October 13, 2001

Bullets over barristers

Jonathan Kay National Post

By my count, Osama bin Laden has declared war on the United States at least four times. In 1992, he urged followers to kill U.S. soldiers defiling Muslim soil in the African horn (the Great Satan was staging a humanitarian mission in Somalia). In 1996, he promulgated a "declaration of war against the Americans occupying the land of the two holy places" (i.e. Saudi Arabia). In 1998, he issued a call to arms under his "World Islamic Front for Jihad against Jews and Crusaders." And just this past week, he repeated his message again. "The jihad today is the duty of every Muslim," declared an al-Qaeda spokesmaniac on Tuesday. "The Americans must know that the storm of airplanes will not stop and that there are thousands of young people who look forward to death."

Yet, a small cadre of deaf Western scholars insists there is no war. Moreover, they say, striking back at bin Laden and the Taliban regime that supports him is against the law. "A well-kept secret about the U.S.-U.K. attack on Afghanistan is that it is clearly illegal," wrote Osgoode Hall Law School professor Michael Mandel in The Globe and Mail on Tuesday. "Since the United States and Britain have undertaken this attack without the explicit authorization of the [UN] Security Council, those who die from it will be victims of a crime against humanity, just like the victims of the Sept. 11 attacks."

Other Canadian legal pundits, such as Tiphaine Dickson and David Jacobs, have gone on television to urge that the West attack al-Qaeda with indictments and subpoenas rather than bombs. In fact, bin Laden is already under U.S. indictment -- for his role in the 1998 attacks on U.S. embassies in Africa. Bin Laden must be pulling his hair out: He keeps trying to declare war on the West; but Mr. Mandel et al. won't let him, and assure us we're just dealing with a few isolated cases of aggravated assault. Both Ms. Dickson and Mr. Jacobs have actually said -- without irony -- that we should indulge the Taliban's request for "evidence" and turn over sensitive intelligence data on bin Laden to Taliban jurists. This request, remember, comes from a country whose judges send people to jail for flying kites, owning televisions and proselytizing Christianity.

Let us be clear about what everybody except a small group of academics already knows: We are at war. And, as Cicero famously said, "Laws are silent amidst the clash of arms." True, civilized nations have sought to forbid atrocities, even in wartime. The principles of international law recognized in the Charter of the Nuremberg Tribunal, for instance, forbid the "initiation or waging of a war of aggression," the "wanton destruction of cities," and the murder of any civilian population on "political, racial or religious grounds ... in connection with any crime against peace or any war crime." But it is the terrorists, not U.S. soldiers, who are guilty on all three counts. Bin Laden helped organize the mass slaughter of civilians. The United States is using precision munitions to punish him and the regime that knowingly shelters him. You decide who is committing war crimes.

Even if we put Cicero to one side, the legalists' case still falls flat. Article 51 of the United Nations' charter states that nothing in the document "shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." No one in their right mind would argue the Security Council or anyone else has brought the United States a guarantee of "international peace and security" in the days since Sept. 11. In fact, bin Laden has promised more terrorist attacks.

But let us assume, by a stretch of fancy, that "international peace and security" actually has been restored by the Security Council. It still wouldn't make the U.S.-U.K. air strikes illegal. For consistency's sake, those who dress their criticism of the United States in legalistic garb must look to the United Nations to identify Afghanistan's rightful government. It is not the Taliban, whose rule is recognized by only one other nation (Pakistan). Rather, it is the Northern Alliance, the rebel force fighting the Taliban in Northern Afghanistan. The Alliance actively supports the U.S. bombing. So on what basis can international lawyers oppose it?

A clue comes in Mr. Mandel's Globe and Mail op-ed. The attack on Afghanistan, he tells us, "is about vengeance and about showing how tough the Americans are," and is the "moral equivalent of what was done to the Americans on Sept. 11." If a scholar is prepared to twist morality so as to put the slaughter of more than 5,000 innocent civilians on the same moral plane as a military attack on the warlords who masterminded the deed, we should not be surprised that he is willing to twist the law into the same obscene shape.

Jonathan Kay is Editorials Editor.; jkay@nationalpost.com

-- Anonymous, October 13, 2001