What's
it about?
In the wake of the tragedy of September 11th (11/9), many of us are looking at issues,
both political and personal, that have never entered our thoughts. So how about the legal
issues - for instance, what is the law of war, and what might be the legal consequences
when our cities are threatened with attack by international terrorists?
Let's ask some hard questions: Will our civil liberties be curtailed to launch
anti-terrorism measures? Will increases in covert surveillance, or more stringent search
and seizure procedures, be an unanticipated consequence of the events of 11/9? Where do we
draw the line drawn between national security and privacy? Should we take a longer, harder
look at those in our society who appear to be of Middle-Eastern descent? And
perhaps most interestingly, what is legal and what is not in retaliation against terrorist
attacks?
Is war legal?
Your country is attacked - what can your leadership legally do in response?
These sorts of issues are covered by what is known as "international law", which
suggests some parameters in the conduct of armed conflicts. For instance, international
law proscribes killing the wounded, torturing the enemy, the poisoning of wells, rivers
and foods; it recommends respect for the corpses of the dead. You get the idea.
No doubt many people will ask the basic question - where does the United Nations fit
in? There will be many, perhaps most in Australia and the U.S., who believe that there is
an inherent right to self-defence in our international conduct; and the more
diplomatically inclined who believe there must be a vote of the Security Council before
any armed response takes place.
So what does international law say about self-defence, There are two ways of looking at
it. Article 2(4) of the United Nations Charter provides:
All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
All well and good, but what does the UN Charter say about self-defence, which the
Americans claim as the basis for their response to the attacks on September 11th? Try this
one: Article 51 states:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense 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. Measures taken by Members in the exercise of this right of self-defense
shall be immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international
peace and security.
Confused? Of course you are. This writer has now read six distinguished legal opinions
on the justification for the American response to the 11/9 attacks, and none of them have
much in common with each other.
Racial profiling
Following 11/9, there have been reports by the American-Arab Anti-Discrimination
Committee that Arab American airline passengers have been removed from commercial flights
because of fears by airline crew members and passengers. Do you think this is harsh, and a
breach of human rights laws? Of course it is, but you may be surprised to know that most
Americans (according to a recent Gallop Poll) believe people who look Middle
Eastern should undergo intensive security screening before boarding aircraft in the U.S.
This is an example of a principle known as "racial profiling". In other
words, a person is targeted for attention by the law because of their race or looks,
rather than as a result of actual behaviour.
Clearly this is an abhorrent notion to any fair-minded person, and officially has never
been accepted as a legitimate tactic for police forces in Australia or the U.S. Now, in
the U.S., there are moves to mount these sorts of investigations, especially in airports,
in the wake of the airline hijackings that preceded the attacks on the World Trade Centre
and the Pentagon.
Listening in
These times test our belief systems, and to many people (including this writer) create
genuine dilemmas. Take the Bush administration's anti-terrorism legislation package,
eventually passed in a curtailed form, which affects a variety of privacy and individual
rights. Among other things, the law expands federal wiretapping and electronic
surveillance authority and lowers the standards for evidence that investigators must meet
when seeking internet, phone, business, medical and other records from suspected
terrorists and the people with whom suspects come in contact.
Civil liberties advocates have ardently opposed the Bill, saying there is no evidence
to indicate the law would help prevent future terrorist acts - this may be fair comment,
because 11/9 and the Anthrax scare are the nominal reasons for its introduction. Under the
law, authorities must simply assert to a judge that they are seeking information in
connection with a terrorist investigation in order to obtain phone, business and
other records of suspects and their associates.
It is perhaps ironic that the 11/9 attack by terrorists may force Western democracies
to curtail civil liberties - which of course is one of the characteristics of totalitarian
governments. To completely protect ourselves from terrorists we would virtually have to
turn our cities into prison states, which no one wants. And yet we rightly seek
reassurance from our Governments, and trust that they will protect us from terror that is
capable of infiltrating our cities.
We can fight over the nuances of international law, but it appears to us that the U.S.
has a legitimate right of response to the events of 11/9. Clearly this does not mean that
any response, no matter how unlimited, is a legal response. There should be a military
objective that is concurrent with international law; there should be a clear distinction
between military and civilian targets; it must be proportionate and avoid unnecessary
suffering. This requires some forbearance by our leaders, and the political courage that
is commensurate with adherence to international law.
We'll give the final word to Duke University law professor Scott Silliman. He said,
"Customary international law and the United Nations Charter allow countries to use
individual and collective self-defense against a continuing threat. The force employed,
however, must be both necessary and proportionate. It must be necessary to show that there
is no other peaceful way to preclude further terrorist attacks against this country, and
it must be proportionate in that the amount of force being used is such that incidental
injury to civilians or damage to civilian property is not excessive when compared to the
concrete and direct military advantage anticipated."
Here at Lawspot we wish our Australian soldiers God's speed and a safe return.
By Geoffrey Winn
Creative Director
www.law4u.com.au