From the moment we were subjected to the horrors of 11 September, few have disagreed with President George Bush's call for swift and decisive "justice." It is perhaps safe to assume that most Americans—myself included—regard just punishment for such heinous acts to be nothing short of removing the perpetrators from the face of the earth.
What kind of "justice" should the United States administer, however, when we find ourselves with terrorists in our custody? We cannot just shoot first and ask lawyers what they think later. The realities of international humanitarian law (commonly referred to as the law of war), and indeed the President's strong but carefully worded rallying cries for "justice," demonstrate how our country needs not only the moral but also the legal justification for pursuing a campaign against suspected terrorists.
We need to formulate policy now on how we intend to proceed legally against captured terrorists. Our leaders must recognize that how we do so may set the most pervasive precedent for how we wage war against terrorism around the globe. The United States cannot afford to send a mixed message.
Will terrorists be treated merely as suspected criminals instead of an opposing armed force? Will they be entitled to a civilian jury and other rights enjoyed by those indicted domestically for common crimes? If so, the harm to a worldwide campaign to eradicate them is significant. We will have difficulty justifying anything more than a criminal investigation. We will be hampered by the limitations placed on us by foreign governments and even some of our own domestic laws. We may end up banging our heads against a wall like the one in Yemen, where our efforts to apprehend suspected conspirators responsible for the attack on the USS Cole (DDG-67) reached a virtual dead end when the local government refused to allow U.S. authorities to investigate. In short, we will not be waging war.
This is not the plan of action our President seems to envision in our new "war against terrorism." We want to "drain the swamp they live in," to "smoke them out of their holes," to bring them in "dead or alive." We expect that countries will either be "with us or against us." What does all that mean in plain English? That nations opposed to this multinational effort will be considered as aiding, harboring, or supporting the enemy—not fugitives, not criminals, but the enemy. The United States will reserve the right to wage war on those nations as well as on the enemy themselves under the internationally recognized right of self-defense.
This is not to say that the United States should bomb every country that gives less than enthusiastic support to the new international coalition. It should indicate, however, that the United States expects to march, fly, and/or sail into the sovereign territory of those nations that harbor the enemy within their borders, and then do what every nation is legally entitled to do in war: kill the enemy. We will do it humanely; we will uphold the law of war at every turn; but we will wage real war against real (albeit illegal) combatants.
Never before have the stakes been so high. Never before has the inability of the criminal justice system to deal with this threat on its own been more apparent. And never before have we anticipated action against terrorists who may have committed murderous acts against non-U.S. targets and on foreign soil.
The time has come to treat terrorists as what they are: members of organized enemy forces who act with complete disregard for the laws of war. We should abandon our previous strategy of pursuing common criminal prosecutions alone and adopt a wartime approach under international law. As with all things, the law of war has evolved past traditional limitations. Combatants no longer are required to wear uniforms or be members of a nation's "armed forces" to be liable for war crimes. Once we capture known terrorists, they should be treated as the enemy and held for prosecution.
Our options include military court-martial under Article 18 of the Uniform Code of Military Justice (UCMJ), federal prosecution under the War Crimes Act of 1996, or deferral to the United Nations in the hope that an international criminal tribunal such as those established for Yugoslavia and Rwanda, or the proposed International Criminal Court, will be organized in a timely and acceptable fashion.
The best option is the one that allows us to dictate the form of the proceedings: the UCMJ. Article 18 of the UCMJ provides that "general courts-martial . . . have jurisdiction to try any person who by the law of war is subject to trial by military tribunal and may adjudge any punishment permitted by the law of war." Rather than exclusively premise itself on domestic criminal law, Article 18 draws its jurisdictional breadth from the universal jurisdiction of international law. This important distinction allows prosecution of any perpetrator for serious violations of international humanitarian law, no matter where, by whom, or against whom they are committed.
This is in stark contrast to the War Crimes Act of 1996, which permits the United States to prosecute only if the "person committing such war crime, or the victim of such war crime, is a member of the Armed Forces of the United States or a national of the United States."1 In 1996, while debating the War Crimes Act, Congress expressed its reservations about granting "universal jurisdiction" to domestic courts. Members argued against expanding jurisdiction "into conflicts in which this country has no place and where our national interests are slight."2 Their opinion most certainly would have been different had it been formulated after 11 September.
There also are policy reasons to proceed under the UCMJ rather than in domestic court or before an international U.N. tribunal. Foremost, domestic courts are not best suited to wartime prosecutions. Military courts and military personnel are better qualified to sit in judgment of other warriors. Courts-martial do not involve everyday civilian jurors but empanel soldiers, mostly officers, to hear evidence. While due process is afforded to the accused, a guilty verdict does not require near unanimity, and the "jury" determines the proper sentence. Most important, domestic courts would not be able to prosecute terrorists who commit war crimes on foreign soil against foreign nationals. By using the universal jurisdiction of Article 18, the United States could bring each captured enemy to justice no matter where or against whom the individual operated, while projecting the wartime stance that our country should be taking.
Waiting for the United Nations to act also might present problems. A U.N. court would not be under our direct control, might not contain a fully acceptable statutory mandate, and might not become available in time to prosecute those responsible for the 11 September attacks.3 Should these problems be overcome to our government's satisfaction, however, it would be prudent to support the U.N. tribunal while insisting that it grant concurrent jurisdiction with U.S. courts-martial. Such an arrangement would allow us to decide on the appropriate forum, in effect granting the United States a "right of first refusal."4 An international tribunal also could help to enforce the Geneva Conventions'mandate on nations to prosecute or extradite persons guilty of grave breaches regardless of their nationalities.5
Since 11 September some have supported the exclusive use of an international court, arguing that a tribunal of U.S. military personnel would lack international credibility and would become suspect in the eyes of some Arab nations. This criticism should be answered strongly and unequivocally—our country offers accused perpetrators the world's most liberal due process guarantees and most resoundingly fair system of jurisprudence. We will not stand by and watch offenders wallow for years awaiting trial or, worse, fall through the cracks. We will not allow nations to harbor offenders under the guise of protecting them from a falsely labeled "kangaroo court." One need only study the Lockerbie victims' decade-long quest for justice to understand this point.
If our nation wishes to wage a global war against terrorism, and not merely pursue a more benign criminal investigation, we must send a single, unwavering message militarily, diplomatically, and legally. And we should do so on our own terms.
In recent weeks many news agencies have reported why terrorists believe the United States cannot prevail in this war: our devotion to civil liberties and due process makes us weak and powerless against those willing to martyr themselves. But when our sound ethics are combined with the acceptable force of the law of war, the enemy's miscalculation inevitably becomes our victory.
Captain Farkas is assigned to the 455th Military Police Detachment in Uniondale, New York, as a legal liaison officer. In civilian life, he is senior trial assistant district attorney, Homicide Bureau, Brooklyn District Attorney's Office, New York. He relied significantly on the research of Major Jan E. Aldykiewicz, U.S. Army, Judge Advocate General's Corps, in preparing this article. Major Aldykiewicz is assigned as chief, Criminal Law, I Corps, at Fort Lewis, Washington.
1. 18 United States Code Section 2441. back to article
2. House of Representatives Report No. 104-698 (1996), p. 8, reprinted in United States Code Congressional and Administrative News (1996), pp. 2166, 2172. back to article
3. The United Nations has taken a good first step in the direction of establishing an international tribunal, however, by invoking its Chapter VII authority to take measures necessary to "maintain or restore international peace and security." The United Nations did so by passing resolutions condemning the 11 September attacks as a "threat to international peace and security." (See U.N. Charter, Chapter 7, article 39.) Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established pursuant to the Security Council's Chapter VII authority. back to article
4. Such arrangements exist with the ICTY and ICTR. Since 1996 Switzerland has held two military tribunals for war crimes in Bosnia-Herzegovina and Rwanda, crimes committed by nonnationals. In 1996 Switzerland complied with a request by the ICTR to transfer a case involving a Rwandan citizen to its jurisdiction. back to article
5. Geneva Conventions I-IV, Grave Breach Provisions, 75 U.N.T.S. 31, 85, 135, 287 (1949). back to article