Advisory Opinion To The International Court Of Justice Regarding The Legality Of The Extradition Of Osama Bin Laden Essay, Research Paper

Overview

The issue of international terrorism is one that has engulfed the global community. With terrorism on the increase, we have seen that its importance has increased. Whether domestic or international in nature, terrorism is having an ever-increasing impact upon the international community. The United States has fallen victim to acts of terrorism recently, most notably the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, OK, and the 1998 bombings of U.S. Embassies in Kenya and Tanzania. Upon investigation, it was revealed that the embassy bombings were linked to Osama Bin Laden, a former Saudi Arabian National whose excessive bank accounts fund a worldwide terrorist operation.

Further investigation revealed that Bin Laden was living in Afghanistan in a camp protected by his own 200-man private army and a sub-unit of the Taliban, a quasi-religious organization operating within Afghanistan s borders (MSNBC, 10/12/99). The United States, backed by other nations who have had terrorist attacks related to Bin Laden, appealed to the United Nations Security Council to call for the extradition of Osama Bin Laden for trial.

In response to the request, the United Nations Security Council unanimously adopted resolution 1267 on October 15, 1999. The resolution called for sanctions to be placed on Afghanistan effective November 14, 1999 unless the Taliban turned over suspected terrorist Osama Bin Laden to the appropriate authorities. Bin Laden is currently a suspect in financing terrorist activities in nation-states such as Algeria, Jordan, Egypt, Israel, Kenya, and even the United States of America. Worldwide intelligence networks have been attempting to maintain constant surveillance of him in order to help deter further acts. However, he is still free, protected by the Taliban, who share many of the same fundamentalist beliefs with him.

International Law has established several procedures for the extradition and trial of international terrorists. Currently, there are eleven documents of international law, which address the issue states responsibility for combating terrorism (USIA, Feb. 1999). Bearing in mind the precedence established in international law as well as the nature of these activities that have been associated with Osama Bin Laden, it is appropriate to impose sanctions upon the Taliban for the surrender of Osama Bin Laden to the proper authorities.

I. History of International Terrorism

International terrorism has changed in structure and design over the centuries. Jewish zealots conducted campaigns against the Romans in the first century AD, and the Hashshashin, a Shi ah Muslim group who gave us the word assassin, systematically murdered those in positions and leadership during the 19th century (CSIS, July 1999). The modern age of terrorism began in the 1960 s. International terrorism in its current form began in 1968. As the 1970 s passed by, the explosion of extremist groups and related incidents sparked a new awareness of the dangers of terrorism. In the 1980 s, Canada was the victim of several terrorist attacks carried out by Armenian and Sikh extremists, including a bombing of an Air India flight originating in Toronto, which exploded off the coast of Ireland, killing 329 people (CSIS, July 1999).

The 1995 Sarin gas attack by the Aum Shinrikyo Cult in a Tokyo subway marked a new threshold in international terrorism. For the first time, people began to realize that similar groups could use weapons of mass destruction or plan attacks to inflict maximum casualties. The long-term effects of exposure are yet to be determined, but preliminary tests of eighteen victims conducted in January 1998 showed that their sense of balance was affected by the nerve gas (ACOEM, January 1998).

II. Status of Bin Laden

At present, Bin Laden controls a comprehensive international terrorist network, all financed through Bin Laden s personal fortune. His headquarters are located in Afghanistan, and are protected by numerous Taliban soldiers. While tensions between Bin Laden and Taliban members have become strained since August 1998, he nonetheless has remained free from capture to this point. However, Security Council Resolution 1267 does indeed call for Afghanistan to turn him over to the proper international authorities.

Bin Laden is officially a man without a country, as Saudi Arabia pulled his passport in 1994 amidst allegations of financing subversive activities in Egypt, Algeria, and Yemen. Bin Laden fled to Sudan, where he began working with the National Islamic Front (NIF), led by Hassan al-Turabi. While in the Sudan, he financed three terrorist training camps in cooperation with the NIF (ERRI, June 1998). After May 1996, his exact whereabouts have been unknown, with rumors placing him in places such as Yemen, in Saudi Arabia with a false passport, even captured by the Afghanistan government. Bin Laden issued three Fatwas calling for a Holy War against U.S. Forces in April 1996, February 1997, and February 1998. He is currently suspected in acts including the World Trade Center bombing, a Saudi Arabian National Guard base in Riyadh, Saudi Arabia, and U.S. embassies in Kenya and Tanzania (MSNBC, 10/12/99).

III. Applicability of International Law

Current international law, even precedence established by this very court, indicates that the process of bringing Osama Bin Laden to trial is legal. Numerous conventions and treaties support this action, both globally and regionally as well. The first convention which applies is the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, brought into effect on February 20, 1977, with 26 signatories and 126 parties to it. This convention can be applied specifically to the 1998 bombings of the U.S. embassies in Kenya and Tanzania.

Article I of the Convention defines internationally protected persons as any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household. Bearing in mind the fact that these bombings did occur at official buildings, these acts fall under this convention. Article 7 further states that the nation-state which houses the alleged offender shall either extradite him for trial or hold a trial on their own soil. This treaty lays out the definition of protected persons and establishes a code of conduct for bringing such criminals to trial.

The next convention that holds precedence in this situation is that of the International Convention for the Suppression of Terrorist Bombings. The convention provides for one exemption: if the alleged act occurs within a state in which the offender and the victims both reside and the alleged offender is still in the state. For example, the bombing of the U.S. Federal Building in Oklahoma City, Oklahoma is an example of an act that is exempt from the provisions of the convention. However, Osama Bin Laden does not fall under this exemption. Therefore, Articles 5, 6, and 7 directly apply to the situation at hand. Furthermore, Article 9 supplements Article 7 of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. Bearing in mind that both of the conventions are entered into force, nation-states are to be held accountable to them, including Afghanistan.

Finally, the Convention on the Organization of the Islamic Conference on Combating International Terrorism, ratified in Tehran in December 1997 at a meeting of the Organization of the Islamic Conference, can be directly be applied to Afghanistan, as they were one of the principal signatories to it. This convention not only reiterates support for the previous conventions mentioned here, but for numerous others as well. This convention uses all previous international treaties regarding terrorism as precedence, and then builds on them. Furthermore, this Convention does not call for the application of Islamic law over Anglo-Saxon law. Since the OIC Convention does not conflict with international law conventions previously established by the United Nations, Afghanistan is further bound to this convention.

IV. Summary

The primary responsibility of the UN Security Council is to maintain international peace and security. Under Article 24, the Security Council has primary responsibility for maintaining international peace and security. The Security Council used their powers under this Article, as well as Article 24, to pass resolution 1267 calling for sanctions against the Taliban. Bringing Osama Bin Laden to trial for his actions was a means by which the United Nations Security Council took measures by which to ensure security.

The call by the Security Council to bring Osama Bin Laden to justice does have its merits, and is legally justified under current international law. Bin Laden has been implicated in acts of terrorism all over the world, and his financial backing, while weakening, is still considerable. By getting Afghanistan to turn Bin Laden over to the proper authorities, a measure of peace and security can be attained once again. By bringing him to trial, these prevailing instruments of international law that apply to terrorism can be viewed in force.

V. Post-Session Opinion

After the special session of the International Court of Justice, held on December 1, 1999, my opinion regarding the legality of imposing sanctions against the Taliban changed. After several hours of discussing the merits of this action and what other steps should have been taken, I now find myself in the unusual position of completely changing my view on this issue. During the discussion, four main questions became apparent:

1. Were all other options attempted before imposing sanctions?

The first question, regarding what, if any, other options were first taken, was the one of paramount importance. Unless all other steps had been taken, the Security Council would have jumped the gun and moved too soon to impose sanctions. While there was scattered evidence indicating that there had indeed been some sort of discussion between the U.S. government and the Taliban regarding a deal for bringing Bin Laden to trial, nothing was certain. All evidence pointing to this fact pointed to the fact that neither side had tried too hard. Further complicating matters is the fact that there was an insufficient amount of information from any of the members of the panel that clearly proved whether or not all other measures had first been taken. Article 33 of the UN Charter was used repeatedly to illustrate the need for these other steps to be taken first.

Personally, I felt that while Article 33 did call for this, Article 41, which gives the Security Council authority to step in after determining that a threat to peace exists under Article 39 of the Charter, authorizes the Security Council to use any measures short of military force, including the complete or partial interruption of economic relations (UN Charter, Article 41). Therefore, I felt strongly that the issue of whether or not other options had been considered was irrelevant. But the rest of the group disagreed, and thought that since insufficient evidence was available to determine if other measures had been taken that the answer was no.

2. Who has jurisdiction over Bin Laden?

This question was also interesting in that it called into question who should be responsible for trying Bin Laden if he is brought up for trial. Since the bombings in question took place in Kenya and Tanzania, the committee thought that they would have had first opportunity to try him. However, the fact that these bombings took place at United States Embassies meant that the US also had jurisdiction. This fact, although unimportant in the end, was largely ignored after brought up briefly in the beginning of the session. Another question affecting the jurisdiction issue was the question of whether or not the Taliban was the de facto government of Afghanistan. The fact that the Afghan representatives were not from the Taliban clouded this issue amidst questions of command, control, and recognition.

This question was ultimately split, as the voting members of the committee (Kenya/Tanzania, Saudi Arabia and Afghanistan excluded) could not reach consensus on whether the Taliban or the United States should have jurisdiction in this case. The Taliban had apparently made overtures to United States officials regarding a deal, but the US refusal to come to terms left questions. The answer to this question was ultimately determined with the next question.

3. Should Osama Bin Laden be extradited?

The question of whether Osama Bin Laden should be extradited was yet another point of contention. Since the Taliban was receiving little or no cooperation from other nations in terms of gathering evidence from which to begin court proceedings, it was determined that the Taliban should not be forced to extradite him at the present time. However, the members of the committee were quick to point out that while Bin Laden should not be extradited at this time, measures should be taken to extradite him if the Taliban fails to begin court proceedings within a reasonable timeframe of undetermined duration. This question took into account the previous two questions, which when combined led to the final question of the evening.

4. Was the decision to impose sanctions on the Taliban legal?

The question at hand is the one the International Court of Justice Special Advisory Committee was asked to answer. Whether or not this action was legal under international law could mean the difference between success and failure in terms of finding a way to bring Osama Bin Laden to trial for these bombings. The committee decided by a 5-1 margin that the sanctions were not legal under international law. As an interested party, I was unable to vote, but I felt that the committee had made the proper decision given the available information with a few exceptions.

The committee, prodded by the Justice from Afghanistan, considered Article 33 to be above and beyond anything outlined elsewhere in the Charter. This meant that the question was only considered from the one perspective, and not from the perspective of Article 44, which was also brought up for discussion. Additionally, the fact that we had no clear information regarding whether or not Kenya and Tanzania had given up their right to try Bin Laden left the committee with questions regarding who had jurisdiction over the case if it was ever brought forth. Finally, the fact that most of the justices agreed that there was insufficient information to determine whether all other measures were taken first was troublesome. I felt that without sufficient information either confirming or denying that other steps has previously been taken, the decision to rule on the question at all would set a dangerous precedent if carried out in the real international Court of Justice. Therefore, I felt that any decision should have been made only after information was found clearly outlining what measures had and had not been taken by the United States and the Taliban in resolving this dispute.

In conclusion, I felt that while the ICJ members did an exceptional job in disseminating information and utilizing international law to make a determination regarding the legality of imposing sanctions, there should have been more information available to make this determination. In most legal systems, attempts are made to obtain all available evidence before making judicial decisions, and I believe that more information was needed, because I still have numerous questions regarding this issue on the whole.

Bibliography

American College of Occupational and Environmental Medicine. Tokyo Subway Gas Victims Experience Balance Damage. Chicago: ACOEM, 1998.

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Canadian Security and Intelligence Service. Counter-Terrorism. Ottawa: CSIS, 1999.

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Emergency Response and Research Institute. ERRI Terrorist Group Profile Special Report: Usamah Bin Mohammed Bin Laden (Osama bin-Laden). Chicago: ERRI, 1998.

http://www.emergency.com/bldn0798.htm

Organization of the Islamic Conference. Convention of the Organization of the Islamic Conference on Combating International Terrorism. Tehran: OIC, December 1997.

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http://www.msnbc.com/news/284591.asp?c1=1

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