitimate fears of future strikes by terrorists will likely force international standards on what constitutes legitimate defense to be bent.

"If someone attacks your nationals on your territory, you don't have to limit your means to defend yourself," says Ruth Wedgewood, an international law professor at Johns Hopkins School for Advanced International Studies.

Anticipate Counterclaims.

Whatever charges the U.S. makes, victims of any U.S. attack would make counterclaims. Some Serbian families, for instance, have filed cases in the European Court of Human Rights alleging that the U.S. bombing campaign deprived their relatives of their "right to life," enshrined in the European Convention on Human Rights. The case is still pending.

A U.N. tribunal on Yugoslavia said NATO leaders or officers shouldn't face war crimes charges. But the court questioned NATO's targeting of Serbia's national television headquarters and its use of cluster bombs, which kill indiscriminately.

"It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants," a report prepared for prosecutors examining allegations against NATO said.

Thus far, the U.S. is making its case with at least a glance toward international lawyers. NATO invoked Article 5 of its charter, which declares that an attack on any members is an attack on them all, and informed the U.N. of that decision. NATO lawyers say they will keep the world body informed of future actions.

The allies have a "legitimate" reason to defend themselves, but will carefully abide by the rules of warfare, NATO Secretary General George Robertson said. "The means employed must be commensurate to the force of attack being experienced."