December 6, 2001
How to try bin Laden is far from certain
Since Sept. 11, Americans and people living throughout the world have been adjusting to new realities and new questions. University Week has been exploring some of the issues of this new reality in a weekly question-and-answer column with faculty and staff in such fields as law, architecture, communications, information sciences and international studies. This week’s expert is Law Professor Daniel Bodansky, who teaches international law, foreign-relations law and international environmental law. Before joining the UW faculty in 1989, he worked as a legal adviser to the State Department.
University Week: If Osama bin Laden were captured alive today, what court would try him?
Daniel Bodansky: Virtually any country that had him could prosecute him; there’s a doctrine called universal jurisdiction for certain heinous crimes. But that could potentially bring about conflicts between different countries that want to prosecute. In this case, the U.S. would certainly want to have the trial here. This kind of thing was a big issue in the Lockerbie trial – the two men accused of planting a bomb aboard a Pan Am plane in 1988. Libya said, ‘We have the right to prosecute them.’ This set off long negotiations that finally led to the creation of a special court with Scottish judges in The Hague, Netherlands.
UWeek: So an international tribunal is an option here?
Bodansky: Well, no international court currently has jurisdiction. The International Court of Justice does not handle criminal cases. There is a new International Criminal Court but it isn’t established and operating yet. There are some special international tribunals out there now: chiefly the Yugoslavia and Rwanda tribunals. So the U.N. Security Council could create a new court, or confer jurisdiction on an existing court.
UWeek: What would be the advantage of a trial in some kind of international tribunal rather than in, say, U.S. District Court in New York?
Bodansky: There might well be wider acceptance of the verdict, internationally. If you try people in New York – which is certainly possible under U.S. law and international law – there’d be concern abroad about whether the evidence really stands up. This would be even more true if people were tried by secret military tribunals, as President Bush has proposed.
UWeek: The Bush administration and Congress already had been critical of the creation of the International Criminal Court.
Bodansky: The administration has been negative about this court, while at the same time it’s been supportive of other international tribunals, such as the Yugoslavia war crimes tribunal. During the Reagan and Bush I era, there was a fairly negative U.S. view about the International Court of Justice, which ruled against the U.S. over intervention in Nicaragua.
UWeek: Some commentators have pointed out that the Bush administration spent its first nine months criticizing several international accords – the Kyoto global-warming pact, biological weapons and land mines treaties – and then, since Sept. 11, the president has had to seek cooperation from many of the same nations that were involved in these treaties.
Bodansky: And don’t forget, our Senate rejected the Comprehensive Test Ban Treaty that the U.S. government had been pushing other nations to ratify. So there’s been a string of issues that have led to a certain amount of frustration with the U.S. government internationally. That kind of boiled over when the U.S. didn’t get elected to the U.N. Commission on Human Rights last year. And yet it’s a little less clear whether that frustration has any effect regarding the current situation. The Sept. 11 attack was such a horrific act that in many quarters there’s going to be a tendency to let bygones be bygones.
UWeek: And the U.S. government does seem lately to be embracing multilateralism in its military and political response.
Bodansky: I’m not sure that what we’re seeing is really a multilateralist approach. I don’t see the decisions being made in a collective way. It’s more like the U.S. makes the decisions and then asks other countries to cooperate. We lead, and they follow. This is a real contrast with the Gulf War and Bush I, where the U.S. sought Security Council authority for the military action. This time, there’s no talk of a new world order.
UWeek: So is the U.S. effort to eradicate the threat from bin Laden and al Qaeda ultimately a law enforcement problem, or a military one?
Bodansky: It’s now obviously being handled as a military issue. But even within that, there are still a lot of rules about the use of force. And, for the most part, those seem to be scrupulously followed by the United States. That includes such things as distinguishing civilian and military targets and handling of prisoners of war. According to press reports, military lawyers review the bombing targets. Plus, the U.S. did file formal notification with the U.N. that it was launching a military response in self-defense. But there wasn’t a lot of attention paid to this.
UWeek: Why does the United States seem so basically uninterested in deeper international cooperation?
Bodansky: Partly it’s because America is so big. Europeans are much more accustomed to the transfer of state sovereignty to international entities, like the European Union. In fact, as a legal doctrine, in many European nations international law is superior to national law, while in the United States, the legal doctrine is that international law is not superior.
UWeek: Do you see any prospects for change in the American go-it-alone attitude?
Bodansky: As the situation in Afghanistan shifts from the military action to the question of what happens next – reconstructing Afghanistan – there are already signs of a great willingness by the U.S. to engage the United Nations and form international partnerships. In the long run, this is a problem that requires an international solution.
UWeek: As a specialist in international law, you must be getting a lot of questions from the press and public these days.
Bodansky: Actually, I was expecting after Sept. 11 that there would be more. I started here at the UW in ’89, and remember being asked a lot in the press about the Panama invasion and the Gulf War. It’s instructive how different it is now. I think it’s because feelings are running so high – that we’re so clearly the wronged party. But outside our borders, these issues are still of high concern.
