Should Allied or anti- Taliban forces capture Osama bin Laden there will be a strong case for putting him on trial in America for the 11 September attacks. The same may not be true for Mullah Mohammed Omar who, unlike Mr bin Laden, is an Afghan national and whose alleged crimes are as much against his own people as against America.
Yesterday, Hamid Karzai, head of Afghanistan's new administration, made clear it would want a say in the prosecution of Mr Omar and others. Mr Karzai said: "I have given him every chance to denounce terrorism and now the time has run out. He is an absconder, a fugitive from justice."
But to which justice is Mr Karzai referring – American, international or Afgan?
America could demand that Mr Omar be handed over but the military tribunals that the US has set up to deal with al-Qa'ida terrorists may not be a suitable forum. And evidence amassed against al-Qa'ida may not be relevant to the prosecution of the Taliban leadership.
A compromise might be to bring al-Qa'ida and Taliban suspects before an international tribunal similar to that in The Hague for Balkan war crimes.Crucially, there is support from Arab lawyers for this.
But American public opinion remains a real obstacle. It would want the death penalty should Mr bin Laden be convicted, but the maximum punishment under international law is life imprisonment.