11 October 2001

Australia should oppose the West’s war against terrorism

Gavin Moodie, Victoria University of Technology

The West’s bombing of Afghanistan is probably wrong in international law, it is wrong morally and it is wrong tactically.

The bombings are wrong in international law because they have not been authorised in accordance with the United Nations Charter which is the appropriate authority, unlike the military operations during the Gulf War and in Somalia and East Timor (Rothwell, 2001).

The bombings are wrong morally because they kill and harm people who have had no involvement in let alone responsibility for the plane hijackings and suicide bombings in the US. Nor is it clear that the bombings will punish the people who are responsible for the plane hijackings and bombings—even if their identity is known.

The proper course is to ask the UN Security Council to establish a criminal tribunal.

The West’s bombing of Afghanistan is tactically wrong because it will simply provoke violent retaliation, as the US itself anticipates, establishing a cycle of violence such as we have seen in Northern Ireland and the Middle East. As the former Nürnberg prosecutor Benjamin B. Ferencz wrote:

There can be no peace without justice, no justice without law and no meaningful law without a court to decide what is just and lawful under any given circumstance (United Nations 2001).

The West’s swift, extensive and intensive retaliation for the terrible loss of some 7,000 lives in the US contrasts tragically with its response to the Rwanda genocide of 1994. Over a period of four months the United Nations withdrew what little presence it had in Rwanda, largely at the urging of the US, to expose Tutsi to the murderous Hutu militiamen, soldiers, and ordinary citizens. As a result some 800,000 Tutsi and politically moderate Hutu were slaughtered (Power, 2001).

While the West’s inaction (bordering on complicity) with the Rwanda genocide is no justification for future inaction, it does suggest that the West has double standards. It also invites questioning of what a proportionate response to the murder of ten times fewer people might be.

The proper immediate course is to ask the United Nations Security Council to establish an ad hoc international criminal tribunal, such as those tribunals established for the former Yugoslavia, Rwanda and Sierra Leone. We should take at face value the early statements by Taliban leaders that they would extradite anyone against whom credible evidence was presented. A strong example was set by Libya—also cast by the West as a pariah—which extradited those accused of the terrorist bombing of Pam Am flight 747 over Lockerbie, Scotland. If Afghanistan did not extradite persons an independent judicial process found should stand trial; the US may seek from the United Nations authority to extradite the accused by force.

The war against terrorism will delay measures to handle terrorist crime in a lawful, just, and civilised way.

For a less ad hoc way of handling these cases in the future, an international criminal court should be established, as proposed by a United Nations diplomatic conference in 1998. The Attorney-General, Daryl Williams, and the Minister for Foreign Affairs, Alexander Downer, have stated the Government’s intention to introduce legislation to ratify the Statute of the International Criminal Court and have released exposure drafts of bills to give effect to the statute in Australian domestic law (Commonwealth Government, 2000).

The ratification of the draft statute for an international criminal court and the Australian domestic enabling legislation were referred to the Commonwealth Parliament’s Joint Standing Committee on Treaties, but the reference for the committee’s inquiry lapsed with the dissolution of the House of Representatives on 8 October 2001 (Parliament of Australia, 2001). Interestingly, the United States sought to have the statute diluted during the drafting stage, and has not ratified it (Charlesworth 2000).

We should urge our new Parliament to ratify the draft statute for an international criminal court promptly, and we should try to persuade the US to reverse its decision not to ratify the statute. Supporting the United States’ war against terrorism reinforces it and other powerful nations in exercising extra judicial—if not illegal—force to achieve their ends, and delays even further the establishment of the bodies needed to handle terrorist crime in a lawful, just, and civilised way.

REFERENCES

Charlesworth, Hilary (2000) Statute of the international criminal court, submission to the joint standing committee on treaties, http://www.aph.gov.au/house/committee/jsct/ICC/sub33.pdf, 22 December.

Commonwealth Government (2000) Ratifying the international criminal court, http://www.dfat.gov.au/media/releases/foreign/2000/fa116_2000.html, 25 October.

Parliament of Australia (2001) Joint Standing Committee on Treaties inquiry into the 1998 statute for an international criminal court, http://www.aph.gov.au/house/committee/jsct/ICC/ICC.htm, 9 October 2001.

Power, Samantha (2001) Bystanders to Genocide, The Atlantic Monthly, September 2001, volume 288, no. 2; 84–108, http://www.theatlantic.com/issues/2001/09/power.htm

Rothwell, Donald R (2001) Sydney Morning Herald, 11 October.

United Nations (2001) Rome statute of the international criminal court, http://www.un.org/law/icc/general/overview.htm, Last updated on 8 October 2001.

Gavin Moodie is a graduate in law and philosophy. He has been a university administrator since 1975 at Melbourne, Deakin, Monash and Adelaide universities. He is currently head of quality and strategy at Victoria University of Technology and writes a regular column on university administration for the Australian Higher Education Supplement.

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