THE NEED FOR CLARITY IN ASSESSING THE TERRORIST ACTS:
Why The Acts May Or May Not Constitute War, Crimes, And War Crimes, And Why Definitions Matter

By RUSSELL COVEY

Tuesday, Sep. 25, 2001

The nation's leaders have struggled to accurately label the September 11 terrorist attacks. In his first public remarks upon learning of the attacks, President Bush characterized the attacks as cowardly criminal acts of "mass murder." The President promised "to find those responsible and to bring them to justice."

Concerned about the far-reaching implications of such a war, many — including Peter Spiro, writing for this site — have argued that Bush's initial characterization of the attacks as criminal acts deserving of a law-enforcement response is preferable to waging an ill-defined war.

Others, including Senator Joseph Lieberman and Patrick Buchanan, conflate the "crime" and "war" labels and allege that the attacks were not merely criminal acts, but "war crimes."

Echoing this view, Gary Hart, who recently served as co-commissioner of a task force responsible for evaluating responses to terrorist threats, observed that terrorism eliminates "the distinction between war and crime. War is now conducted by civilians against civilians — un-uniformed people against un-uniformed people using weapons of mass destruction — not playing according to the rules of war of the 18th, 19th, and 20th century."

Who, then, is right? Were the attacks acts of crime or of war? Do they call for military action or a police response? Are they war crimes, and if so, who will stand to answer for them, and before which tribunal?

Why Labels Matter

One might ask, why should it matter what label we attach to the heinous, cold-blooded terrorist attacks? After all, whether conceived as covert strikes carried out by disciplined soldiers in a bloody battle between Islamic fundamentalists and America, or simply as pre-meditated mass murder carried out by a band of international conspirators, the result is the same: more than 6,500 dead, billions of dollars in physical damage, and the nation's sense of well-being permanently scarred.

Although it is true the result will not change, it still matters how we conceptualize these attacks. Labels matter because the terms we choose govern how we organize our thinking — and how we act to respond.

Consider a man who strikes another in a bar fight. If it is called a civil battery, he will have to pay his victim damages, but if it is charged as criminal assault, he may face jail.

Or consider a man who commits a murder in a "heinous" manner. If we call him "sane," in many jurisdictions he can and will be put to death. But if we call him "insane," he faces civil commitment in an institution.

That labels matter in politics, as in law, is well understood by supporters and opponents of abortion rights, who debate the appropriate label for a newly-conceived fetus and vie for the right to characterize the central issue as pro- or anti- "life" or "choice," as if the outcome depended upon it.

How we label the terrorist acts (of course, by calling the attacks "terrorism," we have already picked one label), and how we characterize our response to them, thus carries with it tremendous implications, and requires an understanding of the significance of the labels we use.

Defining "War"

War is a political act of an essentially forward-looking nature. The military strategist Clausewitz once famously observed that "war is the continuation of politics by other means." Like elections or coups, war alters or reconfirms the distribution of power and resources.

While wars may be waged to punish states for aggression, its purpose is less punitive than deterrent or corrective. Wars more typically are fought to remove threats to national or international security, and may be justified before any violent or "criminal" action occurs.

Criminal justice, in contrast, is fundamentally backward-looking. Punishment is imposed in proportion to the severity of the crime committed, and meted out consistent with notions of desert. An unexecuted threat cannot normally be punished. While war presumes collective responsibility, criminal justice imposes responsibility on individuals.

Unlike war, criminal justice is corrupted when politics are present. The most stinging criticism levied by critics of the Nuremberg war crime trials was that the justice sought was a "victor's justice," and the most damning evidence in support was the Soviet presence on the prosecution team, despite that nation's own serious war crimes.

Accordingly, the decision to "wage war" or to "bring the perpetrators to justice" makes a practical difference, because it shapes the way we think about our task, and may influence the methods chosen to achieve those goals.

War and International Law

Traditionally, "war" is defined as "hostile conflict by means of armed forces, carried on between nations, states, or rulers, or sometimes between parties within the same nation or state." The definition of war would seem to exclude armed aggression by or against an individual or organization. In practice, however, we have not observed such formal limitations.

The War Powers Act, for example, applies broadly to the "introduction of United States Armed Forces into hostilities." In addition, a U.S. court considered the laws of war relevant to the treatment of General Noriega after his capture by U.S. forces, despite the U.S. government's denial that a state of war existed with Panama.

Nonetheless, the term "war" seems inapt to describe an action against bin Laden or al Qaeda. Of course, war is commonly invoked as a metaphor to communicate commitment to a cause. Thus, we declare a "war on poverty" and a "war on drugs," but in those cases it is not war in a legal sense that we are fighting, but rather the pursuit of social policy or law enforcement.

A "war on terror" has more in common with the war on drugs than with the Persian Gulf War, in that it identifies no clear foe, but rather opposition to a social phenomenon. Bin Laden may ultimately be brought to justice for this and other terrorist acts, but a campaign to kill or capture bin Laden and his co-conspirators, or a general campaign "against terror," is not properly characterized as a war, regardless of the amount of force exerted to do so. Bringing bin Laden to justice is an exercise in international criminal justice, and recognizes bin Laden as a criminal, pure and simple.

Governments' Involvement in Terrorism May Justify War

The designation of "war" is most meaningful if and when state actors are deemed to be involved. Pursuant to a 1974 United Nations resolution, states breach international law and commit an unlawful act of aggression not only when they directly engage in aggression, but also when "on behalf of a state, armed bands, groups, irregulars or mercenaries, . . . carry out acts of armed force against another state."

Accordingly, the evidence marshalled so far regarding state-sponsored terrorism, and the refusal of the Taliban to cooperate with U.S. efforts to capture bin Laden, are especially significant factors underlying a U.S. justification for war, as opposed to police action. The difference may have substantial collateral consequences for our relations with other states, particularly those that are predominantly Muslim.

In other words, should Afghanistan, Iraq, Iran, or some other state be found to have directed or conspired with the terrorists, then the terrorist attacks are properly attributable to them as breaches of international law and are lawfully subject to appropriate U.S., or international, reprisal. The rhetoric of war is most meaningful in this context, and should be reserved for such a scenario.

Terrorism and War Crimes

As such, the concept of "war crimes" is not plainly relevant to the actions of a "private" terrorist like bin Laden, unless his actions can be directly attributed to a state. The attacks are more plausibly labeled simply as crimes, and their particular criminality is redundantly codified both in international law (as, for example, a violation of the Hague Convention on Suppression of Unlawful Seizure of Aircraft) and domestic law (as murder, a violation of the air piracy statutes, and other crimes).

Like the term "war," talk of "war crimes" thus should be directed not at the purely criminal acts of bin Laden's terrorist troops, which do not deserve elevation to such status, but rather at the leaders of those states that support, direct, or sponsor terrorist acts. Any war crimes tribunal that results from these incidents should be focused on that inquiry.

Accountability Through Law

Indeed, demanding accountability for state-sponsored terror will ultimately make lasting peace possible. One of the principal justifications for conducting war crimes trials at the conclusion of World War II, instead of summary executions, was the need to escape the cycle of collective guilt and retribution. By imposing individual responsibility for the crimes committed by the Nazis on some, the cycle of collective guilt and retribution of the German people, it was hoped, could be ended.

Nuremberg teaches that war and criminal responsibility are not mutually exclusive categories. The best way the Western world can make lasting peace with Islamic fundamentalism is to ensure, after our security needs are met, that the individuals responsible answer for the crimes they have committed, perversely, in the name of this cause.

The attacks and our response to them thus implicate all three terms now in currency. Depending on the evidence, war against states that facilitate, sponsor, or shield state terrorism may be justified to allow us to punish those responsible for the crimes that have been committed on U.S. soil. Meanwhile, the international community must find the courage to impose accountability on state leaders who sponsor or facilitate terrorism. Those tasks are difficult, but clearly defining our terminology will help us to achieve them.


Russell Dean Covey is an attorney at the Washington, D.C. law firm Williams & Connolly LLP. The views expressed are his own.

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