Amid calls for a swift and powerful retaliation to the terrorist attacks, legal scholars say complex issues are at stake: Must Congress declare war? Should the United Nations be involved? And perhaps most importantly, how does a democratic nation respond justly to such an inhumane attack?
“If we were to bomb civilian targets deliberately, which is what they did to us, that would be an unjust response. It would be illegal and a crime against humanity and we’re not going to do that,” said law professor Abraham Sofaer, a senior fellow at the Hoover Institution at Stanford University.
President Bush called the attacks “the first war of the 21st century” on Thursday and his administration labeled fugitive Osama bin Laden a prime suspect. The United States promised to wage all-out retaliation against those responsible and any regime that protects them.
Congress will take up separate legislation next week to support Bush’s use of force against those responsible.
Legal analysts said they hope politicians are careful with their rhetoric, and their actions.
“I certainly hope we don’t get into this whole declaring war business,” said Sofaer. “It’s a rallying call politically, but under the United Nations charter, there’s not supposed to be anything like war anymore,” he said.
The notion of war, said Sofaer, entails taking over another country. Self defense, on the other hand, is simply protecting one’s own interests.
“We’ve been attacked. We have the legal authority to act in self defense. And we must act,” he said.
But there are striking issues about what that action should be.
“There is no doubt that the people who did this are war criminals, but if it turns out they were acting largely in an isolated fashion, it might be more appropriate to capture them and try them than to bomb a country,” said Harold Hongju Koh, a professor of International Law at Yale University who served as an assistant secretary of human rights under the Clinton Administration.
“This is a challenge to our open society,” he said. “Will we respond within the framework of law or will we respond within the framework of vengeance?”
Amnesty International on Thursday called for “justice, not revenge” to prevail. The organization reiterated its deepest sympathy for the victims of the heinous attacks and called upon the leaders of governments and community groups around the world to ensure respect for human rights in their wake.
“It is important for us all to see that hatred does not become the order of the day; that fear does not become an excuse for the violation of rights and that we all remember our common humanity,” Amnesty’s statement said. “We must be compassionate in our support for the victims, determined in our search for justice and vigilant about the rights of all people.”
The 19-nation NATO alliance declared Wednesday that the attack can be considered an attack on the alliance as a whole. This could mean NATO support for future U.S. military action against those responsible, but the level of that support must be negotiated.
Legal experts lauded the NATO move as well, and said it would behoove the Bush administration to involve the United Nations Security Council as well.
But Michael lgnatieff, a professor of human rights policy at the Kennedy School of Government at Harvard University, said the United States is fully within its rights, according to United Nations charter, to take unilateral military action in self defense without U.N. Security Council approval.
“Involving the U.N. is useful to building international support and legitimacy for American military action,” he said, “but the U.S. can and should go it alone if it needs to.”
Jonathan Greenberg, Academic Director of Stanford Law School’s Program in International Legal Studies, said civilized nations fighting terrorists face a daunting challenge.
“Terrorism is the deliberate attacking of civilian targets. That’s what happened yesterday, with the most horrifying results. But we can’t retaliate against civilian targets under international law,” he said. “If we decide to retaliate, it must be against the people or organizations responsible for committing or organizing these acts of terror, and that’s going to be very difficult.”