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This article will appear in The St. Louis Lawyer.
Several days later, the cover of the September 24, 2001 New Yorker magazine reflected that pain and loss. The cover is flat black. But on it are the glossy black silhouettes of the World Trade Center towers. Ghosts.
As I write this article, over 6,000 people remain missing and presumed dead in the attacks on New York, D.C. and Pennsylvania. As a student of conflict resolution, I have spent many hours trying to think about the nature of this conflict and the best ways to respond to it. Not a week before the attacks, my LL.M. class had begun reading Bloodlines: From Ethnic Pride to Ethnic Terrorism by Vamik Volkan. The author attempts to understand why people "kill for the sake of protecting and maintaining their large-group identities. Why are they compelled to take revenge for the wrongs inflicted on their ancestors or others belonging to their bloodline? What happens to a group's "we-ness," its distinction from others, to become so deadly?" Id. at 17. This column is too short to discuss these psycho-cultural theories today, but consider that the we-ness we now express as flag waving United States citizens reflects a response to the we-ness of Osama bin Laden and the people who are drawn to his world view. Is revenge where we are headed?
The question I have considered these past several days is what form of conflict resolution might positively affect the course of this conflict. Three general strategies exist: interest-based negotiations, rights-based adjudications and power-based uses of force.
A Call for Dialogue, Empathy and Accountability
Interest-based negotiations include direct negotiations between the disputing parties, facilitated negotiations (for instance, when a third-party is invited in to provide information or perspective), and mediation. The focus is on the parties' underlying interests and needs. It is clear to me that we cannot negotiate or mediate with bin Laden, at least at this time. At a minimum, the parties to any negotiation must have trust or the sufficient restoration of trust to bargain in good faith with each other or to be perceived as bargaining in good faith. That trust does not exist in this context.
At the same time, the Bush administration has carefully begun interest-based negotiations with nation-states that can assist us in pursuing other conflict resolution techniques. Its negotiations with Pakistan are incredibly delicate and high risk. Pakistan's military leader cannot run the risk of enraging that portion of the Pakistani population that supports bin Laden. He is the only safeguard between these persons and an arsenal of nuclear bombs. At the same time, the Pakistani leader clearly wants economic sanctions removed from his country to help solidify his political base. See "America's Worst Nightmare," 60 Minutes (Oct. 15, 2000). The Saudis have officially withdrawn support of the Taliban. Russia, our former antagonist in the region, has also agreed to cooperate in the fight against terrorism spawned in Afghanistan.
The Association for Conflict Resolution, the largest organization of ADR neutrals, has encouraged a dialogue that seeks to "understand the fundamental interests and concerns of all involved in this complex tragedy." Its director suggests that:
"Through dialogue, we may de-escalate the cycle of violence and the growing estrangement of Western and Islamic worlds. The place to begin this dialogue is to examine what we are doing as individuals to promote the use of non-violent conflict resolution in our families, communities and workplaces. Only then may we take steps to unearth and name our own societal contributions to the violence of September the 11th."
In a similar thought, the Buddhist Peace Fellowship (BPF) quotes Gandhi: "An eye for eye only ends up making the whole world blind." BFP urges caution and skillful action "in the tense moment between violent action and violent reaction." It asks our nation's leaders to pause "to look deeply and think clearly before they step in time to the drumbeat [of war.]" It urges us to "seek what is noble and just in even the most damaged of us." (www.bfp.org/9-11statement.html)
One of the guiding principles in the teachings of Buddha is that each effect has its web of causes and conditions. Buddhists call this karma. "Nations deny causality by ascribing blame to others - terrorists, rogue nations, and so on. [In] singling out an enemy, we short-circuit the introspection necessary to see our own karmic responsibility for the terrible acts that have befallen us. We risk recreating ourselves as mirror images of those we think of as the enemy." BFP urges us to consider the role we have played in demonizing Arabs and the Muslim religion for decades and in supporting oil-rich but corrupt regimes that deny their people civil rights and economic opportunity, like Saudi Arabia and Egypt. The BPF urges us to become a friend to the world's people by no longer brandishing expensive weapons but instead sharing our wealth to feed the hungry, house the homeless, and treat the sick. Id.
Criminal Prosecution as a Rights-Based Remedy
Rights-based resolutions typically take the form of binding arbitration or judicial decisions. James Matlack of the American Friends Service Committee (AFSC), a Quaker agency, urges the use of a law enforcement model. During the September 23 issue of Religion and Ethics Newsweekly on PBS, he said: "Use a tribunal model to catch people who are genuinely capable of the kind of terror that was executed last Tuesday. But keep away from the notion that you are turning the whole nation to a basis of war." (www.pbs.org/wnet/religionandethics/week503/cover.html)The Quakers have a long tradition of eschewing war and all forms of violence for any end whatsoever. What many of you may not know is that the Quakers play a significant role in international mediation, often called "track two" diplomacy. In When Talk Works: Profiles of Mediators, Deborah Kolb describes their quiet role in mediating the civil war in Sri Lanka. Id. at 427-458. At its website, the AFSC urges us to "break the cycle of violence and retribution." It has launched a No More Victims campaign. (www.afsc.org)
Hendrick Hertzberg, also advocates a rights-based approach. He describes the terrorists as outlaws.
"They may enjoy the corrupt protection of a state . . . But they do not constitute or control a state and do not even appear to aspire to control one. Their status and numbers are such that the task of dealing with them should be viewed as a police matter, of the most urgent kind. As with all criminal fugitives, the essential job is to find out who and where they are….The world will be policed collectively or it will not be policed at all."
Comment, Talk of the Town, The New Yorker 28 (Sept. 24, 2001). This approach relies on the international or national judicial system to put the outlaws on trial in a way that is consistent with the values of civilized societies governed by laws.
Roman Catholic Bishop Kenneth Angell agrees:
"Yes, the terrorists should be brought to justice, but we must respond in a Christ-like manner by striving to forgive even our persecutors, even the perpetrators of this infamous day of evil in America."What makes his comments so poignant is that Angell lost his brother and sister-in-law in the attack. (www.pbs. org/wnet/religionandethics/week503/cover.html)
War: Is a Power-Based Resolution Just?
Hertzberg also comments on the use of a power-based resolution like war.
Authorities estimated last week that 'as many as' fifty people may have been involved. The terrorists brought with them nothing but knives and the ability to fly a jumbo jet already in the air. How do you take 'massive military action' against the infrastructure of a stateless, compartmentalized 'army' of fifty, or ten times fifty, whose weapons are rental cars, credit cards and airline tickets?
These facts point out, he says, the weakness of the war metaphor and the limits of a power-based response. Having said all this, the Christian religion does recognize the concept of a "just war." Dr. Lisa Cahill, Professor of Ethics, Department of Theology at Boston College, explains its scope. War may be used as a last resort. It must be proportional and it must satisfy the question: Will more harm be caused by the means used than by the good achieved? A just war must also have a reasonable hope of success. It must have clear aims that can be accomplished. Most importantly, civilians may not be the subjects of direct attack. (www.pbs.org/wnet/religionandethics/week503/ perspectives.html)
By now, most of us know the dire circumstances in which most Afghanis - 60 percent of whom I have heard are women and children - live. Bomb them back to the stone age? The Russians already did that. In light of all the circumstances in Afghanistan and the elusive habits of the bin Laden terrorists, how do we satisfy the requirements of a "just war"? Denis Johnson, also writing in The New Yorker, talks of the war that has "rolled lopsidedly over the world, crushing the innocent in their homes" for over a century, while the U.S. appeared to many in the world as aloof and self-centered. "The United States has been seen, by some people, as keeping the destruction rolling without getting too much in the way of it . . .[a]nd these people hate us." Id at 30. He asks us to consider how these people have lived during that time, especially the Afghanis, who have experienced 20 years of war.
I have now seen two days of war in the biggest city in America. But imagine a succession of such days stretching into years - years in which explosions bring down all the great buildings, until the last one goes or until bothering to bring the last one down is just a waste of ammunition. Imagine the people who have already seen years like these turn into decades - imagine their brief lifetimes made up only of days like these we've seen in New York.
Forgive me if I join the call for a peaceful dialoge and justice through international criminal law. As a mediator and trial attorney, I have faith in the integrity and success of both processes. Forgive me if I chose to wear black in respect for the missing and dead, but chose not to wear a flag in support of a call to war. Forgive me if I ask for the courage to look for a skillful resolution that does not involve violence. As Susan Sontag writes in The New Yorker, "Who doubts that America is strong? But that's not all America has to be."
Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design. She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S. She has over 1400 hours of alternative dispute resolution training. Missouri and Virginia have recognized her as a mediator qualified to handle court-referred cases.
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