Choices of law, choices of war.

• Author: Feldman, Noah
• Position: Terrorism and the distinction between crime and war

Is terrorism crime, or is it war? What conceptual framework will or should the United States use to conceptualize its fight against terror? The distinction between crime and war, embodied in international and domestic legal regimes, institutional-administrative divisions, and in such legislation as the Posse Comitatus Act, (1) requires serious rethinking in the light of the terrorist attacks of September 11, 2001. (2) Whether we choose the framework of war, the framework of criminal pursuit and prosecution, or, as is more likely, some complicated combination of the two will have major ramifications in the spheres of law, politics, and policy.

This Essay proposes to examine a few of the most important and interesting problems associated with the choice of framework, and to address in a preliminary way the central question of how the crime/war distinction should be treated, developed, preserved, or revised. Part I investigates the distinction between crime and war and proposes four criteria that underlie that intuitive distinction. Applying these criteria shows that some cases, such as international terrorism, can plausibly be characterized as both crime and war and that these cases therefore undermine the binary character of the crime/war distinction. Part II considers the practical consequences of the crime/war distinction for the pursuit and capture of international terrorists, paying particular attention to a striking asymmetry: on the one hand, criminals generally may not be killed by their pursuers if they pose no immediate threat, but may be punished after capture; adversaries in war, on the other hand, may generally be killed in pursuit without giving quarter, but generally cannot be punished after they are captured. (War criminals constitute a complicated hybrid category.) There is therefore reason to think that U.S. policy can and will treat international terrorists as war adversaries while they are being pursued and as criminals of some sort after they are captured. Part III briefly considers the institutional and administrative implications of the breakdown of the crime/war distinction in the case of combating international terror and discusses the sorts of institutional changes that may be appropriate. The general suggestion of the Essay is that it may not be necessary to choose either crime or war as an exclusive general framework for addressing problems of international terror. Rather, the framework itself may require reexamination--a reexamination perhaps long overdue, but in any case prompted in the United States by the events of September 11.

1. WAR AND CRIME: A BRIEF EXCURSUS

   What sort of distinction is the familiar one between war and crime? Begin with the traditional distinction between crimes against domestic law and acts of war against a state. Both crime and war involve acts that in some sense offend against the state--after all, crime was long said to violate "the king's peace." (3) But a crime violates the laws of the state, whereas a war involves a violation of, or a challenge to, a state's sovereignty more generally. What are the constitutive elements of this distinction?

   The first element of the crime/war distinction, which interacts in complicated ways with the other elements I shall discuss, is the identity of the actor. International law traditionally took the view that only a sovereign state could perform an act of war. Reciprocally, the domestic law of jurisdiction has traditionally incorporated the view that sovereign states are immune from criminal (and civil) prosecution, as indeed are their leaders. (4) Call this the identity criterion: the actor's identity plays a role in determining the difference between war and crime. The identity criterion may not have an independent logical basis, (5) but it certainly plays a key role in our intuitive understanding of the differences between crime and war. Our intuition tells us that states make wars and individuals commit crimes.

   A second salient element of the distinction lies in jurisdictional provenance. For an act to count as a crime, it must be committed by someone who falls within the relevant jurisdiction. The standard view of jurisdiction, embodied in, for example, Restatement (Third) of Foreign Relations Law, gives a state jurisdiction over actions taken within its borders; actions intended to have substantial effects within its borders (even if taken outside the borders); actions against its nationals, even nationals abroad under some circumstances; and actions taken outside the state that are directed against the security of the state. (6)

   This view of jurisdiction builds on the basic intuition that crimes are archetypically committed within the state itself. Expansion of criminal jurisdiction outside the geographical boundaries of the state is designed to protect persons and property that are either within the state or so closely associated with the state as to count as within it. By contrast, war is typically waged by some force or power that is located outside the state's jurisdiction, although in the course of war, the outside power may make incursions into the state's jurisdiction. Notwithstanding that such incursions harm the state's interests and authorize self-defense and the use of force, it is difficult to imagine a domestic law that prohibits invasion by a foreign power. It would be very strange, for example, for the United States to pass a domestic law making it a crime for Canada or Mexico to invade the United States. Part of the reason appears to be that no one state possesses the supranational jurisdiction to prohibit war. If crime violates the king's peace, then war violates a peace that (in the traditional view) does not belong to anybody, since no one state has the supranational jurisdiction to prohibit war. Call this jurisdictional element the provenance criterion of the crime/war distinction.

   A third salient element of the crime/war distinction has to do with the intent of those who commit crime or wage war. A criminal typically intends to achieve some prohibited end and to get away with it by avoiding discovery, prosecution, and punishment. He normally does not deny the state's legitimate right to enact the law that he violates. By contrast, the body that commits an act of war against a state normally intends to contest the state's legitimate right to something. (7) Perhaps the war-maker contests the attacked state's sovereignty over some piece of land, or contests the legitimacy of some act of alleged aggression by the attacked state. Sometimes, though not always, the attacker contests the very legitimacy of the attacked state's government, and seeks to replace it. In any case, it will be rare (though not unimaginable) for those who wage war to acknowledge the complete legitimacy of the attacked state's identity and actions and to say simply that the war is aimed at expanding territory or seeking revenge. Shakespeare's Henry V launches his invasion of France after his legal advisers reassure him that he is the legitimate heir to the French throne, notwithstanding the Salic law prohibition on inheritance through the female line. (8) The War of Jenkins's Ear took place some eight years after Captain Jenkins lost the ear in question to a Spanish knife, but as the eponym suggests, even that war was said to have a casus belli grounded in the illegitimate actions of Spain. (9) Call this the intentionality criterion of the crime/war distinction.

   Finally there is a fourth element, one relating to the scale of the hostile action taken. Call it the scale criterion. This criterion is even less susceptible to precise characterization than the other three criteria, but nonetheless it matters in some way. Large-scale hostilities seem more plausibly to constitute war than do small-scale ones. A shot fired in anger across a hostile border by a single enemy soldier with the intent to challenge the legitimacy of the government on the other side--even if the shot were ordered through the chain of command--would not normally be considered an act of war unless it were followed by lots more shooting. Although occasionally a casus belli may be small (consider Jenkins's ear again), usually such a casus belli suggests that the attacked party is looking for an excuse to say that war has begun against it. When the hostilities mount in scale, the escalation looks more like war. Similarly crime on a large enough scale--an organized syndicate's robbing, for example, thousands of banks in a day, killing hundreds of guards and police--begins to resemble war.

   The hard cases on the border of the crime/war distinction show the importance of all four criteria: identity, provenance, intentionality, and scale. Is treason under the U.S. Constitution war or a crime? The Constitution does not resolve the question satisfactorily. It says that treason may consist in "levying war against," or in "adhering to" the enemies of, the United States, but it also, of course, prescribes a trial for charges of treason. (10) The very notion of treason requires action by someone within the state's jurisdiction, whether geographical or personal; (11) this is a provenance argument for viewing treason as a crime. However, while those who commit treason do not themselves normally constitute a state (except in the contested case of secession), they may be "adhering to" an aggressor state, which will complicate matters and make their act look like war. The identity criterion therefore raises tricky problems. Treason will often involve a challenge to the legitimacy of the state's rule, and so the intentionality criterion also makes treason look like an act of war. Finally, treason by thousands of people looks more like war than does the treason of one or two. Perhaps the way to resolve this puzzle is to say that treason is the prohibited crime of war against the state waged by a citizen or another person within the state's jurisdiction. (12)

   ...