Advisory Opinion To The International Court Of
Justice Sing The Legality Of The Extradition Of Osama Bin Laden Essay, Research Paper
Overview
The issue of international terrorist act is one that has engulfed the planetary community. With terrorist act on the addition, we have seen that its importance has increased. Whether domestic or international in nature, terrorist act is holding an ever-increasing impact upon the international community. The United States has fallen victim to Acts of the Apostless of terrorist act late, most notably the 1995 bombardment of the Alfred P. Murrah Federal Building in Oklahoma City, OK, and the 1998 bombardments of U.S. Embassies in Kenya and Tanzania. Upon probe, it was revealed that the embassy bombardments were linked to Osama Bin Laden, a former Saudi Arabian National whose inordinate bank histories fund a world-wide terrorist operation.
Further probe revealed that Bin Laden was populating in Afghanistan in a cantonment protected by his ain 200-man private ground forces and a sub-unit of the Taliban, a quasi-religious organisation runing within Afghanistan s boundary lines ( MSNBC, 10/12/99 ) . The United States, backed by other states who have had terrorist onslaughts related to Bin Laden, appealed to the United Nations Security Council to name for the extradition of Osama Bin Laden for test.
In response to the petition, the United Nations Security Council nem con adopted declaration 1267 on October 15, 1999. The declaration called for countenances to be placed on Afghanistan effectual November 14, 1999 unless the Taliban turned over suspected terrorist Osama Bin Laden to the appropriate governments. Bin Laden is presently a suspect in funding terrorist activities in nation-states such as Algeria, Jordan, Egypt, Israel, Kenya, and even the United States of America. Worldwide intelligence webs have been trying to keep changeless surveillance of him in order to assist discourage farther Acts of the Apostless. However, he is still free, protected by the Taliban, who portion many of the same fundamentalist beliefs with him.
International Law has established several processs for the extradition and test of international terrorists. Presently, there are 11 paperss of international jurisprudence, which address the issue states duty for battling terrorist act ( USIA, Feb. 1999 ) . Bearing in head the precedency established in international jurisprudence every bit good as the nature of these activities that have been associated with Osama Bin Laden, it is appropriate to enforce countenances upon the Taliban for the resignation of Osama Bin Laden to the proper governments.
I. History of International Terrorism
International terrorist act has changed in construction and design over the centuries. Judaic Zealots conducted runs against the Romans in the first century AD, and the Hashshashin, a Shi ah Muslim group who gave us the word bravo, consistently murdered those in places and leading during the nineteenth century ( CSIS, July 1999 ) . The modern age of terrorist act began in the 1960 s. International terrorist act in its current signifier began in 1968. As the 1970 s passed by, the detonation of extremist groups and related incidents sparked a new consciousness of the dangers of terrorist act. In the 1980 s, Canada was the victim of several terrorist onslaughts carried out by Armenian and Sikh extremists, including a bombardment of an Air India flight arising in Toronto, which exploded off the seashore of Ireland, killing 329 people ( CSIS, July 1999 ) .
The 1995 Sarin gas onslaught by the Aum Shinrikyo Cult in a Tokyo metro marked a new threshold in international terrorist act. For the first clip, people began to recognize that similar groups could utilize arms of mass devastation or program onslaughts to bring down maximal casualties. The long-run effects of exposure are yet to be determined, but preliminary trials of 18 victims conducted in January 1998 showed that their sense of balance was affected by the nervus gas ( ACOEM, January 1998 ) .
II. Status of Bin Laden
At present, Bin Laden controls a comprehensive international terrorist web, all financed through Bin Laden s personal luck. His central offices are located in Afghanistan, and are protected by legion Taliban soldiers. While tensenesss between Bin Laden and Taliban members have become labored since August 1998, he however has remained free from gaining control to this point. However, Security Council Resolution 1267 does so name for Afghanistan to turn him over to the proper international governments.
Bin Laden is officially a adult male without a state, as Saudi Arabia pulled his passport in 1994 amidst allegations of funding insurgent 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 developing cantonments in cooperation with the NIF ( ERRI, June 1998 ) . After May 1996, his exact whereabouts have been unknown, with rumours puting him in topographic points such as Yemen, in Saudi Arabia with a false passport, even captured by the Afghanistan authorities. Bin Laden issued three Fatwas naming for a Holy War against U.S. Forces in April 1996, February 1997, and February 1998. He is presently suspected in Acts of the Apostless including the World Trade Center bombardment, 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 jurisprudence, even precedency established by this really tribunal, indicates that the procedure of conveying Osama Bin Laden to test is legal. Numerous conventions and pacts support this action, both globally and regionally every bit good. The first convention which applies is the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, brought into consequence on February 20, 1977, with 26 signers and 126 parties to it. This convention can be applied specifically to the 1998 bombardments of the U.S. embassies in Kenya and Tanzania.
Article I of the Convention defines internationally protected individuals as any representative or functionary of a State or any official or other agent of an international organisation of an intergovernmental character who, at the clip when and in the topographic point where a offense against him, his official premises, his private adjustment or his agencies of conveyance is committed, is entitled pursuant to international jurisprudence to particular protection from any onslaught on his individual, freedom or self-respect, every bit good as members of his household organizing portion of his family. Bearing in head the fact that these bombardments did happen at official edifices, these Acts of the Apostless fall under this convention. Article 7 farther provinces that the nation-state which houses the alleged wrongdoer shall either deliver him for test or keep a test on their ain dirt. This pact lays out the definition of protected individuals and establishes a codification of behavior for conveying such felons to test.
The following convention that holds precedency in this state of affairs is that of the International Convention for the Suppression of Terrorist Bombings. The convention provides for one freedom: if the alleged act occurs within a province in which the wrongdoer and the victims both reside and the alleged wrongdoer is still in the province. For illustration, the bombardment of the U.S. Federal Building in Oklahoma City, Oklahoma is an illustration of an act that is exempt from the commissariats of the convention. However, Osama Bin Laden does non fall under this freedom. Therefore, Articles 5, 6, and 7 straight use to the state of affairs at manus. Furthermore, Article 9 addendums Article 7 of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. Bearing in head 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 straight be applied to Afghanistan, as they were one of the chief signers to it. This convention non merely reiterates support for the old conventions mentioned here, but for legion others every bit good. This convention uses all old international pacts sing terrorist act as precedency, and so physiques on them. Furthermore, this Convention does non name for the application of Islamic jurisprudence over Anglo-Saxon jurisprudence. Since the OIC Convention does non conflict with international jurisprudence conventions antecedently established by the United Nations, Afghanistan is farther edge to this convention.
IV. Summary
The primary duty of the UN Security Council is to keep international peace and security. Under Article 24, the Security Council has primary duty field-grade officer
R keeping international peace and security. The Security Council used their powers under this Article, every bit good as Article 24, to go through declaration 1267 naming for countenances against the Taliban. Bringing Osama Bin Laden to test for his actions was a agency by which the United Nations Security Council took steps by which to guarantee security.
The call by the Security Council to convey Osama Bin Laden to justness does hold its virtues, and is lawfully justified under current international jurisprudence. Bin Laden has been implicated in Acts of the Apostless of terrorist act all over the universe, and his fiscal backup, while weakening, is still considerable. By acquiring Afghanistan to turn Bin Laden over to the proper governments, a step of peace and security can be attained one time once more. By conveying him to test, these predominating instruments of international jurisprudence that apply to terrorism can be viewed in force.
V. Post-Session Opinion
After the particular session of the International Court of Justice, held on December 1, 1999, my sentiment sing the legality of enforcing countenances against the Taliban changed. After several hours of discoursing the virtues of this action and what other stairss should hold been taken, I now find myself in the unusual place of wholly altering my position on this issue. During the treatment, four chief inquiries became evident:
1. Were all other options attempted before enforcing countenances?
The first inquiry, sing what, if any, other options were foremost taken, was the one of paramount importance. Unless all other stairss had been taken, the Security Council would hold jumped the gun and moved excessively shortly to enforce countenances. While there was scattered grounds bespeaking that there had so been some kind of treatment between the U.S. authorities and the Taliban sing a trade for conveying Bin Laden to test, nil was certain. All grounds indicating to this fact pointed to the fact that neither side had tried excessively difficult. Further perplexing affairs is the fact that there was an deficient sum of information from any of the members of the panel that clearly proved whether or non all other steps had foremost been taken. Article 33 of the UN Charter was used repeatedly to exemplify the demand for these other stairss to be taken foremost.
Personally, I felt that while Article 33 did name for this, Article 41, which gives the Security Council authorization to step in after finding that a menace to peace exists under Article 39 of the Charter, authorizes the Security Council to utilize any steps short of military force, including the complete or partial break of economic dealingss ( UN Charter, Article 41 ) . Therefore, I felt strongly that the issue of whether or non other options had been considered was irrelevant. But the remainder of the group disagreed, and thought that since deficient grounds was available to find if other steps had been taken that the reply was no.
2. Who has legal power over Bin Laden?
This inquiry was besides interesting in that it called into inquiry who should be responsible for seeking Bin Laden if he is brought up for test. Since the bombardments in inquiry took topographic point in Kenya and Tanzania, the commission thought that they would hold had first chance to seek him. However, the fact that these bombardments took topographic point at United States Embassies meant that the US besides had legal power. This fact, although unimportant in the terminal, was mostly ignored after brought up briefly in the beginning of the session. Another inquiry impacting the legal power issue was the inquiry of whether or non the Taliban was the de facto authorities of Afghanistan. The fact that the Afghan representatives were non from the Taliban clouded this issue amidst inquiries of bid, control, and acknowledgment.
This inquiry was finally disconnected, as the voting members of the commission ( Kenya/Tanzania, Saudi Arabia and Afghanistan excluded ) could non make consensus on whether the Taliban or the United States should hold legal power in this instance. The Taliban had seemingly made overtures to United States functionaries sing a trade, but the US refusal to come to footings left inquiries. The reply to this inquiry was finally determined with the following inquiry.
3. Should Osama Bin Laden be extradited?
The inquiry of whether Osama Bin Laden should be extradited was yet another point of contention. Since the Taliban was having small or no cooperation from other states in footings of garnering grounds from which to get down tribunal proceedings, it was determined that the Taliban should non be forced to deliver him at the present clip. However, the members of the commission were speedy to indicate out that while Bin Laden should non be extradited at this clip, steps should be taken to deliver him if the Taliban fails to get down tribunal proceedings within a sensible timeframe of undetermined continuance. This inquiry took into history the old two inquiries, which when combined led to the concluding inquiry of the eventide.
4. Be the determination to enforce countenances on the Taliban legal?
The inquiry at manus is the one the International Court of Justice Special Advisory Committee was asked to reply. Whether or non this action was legal under international jurisprudence could intend the difference between success and failure in footings of happening a manner to convey Osama Bin Laden to test for these bombardments. The commission decided by a 5-1 border that the countenances were non legal under international jurisprudence. As an interested party, I was unable to vote, but I felt that the commission had made the proper determination given the available information with a few exclusions.
The commission, prodded by the Justice from Afghanistan, considered Article 33 to be above and beyond anything outlined elsewhere in the Charter. This meant that the inquiry was merely considered from the one position, and non from the position of Article 44, which was besides brought up for treatment. Additionally, the fact that we had no clear information sing whether or non Kenya and Tanzania had given up their right to seek Bin Laden left the commission with inquiries sing who had legal power over the instance if it was of all time brought Forth. Finally, the fact that most of the justnesss agreed that there was deficient information to find whether all other steps were taken foremost was troublesome. I felt that without sufficient information either confirming or denying that other stairss has antecedently been taken, the determination to govern on the inquiry at all would put a unsafe case in point if carried out in the existent international Court of Justice. Therefore, I felt that any determination should hold been made merely after information was found clearly sketching what steps had and had non been taken by the United States and the Taliban in deciding this difference.
In decision, I felt that while the ICJ members did an exceeding occupation in circulating information and utilizing international jurisprudence to do a finding sing the legality of enforcing countenances, there should hold been more information available to do this finding. In most legal systems, efforts are made to obtain all available grounds before doing judicial determinations, and I believe that more information was needed, because I still have legion inquiries sing this issue on the whole.
Bibliography
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