Professor Hans Smit teaches International Arbitration, International Law and Transactions, Conflicts of Law and Civil Procedure at Columbia Law School. He is the former Director of the Parker School of Foreign and Comparative Law and is currently the Director of Columbia’s Center for International Arbitration and Litigation Law. Professor Smit has been a visiting professor at the University of Paris and has consulted on legal reform at the World Bank. He is also a member of the Royal Dutch Academy of Sciences and International Academy of Comparative Law. Professor Smit is an internationally renowned expert in the fields of International Law and Arbitration and has published numerous books and articles on International Arbitration and International Law and Procedure.
Commentary by Professor Hans Smit
I have to confess that I am coming to you today under false pretenses. I know nothing about terrorism, although some of my students say that I practice it in the classroom. I do know something about international dispute resolutions. Because I am a Dutchman, by the way, I am an alien who, according to Mr. Wildes, is entitled to a limited measure of protection of due process. Actually it does not concern me very much because Holland will very gladly take me back.
I thought, how can what I know about international dispute resolution without touching upon the problems of terrorism? Now, negotiation doesn’t seem to be a very realistic possibility. We invite the terrorist to the negotiating table and Mr. Ashcroft will quickly in fear of the scene, declare an enemy combatant and we will never see him again. Therefore, terrorists are not likely to join the exercise but adjudication may be a possibility.
It is interesting, I have been in fair number of cases in which sovereign states adjudicated and arbitrated claims by private persons and private corporations that were of essential importance to their national economy. It was made clear to me that it was a very felicitous way of seeking to resolve tensions. To have people come together, address a tribunal with a measure of detachment, at least proclaimed impartiality, and to work out a solution.
In national arbitration, the procedure is that each party appoints an arbitrator, the two arbitrators selects a chairman and then the tribunal proceeds basically without regard to any rules or procedures. They make them up as they go along. And under the rules, it is provided that the arbitrator shall apply the law that they deem appropriate. So there is a great measure of flexibility. So, in that context, it is possible to get solutions to very difficult problems that may be impossible to resolve politically. I thought before coming here, whether we could, for instance, resolve the Israeli/Palestinian conflict. By an impartial tribunal in which Israel appoints an arbitrator and the Palestinians appoint an arbitrator. The two of them select a chairman, someone in whose detachment, in whose judgment they have confidence. Mr. Blitz is a person who came to my mind. And, if you let them decide the issue that divide the Palestinians and the Israelis, I am persuaded the whole matter will be solved very readily, to satisfaction of all the parties concerned. And, it also would be easier politically to defend the result in the sense that it is imposed by a body that called them as they saw them and might not have done all the things that each of the parties wanted, but that came up with a reasonable solution.
And that brings me to another point is that terrorists do not exist in a vacuum. They operate because they are angry, they are frustrated, and the political processes have not given them an opportunity to be heard. That is why they do things that are generally regarded as unspeakable. It is because there is no other way in which they can draw attention to their cause and we should look at the cause of the problem. We should not look at manifestations when we try to resolve the cause. And if we do that and if we do it in a neutral forum, I think we will be able to avoid a war.
You may not know it but I was in a war. I was in the Second World War in Holland. I was invaded by the Germans. I lived in terrible conditions. War is the absolutely last thing that civilized people should resort to. There are other ways of resolving conflict and I think that international adjudication has been doing a very good job in the economic area. Economics also border on politics as the natural resources of countries that are essentially the essence of their survival and therefore have great political significance.
If it is possible to resolve those disputes by adjudication, it should be possible to resolve the disputes that terrorists create because there is no forum for them to put their grievances on the table and to have them heard. The answer is not to be a society in a state of fear. Last night on television, they said get bottles of water and plastic and tape because you may need that. Is that the kind of society in which we want to live? We should make an appropriate effort to deflate that, to get away from that. And I think that adjudication is possible. When I thought of whether the United States could disregard the Security Council and go to war with Iraq, I came to the conclusion that they couldn’t. Article 51 of the Charter says, “there is a right of self defense only when an armed attack occurs.” It does not say if eminent, but occurs to have said, if its eminent you should be able to act. Also, you cannot sit back until you are really hit. You can act preemptively but only if there is no possibility of Article 51 to go to the Security Council. Article 51 says that specifically, you have to go to the Security Council. And since we are before the Security Council and since we had the opportunity to have the Security Council decide it, there is no right, in my estimation, to self-defense under Article 51.
However, if Iraq appointed an arbitrator and the United States appointed an arbitrator and they appointed a neutral chairman who would then decide whether the United States has the right to go to war under the Charter. I am sure a resolution would be achieved that would resolve the crisis. I think also politically to come to a solution to in the context of the Security Council or if they say yes then, of course, who says no until the game is up and there is no other resolution. Now he tries to play it step by step to see how far he can go and those things are always very dangerous because now you have to anticipate what Hussein may do. I would not be surprised if the United States engaged in an assault on Iraq on the assumption that there are indeed indications that Hussein tried to preempt these strikes of those who are in Kuwait.
So, my plea is that adjudication is the solution to most of our problems that it can provide a solution even in the context of the political problems we are facing now and that it does not cost any lives, it costs us money. I am happy to report that international arbitrators are handsomely paid and live well, go to nice places but it is a small price to pay in order to get a resolution to the problem and the problem I think is that the terrorist has no forum in which they can put their problems on the table and get a respectful audience.