TERRORISTS AND JUSTICE: THINKING OF LEGAL PROBLEMS DUE TO THE MILITARY APPROACH OF COUNTERTERRORISM

Maria Alvanou
(RIEAS Senior Analyst and Member of the Italian Team for Security and Emergency Management, Milano Catholic University)

Copyright: www.rieas.gr

The events of September 11 have led the world’s leading states and especially US to reassess terrorism as a security threat. Today the problem is been seen as to be solved not only on legal and domestic levels, but more in the sense of war. We are witnessing a war against terrorism that is characterized by military activity against countries that operate as safe havens for terrorist groups. The aim is to inflict harm on the groups, but also to enhance and better the security environment in countries that foster the deadly phenomenon of terror.

Military response to terrorism threats is not a new phenomenon. Americans have been struggling with the conundrum of the effectiveness and consequences of military force for some years now. In February 1998, the US sent forces to the Persian Gulf in anticipation of possible military conflict with Iraq. Though the possible military action was not in response to a direct terrorist attack, there was substantial concern that the whole situation would lead to terrorist strikes. Yet it was the unprecedented nature of the September 11 attacks and the magnitude of damage and loss of life that led to the assumption that these acts were not just criminal acts, but “acts of war.”  Thus, the military action against Afghanistan and Iraq has followed.

The war on terrorism has been particularly problematic at its military dimension, but even more it entails serious legal and practical implications of treating the terrorist acts as war crimes and of applying the law of war rather than criminal statutes to prosecute the perpetrators. Regardless the outcome of the military missions, the judicial route is the one that will decide at the end of the day, about the punishment of those individuals responsible for terror. The first problem appears to be that treating terrorist acts as acts of war may legitimize them as a lawful use of force and elevate the status of the perpetrators and terrorist networks to that of legitimate state actors and lawful combatants. This would enhance the known dilemma “terrorist or freedom fighter” which is always troubling the public opinion in terrorism cases. Let us not forget that despite the violent method they use, terrorists sometimes have as a front a just cause and thus they are able to gain sympathy from people. Treating international terrorism as a legal matter can help to depoliticize and delegitimize it by defining it as a mere criminal activity instead of warfare.

On a more general and societal level invoking so easily the law of war against terrorists could lead to the use of a similar approach to combat other societal ills and evils (like the drug cartels etc) upon which rhetorical “wars” might be declared.  This argument is very important to the legal community and those who deal with justice issues and are aware of the “sleepery slope” that a strategy against terror can result into, endangering the general civil liberties.

Since Al-Qaeda, the terrorist organization behind the tragic September attacks is not a state under international law and its members are not uniformed soldiers of any recognized army, there are conceptual difficulties in fitting their activities into the rubric of the international law of war.  The use of force by private persons rather than organs of a state has not traditionally constituted “armed conflict.” Furthermore, the attacks on New York, Pennsylvania, and the Pentagon have not been part of an effort to take control of a territory or install a new government, nor is it certain that they were carried out under the explicit direction of another state . However, the sophisticated planning and execution believed necessary to have accomplished the attacks suggest that they were carried out by organized members of a quasi-military force.

Of course the whole issue is problematic even from the point of view of “normal Justice”. Could Osama bin Laden get a trial in a federal court under the established rules of procedure and evidence? The whole penal procedure could be used to the terrorists’ advantage by allowing them to force the government to release sensitive information, important for the general counter-terrorism strategy of the country. A trial of suspected terrorists could also become an “international media circus,”  raising possible concerns for the safety of judge and jurors.  Such a trial could be lengthy and subject to multiple appeals, during which a conviction could be overturned on a technicality. It might be even impossible to empanel an impartial jury anywhere within the country. In any case, under today’s circumstances and the US war against terror, the matter in discussion is whether the attacks of September 11 may be considered “acts of war” under international law, and if so, how those responsible might be treated under the law of war.

The legal theory regarding this is negative, as the law of war may be applied only to acts that are part of an “armed conflict.” The events of September 11 though tragic, do not fall under this category. A terrorist act is not seen to be an act of war unless it is part of a broader campaign of violence directed against the state. Where terrorist acts amount to no more than internal disturbances and tensions such as riots and isolated and sporadic acts of violence,” the Hague and Geneva Conventions can not apply. Of course, it has been suggested that the possible involvement of governments of foreign states may make international terrorism an armed conflict for the purposes of the law of war and state support of terrorism is a violation of international law. On the other hand, it has also been argued that states supporting the acts of third parties are not necessarily responsible for those acts merely by providing financial, political, or intelligence support; only a direct military support would qualify as an act of war. Even the ‘war on terror’ is not an armed conflict at all. It consists of a multi-faceted counter-terrorism campaign, some aspects of which involve the use of military force, most of it carried out in States where there is no armed conflict, although aspects of the counter-terrorism campaign assume the characteristics of armed conflict where the US attacks a State considered to be harbouring or assisting Al- Qaeda.

While all of the above, as well as the status of the detainees caught during the war against terrorism remain ambiguous (for example who are the people held in Guandanamo: are they criminals? are they prisoners of war? what are their rights and their detention status?), there are a lot of questions put on the table regarding the US military approach in fighting terror. Most of these questions actually harm our own moral and ethical stand in this campaign against terror, proving to some that the democracy and values we are supposedly defending are hurt by us. Also, the fact that there are nearly everyday terror attacks in Iraq with the operational method of suicide bombings, indicates that the US army approach- though justified on lots of grounds- does not pay a lot in counterterrorism results.

No one can doubt that since terrorism is an asymmetric warfare method, war and military is an answer. But it is not the only one and it cannot work adequately, unless a multilevel approach takes place. An assessment must be made on how the military approach can become more fruitful against international terrorism and how legal and procedural issues that arise can be taken care of. Side by side to military missions, updated criminal legislation, law enforcement and intelligence may be the safest – and known until now as the more reliable- path to be taken against terrorists. After all some wars must be fought with  lots of different weapons.

Footnotes:

1.Of course the September 11 attacks clearly violated numerous laws and may be prosecuted as criminal acts, as past terrorist acts have been prosecuted in the United States. For example, Sheik Omar Abdel Rahmen was convicted, along with several of his followers, for seditious conspiracy to levy war against the United States in connection with the 1993 World Trade Center bombing and other plans to commit urban terrorism and the perpetrators of the embassy bombings in Africa were prosecuted for murder and other charges in federal court.
2.Daniel M. Filler, Values We can Afford – Protecting Constitutional Rights in an Age of Terrorism: An Answer to Crona and Richardson, 21 OKLA. CITY U.L. REV. 409, 419-20 (1999).
3.Ruth Wedgewood, Responding to Terrorism: The Strikes Against bin Laden, 24 YALE J. INT’L L. 559 (1999).
4.Despite the known argument that there are certain Middle Eastern countries that sponsor ethically and even financially terrorist activities around the world, under the flag of the global Jihad.
5.Katherine M. Skiba, Quick Action Against Bin Laden Called Difficult, 5.MILWAUKEE JOURNAL SENTINEL, Sept. 26, 2001, at 6A; Richard Sisk, The Prime Suspect Is Bin Laden, DAILY NEWS (New York) Sept. 12, 2001, at 18.
6.Louis Jacobson and Gia Fenoglio, How Would They Be Tried? 33 NAT’L J. 3350 (Oct. 27, 2001).

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