A Trial to End All Terrorism: How America Could have Won the War on Terrorism Before it Even Began, With the Trial of Only One Man

A Trial to End All Terrorism
How America Could have Won the War onTerrorism Before it Even Began, With the Trial of Only One Man
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1526872
The Windsor Review of Legal and Social Issues (WRLSI)
3rd Annual Law Student Conference
March 18-19, 2010
Omar Ha-Redeye
AAS, BHA(Hons.), OCGC, CNMT, RT(N)(ARRT)
J.D. Candidate, University of Western Ontario

Courtesy NATO

9/12/01 - Resolution 1368
9/28/01 - Resolution 1373
10/2/01 - Statement Lord Robertson
10/7/01 - Operation Enduring Freedom
11/14/01 - Resolution 1378
12/20/01 – Resolution 1386, Bonn Agreement

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27June 1986, [1986] ICJ Rep. 14.

Claims to self-defence must be supported by a) credible evidence of an armed attack, and b) the identity of the attacker (para. 57)
Simply providing financial support or arms to a group does not in itself constitute an “armed attack” by international law.
Must be sufficiently in control of contras to the point where they could be held responsible for their actions. (para. 116)
Can violate international law through interference with the internal affairs of another country

3. U.S. itself has taken the view that failing to report to the Security Council while invoking Article 51 contradicts any claims to self-defence (para. 235)
“States do not have a right of ‘collective’ armed response to acts which do not constitute an ‘armed attack.’” (para. 211)

What is an “Armed Attack?”
Definition of Aggression, UN GA Res. 3314, UN GA, 29th Sess.
first use of armed force by a State
allowing another State to use its territory
irregulars by State carrying out aggression
Security Council
Comments by Canadian Delegation, Oct. 10, 1974
James Keeley(UofC); Link between Taliban and Al-Qa’ida

“Laws” of Afghanistan

Adapted from M. CherifBassiouni, “Protection of Diplomats Under Islamic Law” (1980) 74 A.J.I.L. 609 at 613-614.

Bars to Prosecution
Afghan Constitution
No citizen of Afghanistan accused of a crime can be extradited to a foreign state unless according mutual agreement and international conventions that Afghanistan has joined.
presumption of innocence, due process, and security of personal freedom
But required to ensure territory was not used to act against the rights or create injury to other states (Corfu Channel, Trail Smelter Arbitration)

Taliban Response to 9-11
Unequivocally condemned attacks
“Anyone who is responsible for this act, Osama [bin Ladin] or otherwise, we will not side with him.” – Taliban Minister of Information
"We want to tell the American children that Afghanistan feels your pain. We hope the courts find justice.“ - Mullah Abdul Salam Zaeef
Sept. 19, 2001 extradition offer
International recognition
Remove UN Sanctions

Policy Implications
Geneva Conventions Protocol I to: criminalize grave breaches, prosecute, extradite, or provide assistance to other states with judicial investigations
1998 Arab Convention for the Suppression of Terrorism and the 1999 The Convention of the Organization of the Islamic Conference on Combating International Terrorism
Article 2(a) exception for the purposes of self-determination

Reaching Consensus on Terrorism
Just war theory does exists in shari’ah
Forbids killing women, children, livestock
Concept of binding consensus, ijma’a
February 10, 2003 Rome Statute signed
1987 International Islamic Court of Justice (IICJ)

“Rand was convinced that the law, the rational law, could resolve all human conflict. There was... too much self-dealing and greed in our society. ‘Obstinate and unreasonable demands or resistance by any group can serve only to weaken the community as a whole. We are no longer in a society of stagnation and poverty… the deepest root of social decay lies in the realm of money.’ Greed, Rand explained, threatened peace at home and abroad because it prevented social justice and the fair distribution of society’s riches.” - William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand (Canada: University of Toronto Press, 2009) at 402.

A Trial to End All Terrorism: How America Could have Won the War on Terrorism Before it Even Began, With the Trial of Only One Man

by Omar Ha-Redeye on Mar 27, 2010

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A Trial to End All Terrorism: How America Could have Won the War on Terrorism Before it Even Began, With the Trial of Only One Man — Webinar Transcript

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