To the Editors:
In Stanley Hoffmann’s characteristically thoughtful essay “On the War” [NYR, November 1], he writes that “legally, the International Criminal Court (resisted so reflexively by American ‘sovereigntists’) should be allowed to extend its jurisdiction to crimes against humanity committed by terrorists.”
Actually, the statute for the court already provides it with such jurisdiction. The definition of crimes against humanity encompasses murder “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The statute goes on to say that “‘attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts…pursuant to or in furtherance of a State or organizational policy to commit such attack.” (emphasis added)
What happened on September 11 meets this definition not only because multiple acts took place that day that resulted in widespread murder, but also because it appears those acts were committed pursuant to the same organizational policy that led to the murder of large numbers of civilians in Kenya and Tanzania. If it turns out that the same organization sponsored the dissemination of anthrax through the mail, that would add to the case that what took place constitutes crimes against humanity under the statute for the International Criminal Court.
As I write, forty-three governments have ratified the treaty for the ICC. It appears certain that the necessary sixty will ratify by 2003 and increasingly likely that this process will be completed in 2002. When it is created, however, it will only have prospective jurisdiction. And, if the United States were a party to the treaty, it would have the right to try those responsible for the events of September 11 in its own courts and the ICC could only act if the United States defers to it.
If one believes, as I do, that international prosecution is desirable, an ad hoc tribunal—such as the tribunals for ex-Yugoslavia and Rwanda—is needed. Though establishing another such tribunal would be cumbersome and expensive, the costs should be weighed against the advantages of international criminal condemnation of the terrorists.
Open Society Institute,New York City
November 29, 2001