Crime Against Humanity and Not War: Making Us Safer at Home and Stopping a Human Carnage Abroad – Article adapted from a speech presented at the NYC Chapter of the NLG – PDF

2001 Crime Against Humanity and Not War: Making Us Safer at Home and Stopping a Human Carnage Abroad

The Dangers of War

Speech given by Michael Ratner at NYC National Lawyers Guild Meeting on October 3, 2001

Thank you and thank you all for being here this evening. A couple of weeks ago I got a notice from my child’s school that said there would be a funeral for the Assistant Soccer Coach and that all of the children should wear their soccer uniforms. Another notice came from this school that a second grade kid’s father had died in the World Trade Center. Another child was wearing her missing father’s police jacket.

I thought about these children, and I thought about the fact that these children have lost their parents forever. Instead of making me want to go kill and bomb those who might be responsible I thought about other children and families who had parents and relatives. I thought about the killing of almost 1000 men, women and children murdered in the Sabra-Shatila refugee camp, I thought about those killed in Israel or the occupied territories, those in Cambodia, Rwanda and Iraq. It brought home to me emotionally and directly what it means to lose loved ones, what it really means to use force and what it really means to kill people. I cannot imagine a more painful emotion.

It made me think about the war the U.S. is planning and the people that will die. I don’t want any more children like those children at my kid’s school to lose their parents or those children in the Sabra-Shatila refugee camps; I don’t want more kids killed in Iraq; and I don’t want to see more weeping in our world. So, rather than make me hawk and want to bomb the alleged culprits, the attacks of September 11 actually have committed me more to the fact that we cannot use military force; that we must find a way to avoid it and find a peaceful means arrest, try and punish the guilty and prevent future attacks.

Throughout my legal career with the Center for Constitutional Rights and the National Lawyers Guild, working with my friend Jules Lobel, I have litigated the legality of every single war that the US has fought.

I have never won a case.

During the last war litigation that Jules and I were co-counsel on, actually the war before—that is the Iraq war—Alexander Cockburn wrote a letter me in The Nation; it said, “Michael, you know sometimes even leftists have to dial 911.”

The question that I am always asked in this current warlike atmosphere, “is this one of those situations?” “Is force necessary?” “Are there alternatives; and if there are alternatives, what are they?” “Is not force is the only alternative we can have right now?”

Now in one sense it is an unfair question because in the short term, to be very honest, there are not very many alternatives. We have all been put into a situation that has been created for 50, 100, maybe more years; and we are asked and expected in an instant to solve it and make ourselves safer. We are asked to figure out how to both arrest, or in the case of the United States, kill the people who did it, or who they think did it. We are asked to eliminate a terrorist network which the U.S. claims is out there, end future attacks on terrorism and make the whole world safe. Well, particularly in the short term, I don’t have the answer to that, and the U.S. government certainly doesn’t have the answer to that.

In thinking about this, what I have come to realize is that the consequences of the military attack that the United States is planning right now are so horrendous that they way, way outweigh employing a peaceful alternative, difficult at that might be. Not only are the consequences of war horrible, but there is no chance that what the war, bombings and killings is going to stop what we saw happen at the World Trade Center. I want to talk about some of those reasons that war in this situation is a terrible alternative. Before that, I want to give people a little bit of what U.S. and international law says about the these two options: war or peace.

The Legal Landscape: What about Congress, the UN and International Law

Congress passed a Congressional Resolution on September 20th that was probably one of the broadest, worst resolutions authorizing military force that I have ever seen our Congress pass. It essentially said to the President, “you can use military force to attack any country, organization, or person who, and they use a number of different terms, aided, assisted, harbored persons—a bunch of different words here to cover a broad range—in the September 11th attacks, and you can use that military force not just for that attack, but to prevent any future attacks.” The President can decide without going back to Congress which country, organizations and persons he wants to attack. He can start wars against supposedly all of the 37 countries where it is claimed that Bin Laden’s people or the Al Qaeda network is present or against anyone else he suspects of any level of involvement in the attacks of September 11 or any future attacks. He can do this without ever returning to Congress and without getting any approval from them even if he leads us into World War III. It is not what the framers of our constitution imagined; the constitution was drafted to avoid Presidential wars.

So it is legally and politically war by one person. Congress has given up any authority over war at this point. There is no time limit; they even gave the President a fat 20 billion dollar check to help him along in this war. They even gave up fiscal control. And when you think about the war mongers in the administration—Rumsfield and Wolfowitz, you should be very worried. Unfortunately, it is not something I can litigate or, despite my promise to never do another of these cases, I would.

The United States then went to the United Nations Security Council, but it did not request authority to use force as it did against Iraq. A nation can use military force for self-defense, but only for self-defense. Once the United Nations Charter was ratified, and it was by the United States, force cannot be used to retaliate or punish.

If you looked The New York Times editorial today, it actually had the word retaliate in it. You can’t do that. Under international law you can use force for self-defense but not for retribution. Here, the United States will argue that its use of force is self-defense; that there has been a series of attacks on the United States, including attacks on US people in the case of Saudi Arabia and the East African embassies. The US will argue, and people like me probably won’t get very far saying they don’t have some right to use self-defense. The argument can be made, but I think it is better as a policy argument than as a legal one.

On the other hand under Article 51, once you go to the Security Council, even in cases of self-defense, the Security Council can take over the so-called self-defense and country can no longer use self-defense except as authorized by the Security Council. As I said the US did go to the Security Council, but the U.S. tried to make sure that any Security Council action did not swallow a right of self-defense. While there is still technical argument that the entire matter is in the hands of the Council, it is just that, an argument among lawyers. The United States, of course, has been very careful to try and ensure that in every UN resolution reaffirms the right of countries to use self-defense. This is not to say, what the best policy would be; on that there is plenty to say.

So at this point the legal landscape is rather bleak, I am not saying I couldn’t come up with arguments. We can always come up with arguments. That is what lawyers are trained to do. The President does have broad authority certainly from our Congress and more or less from the United Nations; the U.S. can pretty much do what it wants to do.

The Consequences of War

Now, I want to give you some of the reasons why I think the military attacks that the United States is planning are really so horrendous and will make us less safe. The first is that dropping bombs on Afghanistan will cause more terrorism and it will be terrorism against us. I have little doubt about this. Even The New York Times and The New Yorker are writing about the “hate America” campaigns in Muslim countries.

We have a country Pakistan that is really close to the Taliban. Their intelligence and military works hand in glove with the Taliban; the phone system even runs through Pakistan. You have thousands, tens of thousands of people who are in sympathy with the Taliban. You have the actual person, the religious cleric sent to Afghanistan to negotiate the surrender of Bin Laden, returned from the trip and to his Mosque in Pakistan preaching that if America attacks Afghanistan, it is death to the Americans. In hundreds of Mosques throughout Pakistan, that is what is going on now. The minute we attack Afghanistan, we are not safer at all.

This is occurring in other countries throughout the world. In Indonesia you read about bands of people going through the streets looking for Americans and wanting them out of the country. Young men want to enroll in the war in Afghanistan against the United States; they want to come from Indonesia, Egypt, Saudi Arabia and elsewhere/ Then you have to ask yourself more broadly, have these kind of tactics of war worked before? Israel has been using military force for a long time against terror, particularly in the last few months. You have the ask yourself, do Israelis feel safer today than they did decades ago? The answer is obviously not. So it doesn’t work in the particular case and it apparently doesn’t work in the general case as well.

Then you look at a case like Libya where the United States bombed Libya supposedly because Libya had authored the killing of some American soldiers in a discotheque in Germany. Libya’s response, according to United States CIA officials, was to down the plane at Lockerbie, Pan Am 103. So you can see what happens here. It is a spiral of vengeance, a spiral of bombs [phonetic] that just continues. That is actually a primary reason for not using it. Only when the U.S. went to the U.N. did that spiral of violence end; only then did Libya had over the suspects. Remember as King said, “violence begets violence.”

A second reason which is written about almost daily in The Times and elsewhere is the destabilization of Pakistan, Saudi Arabia and Egypt. Now some might say this is a good thing. But unfortunately, because of US support for the repressive governments in those places, there are no democrats, liberals or progressives to take over. We could wind up with more than one Taliban regime. And remember, Pakistan has nuclear weapons. There seems to me a fair possibility Pakistan could fall. That may very well be what the people who did the attacks desired.

Third, assuming they really have evidence, which we will talk about, that Bin Laden was behind this with the Al Qaeda Network, it is very unlikely, in fact, probably impossible that they are going to eliminate the network by an attack on Afghanistan. If you believe what you read in our papers at all, 37 countries, 11,000 people trained, and we are attacking Afghanistan. That is not exactly going to end the problem.

Fourth, and this is something that is important, are the terrible tradeoffs to build this so-called coalition, which is really a coalition in name only. It has similarities with some of the bargain the US made with the devil to fight Communism. What the US did was say to countries that if you are against Communism, we don’t care whether you are a dictatorship, fascistic, repressive or genocidal; we do not care if you commit gross human rights violations, you are with us and therefore you can buy military equipment and commit atrocities against your people at home. This is going on already with our coalition “partners.” Look at Indonesia, all of a sudden Indonesia may is going to start getting hundreds of millions of dollar worth of arms; arms that has almost stopped because of its internal repression. We know where those arms will be used —against the people of Ache and others. That is going to happening throughout the region. Oman apparently will buy some two billion in arms including fighter planes and that wonderful military government of Pakistan. I assume it will be armed to the teeth. Every country that is with us, we don’t care if we continuing to support the worst dictatorships, if they are with us in this war, we are going to guarantee a miserable life and possibly death for their citizens. We are going to guarantee that someday those arms will be used against us as the Taliban is now doing.

A fifth factor is the lack of evidence and that is not a minor matter. Remember what happened when we bombed the Sudan; the US claimed it was a chemical factory; it turned out to be a pharmaceutical factory in Sudan. The United States never has come up with any evidence about that and won’t. Thousand in the Sudan have died as a result of not having medicines. Under international law we consider it necessary to have clear and convincing evidence before you can launch an attack like that. The United States certainly hasn’t done it in this case, Powell admitted a few days ago that they did not come forth with the Powell White Paper essentially because they didn’t have the evidence; they don’t have a case against Bin Laden and yet we are planning to bomb Afghanistan. Showing the evidence is also necessary to convince Muslims and Muslim countries that there is at least a basis for US actions. Bin Laden’s martyrdom will be all the more likely without such evidence.

A sixth factor is the worsening of an already desperate refugee crisis by U.S. threats to bomb. Already tens of thousands of refugees in Afghanistan are fleeing and the borders to other countries are closed. If and when bombing and war begin it is estimated that another million and a half refugees will head into the mountains. Because of the closing of the border food aid is not being delivered. Winter will arrive in the next three to five weeks we will see tens of thousands of deaths. This is simply unacceptable.

Finally, and I am sure we can all come up with more dire consequences, is the killing of innocents. Much of the Muslim world is quite angry with the United States already. When they see a lot of Muslim people, civilians, die, whether as refugees or from bombings, the situation is going to be far worse than it is today. We will be killing innocents to avenge innocents. It seems very unlikely that with the few targets in Afghanistan that the US will avoid killing a lot of civilians.

So we know war is bad and not just bad but dangerous for us and for the people of Afghanistan. It will also not do the job the US says it will. It will not wipe out terrorism, but prolong it.

The Short Term Alternative To War

The problem is what is the alternative to the military use of force? Is there a great and perfect alternative that will eliminate the threat in the short run. I wish I could say there was. No we don’t have a great alternative, but we have to put one forward that at least tries to steer us away from war; away from terrible consequences and no beneficial results.

The attack on September 11 should not have been called and treated as acts of war by the government. There is a legal argument that it is not, but more importantly there are political and policy arguments why labeling the attack as acts of war was a bad idea. It certainly makes it more difficult to form a coalition; now Pakistan will be at war with Afghanistan and so will other countries. It forces such countries into a choice that in some cases might be suicidal. It also mythologies the criminals who carried out the act; they are seen as having made war on the United States instead of as criminals. Of course, and this is not my topic tonight, domestically calling this war permits the government and others to argue for broader curtailment of our civil liberties.

There was and is another choice that could make us all safer. The attack was a criminal act, a crime against humanity under international law—the mass killing of a civilian population. It doesn’t lessen its seriousness. Crimes against humanity are what we tried the Nazis for at Nuremberg. It is a very serious crime, but it is not an act of war. Treat it as a criminal act, go to the United Nations and request the Security Council to establish a court to try the perpetrators of September 11. That court should have the power to investigate, extradite and issue warrants of arrests. I know there are some political issues around the UN setting up ad-hoc courts, but it is important enough to dissuade the US from war that I think it is acceptable to do so.

Now people will say wonderful idea, but how are we going to get them arrested? Of course this is a big question and is, again, debatable. It did work with regard to Libya and the bombing of Pan Am 103; Libya did turn over the suspects for trial. If UN persuasion through peaceful means failed, the UN could constitute a police or military force to arrest people, but it must be a real UN force not a fig leaf for the United States. The fact that UN approved, for example, the use of force in Iraq, that was mere fig leaf for the US. A real UN force is under the control of the UN and would have the power to arrest people against whom there is evidence and bring them to trial before the court. There may be some other alternatives, but it is probably the best one that we can argue for that can steer this country right now away from war and toward peace.

Examining the Root Causes of The Attacks

As I said in the short run there is not much to be done. Good police work is probably all we can hope for. Of course, in long run it is another question. It means looking at the root causes and doing it now. This is not to condone the crimes of September 11. Whenever I speak to this, people in the audience will say, “Oh Michael you are rationalizing it.” I am not. What I am saying is that to not look at the root causes is basically immoral. It is saying you are not going to look at why this happened and you are practically guaranteeing it is going to happen again. So it is basically immoral not to examine the why. Root causes of resentment toward the US may include our tilt in the Palestinian-Israel conflict, the use of the Persian Gulf as a U.S. base and support for corrupt, authoritarian regimes.

Secondly it is necessary for the US to end its utter unilateralism it has had in the world and its contempt for international institutions and agreements. This includes the international criminal court, our refusal to ratify the protocol to the Biological Weapons Convention, payment of our UN dues and a whole range of others. So there are numerous long term issues to focus us that can make this a safer and more just world not just for us but for all. In the short term the best alternative I have is a peaceful alternative: of using law and not war. Thank you.