Trying Bin Laden

Oct. 15 - America says it wants justice for last month’s attacks on Washington and New York. But how to persuade Afghanistan to surrender the principal suspect, Osama bin Laden? One option: pledge a hearing before an international tribunal especially created by the United Nations along the lines of the courts already hearing cases arising out of the conflict in former Yugoslavia and the massacres in Rwanda. To bin Laden’s Taliban hosts, the promise of an impartial trial, with Islamic jurists among the judges, might be an acceptable compromise. The proposal may shortly go before the U.N. General Assembly. Among its leading advocates is William Pepper, an American who practices international, human rights and constitutional law and who has close ties to the Pakistani government. Pepper spoke to NEWSWEEK’s William Underhill in London. Excerpts:

NEWSWEEK: There are already national courts that could indict and try those believed responsible for last month’s attacks. What purpose would an international tribunal serve?

Pepper: If such a tribunal were established, and it was agreed that bin Laden should be subject to it, there would be no need for further military action. That would allow the food convoys to roll again. After Nov. 7, when the winter starts, that isn’t going to be possible and the amounts we are talking about are astronomical: 600,000 tons of food are needed.

Isn’t it naïve to think that these states harboring the alleged culprits would be willing to surrender those charged?

It seems to me that any nation that is sheltering people who commit these kinds of crime would find it very difficult [to continue] if there was an established tribunal, under U.N. auspices, which included jurists from the Islamic world. The task of getting people before tribunals is always a difficult one, but if someone is duly indicted or charged, then the burden is reversed. It falls on the state that is holding them to justify itself. All that we have now is a range of allegations and alleged evidence which has not been confirmed or given a stamp of approval by a juridical body or independent tribunal.

It may still not prevent the Taliban from trying to protect those like the alleged criminals in their midst, but it makes it increasingly difficult for them to stand up against the nations of the world. I would also have thought that someone like Osama bin Laden, who has claimed not be responsible for these attacks, might very well say, ‘Don’t shoot me like a dog. Give me my day in court before an impartial international tribunal.’

Won’t Americans want to see bin Laden tried before an American court?

The Americans might want it to be, but the reality is that there are certain events and procedures in the world that they cannot control. If they want an event to take place, they are simply going to have to compromise as they did with the Lockerbie trial. It is also important to keep in mind that over 80 nations lost nationals in the World Trade Center, so there is a vested interest around the world in justice being realized here.

Aren’t you adding to a class of cases that dispense with trial by jury?

That [principle] is overruled by the inability of the courts in the country where the crimes took place to provide an impartial proceeding. [Besides,] Anglo-American jurisprudence provides for jury trial, but that is not the case for most of the world and it is not the format for The Hague and Arusha tribunals [on Yugoslavia and Rwanda].

Wouldn’t American public opinion be against the inclusion of Islamic jurists?

You are dealing with people who are devoutly Islamic, so you have to have an Islamic presence. Whether Americans like it or not, Muslims constitute around 1 billion people on the planet and Sharia [Islamic] law is a major area of developed law. I think there is a great deal of ignorance about Islamic law on the part of Americans—and of western jurists. In a case like this, if they came to understand some of the premises, they might well find it more their liking. I’m not speaking in favor of these provisions because my grounding is in Anglo-American law, but the rules on acceptable evidence, for example, can be much less onerous under Sharia law than in Anglo-American jurisprudence.

If this incident is treated as a special case, won’t there be many more that demand similar handling?

I would envisage that this kind of special tribunal, dealing with particular crimes against humanity, would ultimately collapse into the International Criminal Court (planned by the U.N.). The court would be available to adjudicate charges of such crimes wherever they occurred and would have to have regional branches around the world.

[To date] the U.S. has been adamantly opposed to such a court. A lot of that has to do with distrust. It might be that if this tribunal were to perform in a proper, professional judicious manner, the U.S. might well see the value of a [permanent] body and slowly come around to supporting it.

How do you rate your chances of success?

If [the proposal] went to the Security Council in the first instance, it would probably be vetoed. The strategy therefore is to have it placed before the General Assembly so that the nations of the world—189 of them—will have an opportunity to consider it and to vote. My sense is that the General Assembly will overwhelmingly approve such a resolution. I think that the Security Council will then be hard pressed not to be responsive.

Does the use of the word ‘war’ complicate the legal issue?

From a precise legalistic point of view, it doesn’t complicate it. It is loose-lipped jingoistic rhetoric. In a non-legal sense they are saying this is a war. This term war has been used before in the same way. In America at one time they said that there was a war on poverty. It’s no more a war against Afghanistan than it was a war against Sudan, when 14 cruise missiles were used to level a pharmaceutical company [in 1998].

© 2003 Newsweek, Inc.