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PAY TRIBUTE TO REASON AND THINK LONG-TERM:
REFLECTIONS ON THE 9-11 TRAGEDY

Professor Sienho Yee
University of Colorado School of Law
JURIST Guest Columnist

As the entire nation is preparing for some immediate, perhaps military, responses to the 9-11 Tragedy, some reflections on the long-term results of any possible responses may be sobering and beneficial.

As we know well, conflicts are inevitably manifestations of disharmony in society, and so it behooves us to consider what sorts of disharmony may have led to this tragedy and what antidotes would be most effective.

It is no secret that there exist in the world certain resentments and hostility against the United States. Whether such sentiments are justifiable or whether they are right or wrong is unimportant; what matters is whether such sentiments did in fact cause or contribute to the 9-11 Tragedy. It is obviously beyond anyone's capability to answer this question; some of the suicide notes left behind by the attackers, when made public, may give us a hint. Here I shall assume that such sentiments had something to with the 9-11 Tragedy and speculate as to what we can do about this.

The resentments against the United States may have built up partly because of the American successes and the special place that the United States occupies in the world. If so, it may be that the United States has to endure some sacrifices. A measure of humbleness may reduce the intensity of such resentments.

Such resentments and hostility may have also built up because of the perceived injustice that the United States has allegedly inflicted upon the world, the perceived unfairness that the United States has allegedly perpetrated, the perceived disregard that the United States has allegedly paid to the rule of law in the world, and the perceived go-it-alone and high-handed attitude that the United States government and citizens have allegedly exhibited towards the world at large and towards some segment of the world in particular. Without necessarily personally endorsing such perceptions, one might give as examples the following acts and conduct of the United States: refusing to pay its United Nations dues; pulling out of various international negotiations; walking out of the Racism Conference; its attitude toward the expansion of Israeli settlements in traditionally Palestinian territories; its role in the continuing sanctions on Iraq and the resulting misery of the Iraqi children and women; and its bombing of the Sudanese pharmaceutical plant without giving sufficient evidence for its alleged connection with bin Laden.

If such resentments and hostility toward the United States are the ultimate if not proximate cause for terrorism against the United States, immediate bombing retaliation may only satisfy the yearning for justice; it will not solve any problem. In fact, it will leave behind a long-term spiral of hatred and violence, against which anticipatory or preventive self-defense, whether lawful or not, will not be effective in modern life: the source of perpetrators can be unlimited and their ingenuity knows few bounds.

Under such circumstances, any effective response to the 9-11 Tragedy has to have three components: first, improve security measures to prevent future attacks; second, hunt down and punish the perpetrators; and three, project the image of a fair and rule of law friendly United States. Being an ivory-tower academic, I shall not speculate on how to improve security measures or hunt down the perpetrators. I shall here offer some thoughts on how the government can project the image of a fair and rule of law friendly United States in the immediate term as well as in the long term.

First of all, in attempting to punish the perpetrators, we must always give judicial process a chance. The magic power that an impartial judicial process has on building a rule of law society needs no emphasizing. Particularly instructive is the decision to bring the major war criminals to trial at Nuremberg after the Second World War, rather than to shoot them to death on sight. The Allies did so for a reason. When opening the trial, Robert Jackson, the Chief Prosecutor for the United States, stated:

The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.(1)
The same kind of tribute to reason is in order at this very moment. Such a course of action would show the world the United States is a fair and just nation and with tremendous strength. This route is worth considering particularly because the Taliban government has said, as reported by Reuters, that it is willing to negotiate with the Untied States and that it would surrender Osama bin Laden to an Islamic court if the United States presents convincing evidence of his involvement in the tragedy.

Secondly, the United States must lead the world to find a fair solution to the conflict between "Palestine" and Israel. The spiral of violence and hatred has been going on there for too long and the world seems to be inflicted with a sense of resignation. We must recognize that it is no longer a problem confined to the Israelis and the Palestinians. And I have a hunch, though I cannot prove it, that as long as this conflict lasts, there will be no end to terrorism in the world, despite the conspiracy of the world to keep silent on this score. The United States must act even-handedly in solving this conflict. Without attempting to be precise, one can say that the Palestinians have been demanding Jerusalem as its eternal capital for a Palestinian State, repatriation of all Palestinians refugees and full compensation. It is clear that these demands cannot be met in full, and it is our duty to find some compromised solution acceptable to all.

To make it possible to reach any compromise, it would seem that first of all one must remove the feelings of the Palestinians and indeed the entire Arabs that they have been violated. This would require three things: (1) courage on the part of Israel to admit that what it has done to the Palestinians is inappropriate (if the word "unlawful" is too hard to swallow), (2) readiness on the part of the Palestinians to accept such a vague statement and to accept that their concrete demands cannot be met in full, and (3) readiness on the part of the world to help meet those concrete demands to the best extent, without which the intractable conflict between the Palestinians and the Israelis cannot be resolved. A compromised solution could consist of the following: (1) a regime of shared sovereignty, which has served well the city of Brcko in Bosnia and Herzegovina, for the sacred sites in Jerusalem to ensure that they are open to all faiths, (2) a renunciation by the Palestinians of the demand for the repatriation of all refugees into Israel and full compensation, (3) a promise by Israel to repatriate refugees and to pay compensation to the best of its capacity, and (4) the assistance of every nation in the world to help resettle the refugees in "Palestine" (that is, Palestinian territories) or elsewhere and to provide a substantial amount of assistance to the Palestinians.

Thirdly, the United States government may have to reconsider its perception of national interest, the content of its foreign policy, and the ways and means of conducting its foreign policy. Every measure should be taken to ensure the United States act fairly and humbly in the world and shake off its image of "speak loudly and carry a big stick". Without attempting to provide a full recipe for how to act fairly and humbly, one can think of the following: building coalition and rallying support from around the world (which the United States has done from time to time) for its policy and plans for action; participating in international efforts rather than walking out; applying the same standard to the world without asking for exceptions for itself or its own citizens; and generally paying respect to the rule of law in the world.

More specifically, one may say that it would help if the United States ratifies the Rome Statute of the International Criminal Court and re-accept the jurisdiction of the International Court of Justice under the optional clause. Submitting oneself to the judgment of judicial tribunals has enormous positive effect on the perception of fairness. Sending the dispute on bin Laden to the International Court of Justice for a decision on the Taliban's duty to surrender him would be a big step in convincing the world of the fairness of the wounded giant -- the United States. Finally, increasing assistance to the poor countries to reduce poverty and to improve education can be a most effective weapon against terrorism.

Fourthly, every nation in the world has to learn a lesson from the Tragedy and might need to reconsider its recent re-moralization in international relations and international law.(2) The shrill voices of moral superiority, pitting "us" against "them", the "liberal" against the "non-liberal", normally contribute to the general atmosphere of hatred and hostility. On the other hand, as Montesquieu long ago taught us, soft manners and morals help to elevate humanity. Faced with a grim reality, we should not sacrifice our lives on the altar of some abstract sense of righteousness. To me, life is supreme.

One cannot be sure whether we could ever stamp out terrorism. One can only hope that the measures proposed above will go some way in the right direction to preventing terrorism, in the long term.

Notes

(1) 1. 2 Trials of German Major War Criminals 97-98 (Nov. 21, 1945).

(1) 2. See generally my article, "Towards an International Law of Co-progressiveness", in International Law in the Post-Cold War World: Essays in Memory of Li Haopei 18-39 (Sienho Yee & Wang Tieya ed., 2001).


Sienho Yee is Associate Professor of Law, University of Colorado School of Law, Boulder. All opinions are those of the author. He welcomes comments on this essay at JURIST@law.pitt.edu.

September 20, 2001

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Discussion

  • There is one glaring omission in your list of US injustices committed. That is the 78-day bombing campaign against Yugoslavia, in which the US military (with minimal help from other NATO countries) obliterated the entire Yugoslav civilian industrial infrastructure. Factories, chemical storage depots, government buildings, bridges, highways, electrical power stations and television broadcasting facilities, including the Belgrade television studios, were direct targets. Collateral damage included apartment complexes, hospitals and schools.

    If the US wants to lead a credible campaign against terrorism it must renounce its bombing of Yugoslavia, which was nothing less than a massive terror campaign against the Yugoslav people.

    Paul Surovel
    New Jersey

  • Mr.Yee, I am not a student of law or a lawyer, but if you post such an article as this, and ask for reply. Well, you're gonna get it. American citizens are furious about these attacks. I, for one, am not listening to reason for reasons sake. The civil liberties in this country are out of control. My point is, America for Americans first. Citizenship supercedes all other rights. In my neighborhood you don't whip my ass in my own front yard and get away with it. Or in any other yard in America, I hope. This is a street fight. Not a courtroom. These terrorists need to be served justice in their own front yards. If the world can't understand that, we truly do have too many lawyers.

    Jeff Hill
    Florida

  • Dear Prof.Sienho Yee,

    There is lot of substance in what you wrote.

    However, reason alone is not the factor which guides the decision making processs in the minds of the people. Two, history shows that sources of sufferings of the people are to be met with strength But on the whole you are write when you say that one needs a long term planning. The question is in what direction Confrontation or Coexistence?

    Joseph Gathia
    India

  • It was wonderful to stumble upon such a clear presentation of what I have been trying to formulate in my own mind. In this whole chaotic and confused situation at the moment I was delighted to read an essay which is professing sense rather than a knee jerk reaction. I only wish every member of the defense council including the President himself gets a chance to read this before making the big decision.

    FM Badiuddin
    Ireland

  • I found the essay to be rational and enlightening.

    There is a bit of a tiny groundswell that seems to have taken hold of various people here in the USA. I have been doing a lot of reading in the past week, and the recurring thought by these people is that we may be embarking down a path that will not lead us to our goals of a safe, secure, and terrorist-free United States; that instead, we will find ourselves in the middle of a war with an enemy without a face or a country or a true identity. I believe that your essay crystallizes the actions that we should be considering, as unpopular as they may be for ourselves and our allies. I cannot help but think that if the atrocities of September 11th had occurred elsewhere, in a country where we have good relations, would our outrage be similar? Would our resolve to fight the perpetrators be as strong? Or would we think in terms of bringing these criminal-terrorists to justice? Would we take the rational path or the path laden with highly emotional anger?

    Should we tolerate this act of war? No. But who is our enemy? And why have they taken this step against us. We must, in the short run, satisfy ourselves that we are defending ourselves. But in the long run, how do we avoid such acts in the future?

    I do not have answers such as you have written. But I do have grave concerns about the rationale of our actions. In that light, have you had similar responses from people that have read your essay? Are there many like me who realize that the path we now find ourselves on may be a one way path with no turning back, and puts one billion people in jeopardy? Has anyone in the US governament embraced this position that you have outlined? Does anyone recognize that there is surely a thread that ties this back to what was done in 1948 to Palestine, and that the hatred that has resulted has boiled to a new level?

    And finally, what can we do to get our governing bodies to consider alternatives other than an irrational war?

    Jim Frey
    San Francisco, California

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