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Published online by Cambridge University Press: 06 March 2019
Nowadays, widespread consensus exists that the dramatic events of September 11, 2001 changed not only the country that suffered these attacks but also the way many in the West view the world outside this exclusive circle. For quite a number, it confirmed Huntington's thesis of a clash of civilizations – a vision of a future of ‘us’ versus ‘them'. But as the attackers were being identified, it became clear that in a sense they came from among us; although technically foreign nationals all, they lived and studied inconspicuously in western, multicultural societies. How are we then to deal with this enemy within? How is democracy to fight this so-called War on Terror and survive? Such questions are obviously not new. Bearing De Tocqueville's assertion in mind that a long war is not needed in order to put freedom at risk in a democratic society, this article, using the technique of a thought experiment, seeks to examine the increased prerogatives that governments – fearing the enemy within – have granted themselves in the realm of criminal law to deal with the perceived threat. This experiment will bring the reader, in a non-specialist way, from the criminal justice system of Germany to the possible role of an operational International Criminal Court, and from the criminal justice system of the United States to military tribunals as a means of dealing with what those in power claim is an extraordinary threat.
1 Huntington, S., The Clash of Civilizations, 72 Foreign Affairs 22-49 (1993); B. Tibi, Fundamentalismus im Islam (Darmstadt 2000).Google Scholar
2 Those who carried out and provided the logistical support for the 9/11 attacks had studied in Germany, the United States, lived in the UK etc.; similarly, those accused of the Madrid bombings have been present in the country for a number of years and were registered at universities there.Google Scholar
3 According to President Bush, the ‘war on terrorism’ is a ‘war’ on many fronts: foreign governments will have to choose between supporting the war on terrorism or not; terrorists’ financial networks will be dismantled; the military will be on the highest alert for a just battle; internal, domestic safety will be increased by a set of legal measures; and the perpetrators of these random killings and of the attack on civilization will be brought ‘to justice'. Taken from Bush's State of the Union Address 9 days after the attacks: J.W. Edwards & L. DeRose, United We Stand – A Message for All Americans (Ann Arbor, MI 2001).Google Scholar
4 A. de Tocqueville, Democracy in America 621 (Harvey C. Mansfield & Delba Winthrop ed., Chicago UP, 2000).Google Scholar
5 Edwards, supra note 3.Google Scholar
6 When this paper was first conceived the courts had yet to provide guidance as to the course they intended to follow; the recent days of course have seen the German courts make their mark in the war on terror gratifyingly similar to the lines envisaged here. See Infra note 15.Google Scholar
7 Lelyveld, J., In Guantanamo, The New York Review of Books, Nov. 7, 2002 (quoting an officer: “If we put them in the Waldorf Astoria, I don't think we could get them to talk”).Google Scholar
8 G.A. Res. 1368, U.N. (2001).Google Scholar
9 In Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, Habermas cites the abolition of the death penalty as one of the defining elements of European identity. Habermas, Unsere Erneuerung. Nach dem Krieg: Die Wiedergeburt Europas, Frankfurter Allgemeine Zeitung, May 31, 2003.Google Scholar
10 NJ, 1991, 249 (Short) (Dutch Case Law).Google Scholar
11 North Atlantic Treaty, Apr. 4, 1949, art. 7, 3.Google Scholar
12 Soering v. UK (1989); available at http://hudoc.echr.coe.int/hudoc/. The Soering case is particularly pertinent as the applicant – a German national accused of the murder of his girlfriend's parents – faced the death penalty if convicted in the US; the Court did not conclude that the death penalty per se was contrary to the provisions of Article 3 but rather held that the manner in which it was imposed or executed or the conditions of detention whilst awaiting execution were two factors that may, dependent upon the circumstances of the case, constitute a breach of Article 3. The severity of the conditions in which detainees in Guantanamo Bay are kept leaves little doubt that the threshold of inhuman and degrading treatment would be met, even without the allegation that torture is a regular tool of interrogation there.Google Scholar
13 Y.B Eur. Conv. on H.R. Article 5; Article 9 ICCPR, and U.S. Const. amend. V.Google Scholar
14 Provisions of the Patriot Act and the changes it brought are considered in more detail below.Google Scholar
15 Hartwig, M., The German Federal Consitutional Court and the Extradition of Alleged Terrorists to the United States, 5 German Law Journal, 3 (2004), at http://www.germanlawjournal.com. On the recent overturning of alleged terrorist convictions by the German Federal Criminal Court, see http://www.rferl.org/featuresarticle/2004/3/76BF1BD9-921B-4DDB-A5BC-28CC94328693.html; http://news.bbc.co.uk/1/hi/world/europe/3592857.stm.Google Scholar
16 In this respect, one can allege that the 9/11 crime falls into the same category as the assasination of 8,000 Kurdisch civilians in Halebja in 1988 or that of 7,000 Muslims in Srebrenica in 1995, to mention only a couple of examples. It almost goes without saying that so far states have been far more efficient in the killing of innocents than any terrorist organisation. That Bin Laden should be tried on the charge of crimes against humanity is also suggested by G. Robertson, Crimes against Humanity – The Struggle for Global Justice 507-510 (2d ed. Harmondsworth 2002).Google Scholar
17 “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation….”Google Scholar
18 See Y. Bodansky, Bin Laden – the man who declared war on America 279-280 (New York 2001) (1999). See also ‘… to kill the Americans and their allies – civilian and military – is an individual duty for every Muslim …'. The International Islamic Front for Jihad against Jews and Crusaders, February 23, 1998 at http://www.fas.org/irp/world/para/docs/980223-fatwa.htm.Google Scholar
19 A claim that places the German Government admittedly in direct contravention of Art. 11(1) of the Rome Statute.Google Scholar
20 Arendt, H., Eichmann in Jerusalem 269 (Harmondsworth 1994) (1963) (concurring with previous similar comments by K. Jaspers).Google Scholar
21 A salient but often forgotten detail in this context is the fact that ideas of an international criminal court as it functioned for the first time in Nuremberg do not originate from (the context of) the Second World War and the Charter of London, but rather from the First World War. After Germany's defeat, an international tribunal was pursued, in particular to try the German emperor (under the slogan ‘Hang the Kaiser', Treaty of Versailles, sec. 227-9). At that time, the Dutch Government objected. By not extraditing the German emperor, who fled to The Netherlands, and calling upon its neutrality, The Netherlands obstructed this first step towards international criminal justice. See, e.g., T. Bowder, Blind Eye to Murder 17-19 (London 1995) (1981); Robertson, , supra note 16, at 225-6.Google Scholar
22 Robertson, , supra note 16, at 350. This is the principle of complementarity.Google Scholar
23 The story of the Saudi authorities stripping Bin Laden of his citizenship was carried by the BBC. Kuwait Disowns Bin Laden Aide, CNN, Oct. 14, 2001, at http://news.bbc.co.uk/hi/english/world/middle_east/newsid_1599000/1599088.stm. However, an international arrest warrant for Bin Laden posted on the interpol website in 1998 lists his nationality as Saudi Arabian. http://www.interpol.int/public/Wanted/Notices/ (accessed 15th April 2004).Google Scholar
24 Even though many argued that it is exactly the principle of complementarity that “offers a greater protection to American personnel than current international practice and/or status of forces agreements that uphold a sovereign nation's exclusive jurisdiction to try and punish offences committed by persons of any nationality within its borders”, United Nations Association of the United States of America, http://www.unausa.org/dc/advocacy/iccfact.htm. In connection with this, this principle would also render obsolete the notorious and at first secret appendix B (granting immunity to NATO personnel from any form of arrest) to the unsuccessful Rambouillet- negotiations preceding the Kosovo war.Google Scholar
25 Tadic Case (Prosecutor v. Dusko Tadic), International Criminal Tribunal for the former Yugoslavia, The Hague, (1995) (published on the internet at http://www.un.org/icty/tadic/appeal/decisione/51002.htm.)Google Scholar
27 Additionally, the Act forbids any cooperation with the ICC, on the level of intelligence cooperation, like handing over classified national security material (Section 6) on the level of physical extradition of suspects to the ICC (Section 4 c), and on the level of military support to countries that do recognize the ICC (Section 7 a). The US tries to circumvent the ICC's jurisdiction by means of bilateral agreements, on the basis of article 98 of the ICC Statute: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.Google Scholar
28 Possibly using the slogan: “Fac et excusa” (act first and justify later), as, for instance, cited by I. Kant, Perpetual Peace – A Philosophical Sketch, in Kant's Political Writings 120 (H. Reiss ed., Cambridge UP 1970). Moreover, for the German government's ‘disappointed’ reaction to the FCC's ruling on Mounir El Motassadeq's case, see http://www.bundesregierung.de/-,413.616894/pressemitteilung/Schily-Entscheidung-ist-zu-bed.htm.Google Scholar
29 See also W.E. Scheuerman, Rethinking Crisis Government, in 9 Constellations 492-505 (2002).Google Scholar
30 New anti-terrorist legislation has also been implemented in countries like the UK, France and Germany, and in the EU as a whole. On Britain's detention camp under this legislation, see http://observer.guardian.co.uk/waronterrorism/story/0,1373,1106664,00.html.Google Scholar
31 See, e.g., S. Taylor Jr., Congress Should Investigate Ashcroft's Detentions, The Atlantic Monthly (May 28, 2002); Dworkin, R., The Threat to Patriotism, New York Review of Books (February 28, 2002). Today, such harsh detention regimes are also being applied to US citizens, like José Padilla, see, e.g., R. Dworkin, Terror & the Attack on Civil Liberties, New York Review of Books (November 6, 2003).Google Scholar
32 Supreme Court decision 2491, 2500 (2001), in ‘Zadvydas v. Davis’ evidences that “the Due Process Clause applies to all ‘persons’ within the United States, (Fifth Amendment: “no person shall be held to answer for a capital, or otherwise infamous crime, (…) without due process of law”) See also R. Dworkin, The Threat to Patriotism, New York Review of Books (February 28, 2002); ACLU letter to Secretary of Defence Rumsfeld, January 15, 2002, http://www.aclu.org/NationalSecurity/NationalSecurity.cfm?ID=9301&c=111.Google Scholar
33 See, e.g., R. Dworkin, Freedom's Law – The Moral Reading of the American Constitution 10, 25 (Oxford 1966); Dworkin, R., Terror & the Attack on Civil Liberties, New York Review of Books (November 6, 2003).Google Scholar
34 R. Dworkin, The Threat to Patriotism, New York Review of Books (February 28, 2002).Google Scholar
35 See R. Dworkin, Terror & the Attack on Civil Liberties, New York Review of Books (November 6, 2003).Google Scholar
36 The question of the applicability of the Geneva Conventions in the War on Terror is controversial and has been the subject of vast amounts of print. The conflicts in Afghanistan and Iraq are clearly international armed conflicts and, as all are parties to the Geneva Convention, the conclusion suggested here is that the Geneva Conventions as well as customary international humanitarian law apply in full; as McDonald and Sullivan note, international humanitarian law must be interpreted in light of the principles thereof, such as the Martens Clause of 1899, and that such guiding principles ensure the applicability of the Geneva Conventions even in types of conflict previously unseen, such as a so-called War on Terror. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 301 (2003). While the Bush administration clearly disagrees, they have failed to provide a legal reason upon which they base their decision, asserting instead that the Conventions are simply no longer relevant in this not-so-brave new world. See also http://www.icrc.org/Web/Eng/siteeng0.nsf/0/C82A7582AE20DCD1C1256D34004AEA41/$File/George+Aldrich_3_final.pdf?OpenElement.Google Scholar
37 According to the State Department, Al-Qaeda is “not a state party to the Geneva Convention; it is a foreign terrorist group”. Status of Detainees at Guantanamo, US Department of State Policy Document, Feb. 7, 2002, http://www.state.gov/p/sa/rls/fs7910pf.htm.Google Scholar
38 Security Council Res. 1368 at para. 1 (12 Sept. 2001).Google Scholar
39 Supra note 25. Noëlle Quénivet, The “War on Terror” and International Humanitarian Law, available at http://www.ruhr-uni-bochum.de/ifhv/news/Tashkent_Speech%20Quenivet.pdf.Google Scholar
40 It is assumed, for ease, that it is accepted by all that Additional Protocols I and II have not attained the status of custom and thus do not apply (the US is not a signatory and nor are any of the parties against whom it considers its enemies). The application of the Protocols effects the definition of combatant but will not be considered here.Google Scholar
41 Third Convention's Article 4 enumerates: “A. Prisoners of war are …. 1. Members of the armed forces ….; 2. Members of other militias and members of other volunteer corps, …, provided that … (they) … fulfil the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of conducting their operations in accordance with the laws and customs of war. 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 4. Persons who accompany the armed forces without actually being members thereof, ….; 5. Members of crews (…) who do not benefit by more favourable treatment under any other provisions of international law. 6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. B. The following shall likewise be treated as prisoners of war under the present Convention: ….”.Google Scholar
42 Or: ‘protected persons', see J. Cerone, Status of Detainees in International Conflict, and their Protection in the Course of Criminal Proceedings, The American Society of International Law Insights, http://www.asil.org/insights/insigh81.htm.Google Scholar
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45 At the time of writing, some 650 persons from around 42 countries are being held there.Google Scholar
46 In order to have the lawfulness of their detention tested by the court.Google Scholar
47 This distinction might not work since some argue that Al-Qaeda was part and parcel of the Taliban Government, Robertson, supra note 16, at 478, 480, 496. See also Article 75 Geneva protocol I (ratified neither by the US nor by Afghanistan, but nevertheless regarded as customary law). For a different view, see A. Roberts, Counter-terrorism, Armed Force and the Laws of War, http://www.ssrc.org/sept11/roberts_text_only.htm (also published in 44 Survival 2002.Google Scholar
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50 Indeed, the US Government is quick to demand the application in full of the Geneva Conventions where its personnel are involved in quasi-legal situations. The capture of Army Chief Warrant Officer Michael Durant in the course of a US operation against the Somali warlord Mohamed Farah Aideed – a non-state party to the Conventions – saw the US Government demand that his treatment be consistent with the provisions of the Third Convention. Details taken from McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 301 (2003)., who note futher, “If the Geneva Conventions are binding on Somali warlords, non-state parties must be granted the same protection.” McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 310 (2003).Google Scholar
51 Despite White House legal Counsel Gonzales's leaked memo that modern terrorism ‘renders obsolete strict limitation on questioning of enemy prisoners, quoted in: S. Taylor Jr., We Don't Need to Be Scofflaws to Attack Terror, The Atlantic Online, (Feb. 5, 2002). See Third Convention, Art. 17. See also Universal Declaration of Human Rights, Art. 5; International Covenant on Civil and Political Rights, Art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The latter prohibits in its Art. 2 (2) the use of torture under emergency situations. Moreover, McDonald and Sullivan argue persuasively that Art. 17 of the Third Convention does not prevent interrogation and suggests that the authorities could have interviewed detainees without needing to deprive them of POW guarantees. McDonald & Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the “War on Terror”, 44 Harvard Journal of International Law 310 (2003).Google Scholar
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63 71 US (4 Wall.) 2 (1866).Google Scholar
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90 Kagan, R., Power and Weakness, 113 Policy Review 1 (2002); fortunately for the Europeans, Kagan adds that ‘the US is a Behemoth with a conscience, a liberal, progressive society through and through.’ The article was followed by a book Of Pradise and Power (New York, 2003), which added little to the main thrust of the argument. For an interesting comment on Kagan see D. Runciman, A Bear Armed with a Gun, London Review of Books, 3 Apr. 2003.Google Scholar
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92 See, for example, L. Strauss, Natural Right and History, 181 (Chicago 1950).Google Scholar
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94 Kant, I., Reflexionen zur Rechtsphilosophie, 19 Akademie Ausgabe 504 (No. 7740, see also 7737).Google Scholar
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