Terrorist crime, Taliban guilt, Western victims, and international law.

• Author: Drumbl, Mark A.

On September 11th, 2001, al-Qaeda terrorists attacked the United States and killed approximately 3,000 civilians from 81 countries. (1) Traditionally, international law treats armed attacks differently than criminal attacks. States launch armed attacks against other states; organized insurgency movements having some level of command or political structure also may launch internal armed attacks against state governments. Individuals or groups, on the other hand, initiate criminal attacks. The law responds to criminal attacks through investigation and trial. The law permits states to use force against other states in self-defense to armed attacks. (2) The September 11th attack was a war-like attack undertaken against a state by individuals from other states operating through a nonstate actor that has some command and political structure. (3) As such, it does not cleanly fit into either the armed attack or criminal attack category. In fact, it blurs the distinction between the two.

Unsurprisingly, the U.S. response to the attack drew from both categories. First, the U.S. argued that the Taliban harbored al-Qaeda and, consequently, the attack was an armed attack attributable to Afghanistan. Therefore, the U.S. (and its allies) had the right to initiate military strikes in collective self-defense. (4) These strikes converted Afghanistan's internal armed conflict into an international one. The strikes and subsequent ground campaign were militarily successful, prompting the abdication of the Taliban, destruction of terrorist infrastructure and personnel, and capture of thousands of fighters. (5) The follow-up response was one of both criminal and military justice: apprehending, detaining, and prosecuting some al-Qaeda operatives and Taliban fighters. Thus far, two prosecutorial strategies have emerged: U.S. federal courts or U.S. military commissions having jurisdiction only over foreign nationals. Although the commissions and their regulations contain some due process protections, as currently envisioned they do not provide defendants the same level of protection as the federal courts or the courts-martial (conducted under the Uniform Code of Military Justice). (6) Some foreign national courts also have initiated judicial proceedings. (7) Large numbers of terrorist suspects remain in detention in many countries world-wide.

Thus, the U.S. simultaneously wages an armed conflict while it undertakes a criminal investigation. As such, Taliban and al-Qaeda fighters were combatants for the purpose of justifying the lethal use of force. Once captured, they became criminal detainees for the purpose of criminal and military justice, although not true criminal detainees insofar as some may be tried outside the criminal justice system by military commissions and thereby avoid the due process protections given criminal defendants in U.S. courts. However, the fact that these detainees were captured as combatants in an armed conflict means that, as they become defendants facing trial, they may retain important rights, specifically the rights accorded to prisoners of war by the Geneva Conventions on the Laws of War. (8) In February 2002, the U.S. affirmed that Taliban detainees were entitled to the coverage of the Geneva Conventions whereas al-Qaeda fighters were not. (9) Yet the U.S. denied prisoner of war status to all detainees, (10) According to the Geneva Conventions, the actual determination of whether an individual is or is not a prisoner of war is to be made by a tribunal, not unilaterally by a party to the armed conflict. (11) Until such a determination is made, the detainees are to be treated as prisoners of war. (12) Thus, the U.S. declaration that it is abiding by the Geneva Conventions may not be accurate, as this declaration arguably was not been followed by strict adherence to the actual terms of the Conventions.

Given that prisoners of war were formerly soldiers authorized to use force, they cannot be prosecuted for acts lawfully committed under that authorization (e.g. killing and wounding the enemy). (13) They only can be prosecuted for activities that exceed that authorization, such as war crimes. Prisoners of war are guaranteed the right to be tried by the same courts, under the same procedure, and with the same appeal rights as are members of the armed forces of the detaining power. (14) They are to be sentenced to the same penalties. (15) There are also rights to counsel, to confer privately with counsel, to pre-trial assistance by counsel (for example during interrogation), and to call witnesses. (16) While awaiting trial, prisoners of war are to be housed in the same conditions as their captors. (17) In any event, regardless of their status as prisoners of war, all detainees are entitled to the protection of international human rights law, customary international law, and other treaties.

Although the rules regarding commission procedure (issued in March 2002 after a draft had been circulated in December 2001) narrowed many of the gaps between the initial construction of the commissions and international law, (18) there are still reasons to fear that the planned military commissions (together with the ongoing detentions in which individuals have not yet been charged) do not fully meet these standards. (19) Skirting international humanitarian law places the U.S. in a weakened position when criticizing rights violations, including those committed against Americans, in other countries. Sustained Geneva Convention violations by Iraq affecting Coalition soldiers spring to mind; so, too, do acts of perfidy undertaken by Iraqi paramilitary forces.

This mixed criminal/military response is understandable. After all, to victims, the September 11th attack certainly feels like more than just a crime. It is almost trivially true that the attack was criminal; and painfully obvious that it involved murder, injury, hijacking, and property destruction. Prosecuting terrorists under ordinary criminal law may sanitize their conduct as that of the ordinary criminal. This may be one reason why military commissions have emotional appeal.

There is, however, another option. Consideration could be given to prosecuting at least some of those responsible for the attack in an international tribunal for crimes against humanity. Crimes against humanity include acts of the ultimate despicability that are among the most serious matters of concern to the international community as a whole. In the past, the U.S. supported international prosecution for such crimes. For example, following World War II, the U.S. pushed for an international military tribunal when some Allies sought the summary execution of captured Nazi leaders. (20) More recently, the U.S. has strongly supported the prosecution of crimes against humanity before international tribunals in many places, including Bosnia, Kosovo, Croatia, Rwanda, and Cambodia. (21) Prosecuting September 11th as a crime against humanity recognizes both the criminal as well as war-like nature of the attack, and universally condemns terrorism in the most serious way possible. It may also eliminate the time-consuming debate whether the detainees are or are not prisoners of war.

To be sure, there are certain political advantages in proceeding through an abridged military process. These include expediency, control, incapacitation of attackers, and security. However, the military commissions may not develop a comprehensive record of terrorist conduct that fully paints the...