Richard Goldstone: Terrorists can be brought to justice only by legal means

'It would be tragic if the major democracies were now to become outlaws in reaction to 11 September'

If the Western powers are to bring the perpetrators of the 11 September outrage to justice under international law, then they must respect that law in their own actions. It would be tragic if, after coming so far in the application of law to international crimes, they were to throw it away by outlaw actions themselves.

For more than a century, humanitarian law (what used to be called the Law of War) has substantially advanced. The most extensive rules for the protection of civilians are to be found in the four Geneva Conventions of 1949. They have been ratified by 189 nations – virtually every member of the United Nations. They render criminal the failure on the part of political and military leaders to prevent war crimes.

They inspired the Security Council of the United Nations, in 1993, to establish the International Criminal Tribunal for the former Yugoslavia, and, in 1994, for Rwanda.

In recent years there has also been a rapid development in the recognition and application of universal jurisdiction for the most heinous war crimes. This has enabled domestic courts to indict war criminals not on the traditional basis of having regard to where and when the crime was committed but rather on the nature of the crime. Thus, a Spanish court was able to indict Augusto Pinochet for crimes committed in Chile almost two decades earlier.

These developments have combined to end a period in which war criminals had effective impunity. The major Western powers have played a key role in these endeavours. Without the political and economic support of the United States, the two UN tribunals would certainly have foundered. And the Rome diplomatic conference that approved the treaty for that court in 1998 would not have taken place. The treaty has now been signed by 139 nations, and 38 of the 60 ratifications needed to bring the court into operation have been received. It is confidently expected that the remaining 22 ratifications will be made in the next 12 to 18 months.

These developments have resulted in a considerably heightened interest in humanitarian law. Hardly a day passes without references in the media to war crimes and war criminals. Witness the international interest in the indictment of Slobodan Milosovic at a time when he was a head of state. Perhaps the greatest boost to the recognition of humanitarian law was the respect accorded to it by the commanders of the Nato forces in the execution of their military campaign against Serbia in consequence of the ethnic cleansing of the Kosovar Albanians.

It would be tragic indeed if the major democracies were now to become outlaws in the face of the tragic events in New York and Washington on 11 September. These have understandably caused outrage and anger in the United States, with calls for revenge against those thought to have been responsible. That outrage and anger is shared by decent people all over the world, and is growing in the light of the consequences, which are affecting the lives and livelihoods of so many people.

A crucial step in the direction of enforcement of international humanitarian law was the action taken by the Security Council in setting up the two international war crimes tribunals for the former Yugoslavia and Rwanda. It is crucial also, in this context, for the powerful nations to adhere to the provisions of international humanitarian law. The sanctioning of the assassination of suspected war criminals and unlawful attacks on innocent civilians would clearly be in violation of international law.

Anger and cries for revenge, no matter how provoked, do not justify unlawful retaliation. To act contrary to the law is to signal defeat at the hands of terrorists. That is precisely the reaction that they seek to provoke. The breakdown of international law and order, and the chaos it would bring in its wake, is their goal. They must be deprived of achieving it. The investigations, which have been launched to ascertain the source of the acts of terror, and the careful planning of responses to them, are hopeful signs in these anxious days.

The events of 11 September 2001 should be a clear signal to Washington that acceding to the Rome Treaty is in the interests of the people of all countries who wish to wage a war on terrorism. If the International Criminal Court were functioning today, it would only have jurisdiction over those responsible if the United States, where the crimes were committed, or the countries that are shielding the perpetrators, had ratified the treaty.

The Rome Treaty limits jurisdiction to nationals of a nation that has ratified it and to criminals who perform their criminal conduct on the soil of a country that has ratified it. The court, when it does start its work, will not be able to function effectively without the widest support from the nations of the world.

The author was the chief prosecutor of the UN war crimes tribunal for the former Yugoslavia and Rwanda