Laura M. Olson, Prosecuting Suspected Terrorists: the "war on Terror" Demands Reminders About War, Terrorism, and International Law

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 24 No. 2

PROSECUTING SUSPECTED TERRORISTS: THE "WAR ON TERROR" DEMANDS REMINDERS ABOUT WAR, TERRORISM, AND INTERNATIONAL LAW

Laura M. Olson^*

Nothing highlights the challenging convergence of war, terrorism, and international law more starkly than what has been called the "war on terror."¹

The ongoing discussion in the United States, for example, of whom to prosecute, in which forum, and under which legal framework continues to conflate international law regulating war, terrorism, and individual criminal accountability. While hotly debated in the United States, particularly since the attempted bombings of New York City's Times Square on May 1, 2010 and of Delta Flight 253 on December 25, 2009, the prosecution of alleged terrorists is a problem neither new nor unique to the United States.

As countries seek to fight international terrorism, it remains important that proposed solutions do not undermine existing international law. In that regard, this Article provides some basic reminders on: (1) the relationship between violations of international humanitarian law, including war crimes, and acts of terrorism; (2) the domestic criminal liability of non-state actors party to a non- international armed conflict who have no combatant immunity; (3) how the criminalization under international law of certain acts as terrorism could negatively impact the protection of persons during armed conflict; and (4) the fact that domestic courts remain the most effective forum in which to prosecute suspected terrorists and to combat impunity for serious violations of international law. Bearing in mind the unique relationship between war, terrorism, and international law-as illustrated in these reminders-will help to ensure that initiatives developed to fight terrorism imperil neither the fundamental humanitarian protections found in international law nor the means to hold accountable those who commit atrocities.

REMINDER 1: ACTS OF WAR AND ACTS OF TERRORISM ARE NOT NECESSARILY

SYNONYMOUS

Terrorist acts are committed during armed conflicts as well as in peacetime.²As international humanitarian law ("IHL") applies only in situations of armed conflict-that is, war in the legal sense-IHL does not regulate terrorist acts committed in times of peace.³Despite the common tendency of one party to an armed conflict to label as terrorism all acts committed by an enemy party, not all acts of war constitute terrorist acts.⁴In fact, IHL permits violent acts that would be illegal in peacetime, such as killing other combatants.⁵The terrorist acts committed in an armed conflict that IHL prohibits are briefly outlined here in order to better illustrate how the concept of terrorism relates to war.

The requirement to distinguish between civilians and combatants and the prohibitions of attacks on civilians and indiscriminate attacks are central to IHL. Not only does IHL expressly prohibit all acts aimed at spreading terror among the civilian population,⁶IHL also proscribes the following acts, which could be considered terrorist attacks: attacks on civilians and civilian objects;⁷indiscriminate attacks;⁸attacks on works and installations containing dangerous forces;⁹attacks on places of worship;¹⁰hostage-taking;¹¹and killing persons not or no longer taking an active part in hostilities.¹²

IHL specifically prohibits "measures of terrorism" and "acts of terrorism."¹³The Geneva Convention Relative to the Protection of Civilian Persons in Time of War states that "[c]ollective penalties and likewise all measures of intimidation or of terrorism are prohibited,"¹⁴while Protocol II prohibits "acts of terrorism" against persons not or no longer taking a direct part in hostilities.¹⁵"The main aim is to emphasise that neither individuals, nor the civilian population may be subject to collective punishments, which, among other things, obviously induce a state of terror."¹⁶

These provisions are a key element of the IHL rules governing the conduct of hostilities, which prohibit acts of violence during armed conflict that provide no definite military advantage.¹⁷It is important to keep in mind that even a lawful attack on military targets can spread fear among civilians and result in civilian deaths.¹⁸However, IHL "provisions outlaw attacks that specifically aim to terrorise civilians, for example campaigns of shelling or sniping of civilians in urban areas."¹⁹

Thus, acts of terror can overlap with acts prohibited in war by IHL; the worst IHL violations are called war crimes.²⁰However, all acts of warfare do not constitute terrorism under international law.²¹For example, in an international armed conflict, IHL permits one state's armed forces to attack an opposing state's military command post.²²Also, the mere act of a non-state actor taking up arms against a state is not a violation of IHL, but it would most certainly be a violation of a state's domestic law and possibly be labeled as terrorism in the state's domestic criminal legislation.²³Furthermore, terrorism also takes place outside of situations of armed conflict, where IHL is not applicable.²⁴

Applying the correct international legal framework is crucial to assessing whether a violent act-even if labeled by some as terrorism-amounts to a violation of international law. This is particularly the case in an armed conflict where IHL is the applicable legal framework, as certain acts prohibited in peacetime are permissible under IHL during armed conflict-regardless of whether those acts are committed by friend or foe.²⁵

REMINDER 2: FOR THE NON-STATE ACTOR PARTY TO A NON-INTERNATIONAL ARMED CONFLICT, DOMESTIC CRIMINAL LAW AND IHL HAVE ALWAYS APPLIED IN PARALLEL

Unlike for a state's armed forces in an international armed conflict, no combatant immunity exists for non-state actors party to a non-international armed conflict.²⁶IHL applicable to non-international armed conflict does not provide for combatant and prisoner-of-war status because states have been unwilling to grant members of armed opposition groups immunity from prosecution under domestic law for taking up arms against the state.²⁷Thus, while a non-state actor may engage in hostilities in full compliance with IHL, domestic laws generally criminalize the use of force against the state.

The fact that non-state actors can be held criminally accountable at the domestic level-even when fully respecting the rules at the international law level-explains the inclusion of Article 6(5) in Protocol II: "At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained."²⁸

This provision encourages granting amnesty for taking part in hostilities, which otherwise is subject to prosecution as a violation of domestic criminal law. States included this provision in Protocol II regulating non-international armed conflicts in order to encourage compliance with IHL by non-state actors and to put an end to hostilities.²⁹

Since states began regulating non-international armed conflicts through international law, both domestic criminal law and IHL have applied coextensively.³⁰To the extent, for example, that the fight against al Qaeda in Afghanistan constitutes a non-international armed conflict,³¹the simultaneous application of domestic criminal law and IHL presents no unique or new hybrid situation. Thus, proposals, particularly in the United States in relation to what has been labeled the "war on terror," to create hybrid mechanisms (such as a new "national security court"³²) to conduct criminal trials,³³to review preventive detention,³⁴or both,³⁵in order to supposedly deal with this "new" paradigm should be carefully evaluated.

Proposals for these hybrid courts are often based on the presumption that the traditional criminal justice system cannot handle trials of terrorism suspects-whether the alleged crimes amount to war crimes or not.³⁶Facts demonstrate this presumption to be false. For example, since September 11,

2001, U.S. federal courts have successfully handled cases arising from terrorism that is associated with self-described Islamist extremist groups like al Qaeda, resulting in almost 200 convictions, a 91.121% conviction rate.³⁷The alternative forum of military commissions at the Guantánamo Bay Detention

Facility has convicted five suspected terrorists since 2001.³⁸

"National security courts" pose a threat to U.S. individual rights, particularly as proposals for such hybrid courts generally reduce due process and evidentiary protections for a particular class of persons-terrorism suspects.³⁹The creation of a new, special system with lower due process standards threatens the justice system as a whole, not just for the terrorism suspects. It would be exceptionally difficult to successfully contain a new system with lower standards so as to prevent those lower standards from seeping into the traditional justice system.

Just as there is no need to establish national security courts to replace traditional Article III courts, so too there is no need to create such tribunals to handle cases that would normally be tried by military courts. Individuals should be tried either in our traditional criminal justice system or in properly constituted military courts.⁴⁰

Picking and choosing between the two systems-regular federal courts and military commissions-to create a third system is unnecessary, risks undermining both existing systems, and fails to recognize how domestic law and international law have always been employed in parallel.

REMINDER 3: CRIMINALIZING TERRORISM UNDER INTERNATIONAL LAW IN A COMPREHENSIVE DEFINITION COULD NEGATIVELY IMPACT THE PROTECTION OF PERSONS IN ARMED CONFLICT

The relationship between armed conflicts, IHL, and anti-terrorism instruments is a challenging one. States' efforts to conclude a treaty criminalizing terrorism through a single...