Relief workers in Afghanistan are concerned with the humanitarian effects of the war and the unusually cruel methods of attack, including the deployment of cluster bombs. The humanitarian efforts included meeting the food shortages that confronted millions of Afghanis in the approaching winter during a time of war and drought. One of the fundamental principles of humanitarian law is that aid must not be linked to political objectives. The dropping of food packages by the very powers that are bombing the nation is therefore not permitted. The bombing exacerbated the humanitarian situation, and the failure of the US news media to provide sufficient coverage of the humanitarian crisis further aggravated the crisis. Action that incurs the risk of mass starvation does not meet the requirements of proportionality and discrimination.

Despite some of the violations of international law that are taking place in the course of the war, there still remains the question of why the international response remained largely uncritical. A partial answer can be found in revisiting the context in which the world seemed to acquiesce to the use of force to respond to the egregious attacks on September 11.

There are two significant factors that have contributed to the muting of criticism. The first is the absence of any definition of terrorism in international law, which reinforces the ambiguous relationship between international law and terrorism. The second concerns the rhetoric of “good and evil,” which has provided the overarching framework in which decisions concerning the responses to the September 11 attacks and the subsequent bombing of Afghanistan have been made.

There are at least 12 international conventions dealing with acts that may be recognized as terrorist acts. In 1963 a convention was adopted concerning acts affecting safety aboard aircraft. Two conventions in 1970 and 1971 also deal with aircraft and criminalize hijacking or violent acts aboard aircraft. Other conventions that have been adopted cover the protection of diplomats, the taking of hostages, the protection of nuclear material, the safety of maritime navigation, the safety of fixed platforms on continental shelf, violent acts in airports, the marking of plastic explosives for the purpose of detection, terrorist bombings, and financing terrorism.

Only one treaty, the 1999 instrument on financing, has not yet entered into force. Several of the conventions have virtually universal adherence (at least 170 state parties), and most have substantial numbers of signatories. The United States has ratified all but the two most recent conventions on bombings and financing, although the Bush administration in the wake of September 11 submitted those to the US Senate for advice and consent. Afghanistan is a party to the first three conventions relating to aircraft.

In its September 28 resolution, the Security Council, employing its Chapter VII powers under the UN Charter, made instant law, among other things requiring all states to take immediate steps to suppress financing of terrorist operations and to deny “safe haven” to terrorists and their supporters.

Currently on the agenda at the United Nations are a convention on nuclear terrorism and a comprehensive convention that would at least consolidate and rationalize the existing instruments and perhaps do more. Yet the definition of terrorism remains a vexed issue.

Criteria must be developed to differentiate between terrorism and acting on the right to combat foreign occupation in the process of pursuing self-determination. Until 1990, South Africa’s African National Congress was banned and Nelson Mandela was considered a terrorist. Prior to 1993 the Palestine Liberation Organization was regarded as a terrorist organization. Later, the Palestinian Authority was recognized as a legitimate entity and has been engaged in peace negotiations with the United States and members of the Israeli cabinet. And today, Osama bin Laden, regarded in the West as the epitome of evil and a terrorist at large, is heralded in other parts of the world as a holy warrior and a hero. While it would be desirable to have a definition of terrorism, it is not clear that a generally acceptable one can be found in the near future. The result might be that specific acts like hijacking or nuclear terrorism, which nation-states find threatening, will continue to produce a steady growth of treaties addressing those particular acts.

The Rule of Terror

There remains a reluctance to address the complex challenges facing international law in the rush to justice. There is a reluctance to unpack the causes of terrorism, which implicate the very countries that are currently pursing the war against terrorism. The United States’ alignment with dictators, backing of corrupt regimes, and abrogation of democracy in the ostensible pursuit of democracy have all exposed the hypocrisy of the United States’ commitment to the rule of law and its potential role as a humanitarian superpower. The rhetoric deployed to distinguish “us” from “them” and the excessive zeal in casting the terrorist as foreign and “other” come from the refusal to acknowledge the complicity of great powers in the construction of the very people who threaten international order. The destructive power of the United States has provoked an equally violent and destructive response. And bombing a country like Afghanistan may only serve to reinforce such convictions and ultimately lead to increasing violence coupled with further reprisals.

The urge to adopt simplistic explanations of terrorism has led to a dangerous trend toward empty rhetoric and appeals to prejudice and intolerance as the framework for determining who is a terrorist. Those who describe terrorists as people “who are the blind adherents of an evil cult” or who are “desperately clinging to an ignorant past that is impossible to preserve” engage in rhetoric that obscures more than it reveals. And yet any attempt to go beyond these plaintive explanations puts those who are looking for answers in the unenviable position of being regarded as apologists or supporters of terrorists.

There is a second reason why the international legal community has acquiesced in the current war, accepted its justifications, and refused to temper the US war efforts against an impoverished nation. The UN Security Council resolution, the invocation of Article 5 of the Washington Convention, and the joint resolution of the US Congress all occurred when the rhetoric of good versus evil, of the civilized versus the barbaric, was at its peak. In his initial response on the day of the attacks, US President George W. Bush concluded that the United States had been attacked by “evil” and that the United States was “the brightest beacon for freedom and opportunity in the world.” The word “harbor” entered into the international legal lexicon for the first time when Bush stated that the administration would make no distinction between the terrorists and those who harbor them. His remarks were wrapped in the ribbon of Psalm 23. He promised to help his country defend its values, its freedom, and “all that is good and just in our world.”