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Human Rights Quarterly 24.2 (2002) 323-360

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Judging the 11 September Terrorist Attack

Mark A. Drumbl

I. Introduction

The heinousness of the 11 September 2001 attack is painfully clear. But why it happened, how it is to be legally defined, and what to do about it are painstakingly complicated. 1 This article defines the attack as a non-isolated war-like attack undertaken against a sovereign state by individuals from other states operating through a non-state actor. 2 This means that the attack contains elements of both an armed attack and a criminal attack.

Nonetheless, this article argues that the attack should be treated as a criminal attack and, as such, the proper legal response to it is one that emerges from the purview of the criminal law. However, this is not a matter to be left to domestic criminal law. Rather, the war-like nature of the attack suggests that it must be recognized as being among the "most serious crimes [End Page 323] of concern to the international community as a whole" 3 and, accordingly, be addressed by international criminal law and process.

Serious thought should be given to the manner in which accused terrorists and conspirators are to be tried, in particular those presently detained in the United States, Afghanistan, Europe, and at Camp X-Ray. Some thought already has been given to this question. Two dominant—and overlapping—options have emerged in public and political discourse. The first option is to try these accused in general criminal courts in the United States or Western Europe. This is the position of some members of the US Department of Justice, who will "make sure that any prosecutions for the Sept[ember] 11 terrorist attacks be brought in US federal court, instead of an international or military tribunal." 4 A senior federal prosecutor has said, "We're going to do it the plain old-fashioned way." 5 The second option, a position favored by other members and branches of the US government, is to proceed before special military commissions. A Presidential Order enabling the creation of these commissions was adopted in November 2001, draft regulations regarding their operation were circulated in December 2001, and actual rules issued in March 2002. 6

However, this article argues that domestic proceedings—either federal court trials or military commissions—may not be a particularly effective way to build a widespread, deep-rooted social norm that condemns terrorism in the places where disaffected individuals may be inspired to join terrorist movements. 7 Nor may such an approach resonate within communities—such as what I learned of the Afghan refugee community 8 —even when [End Page 324] those communities are opposed to the Taliban, terrorism, or violent extremism undertaken in the name of religious fervor. There may therefore be cause to revisit present prosecutorial strategies. Moreover, proceeding before military commissions as presently envisioned may infringe certain principles of international human rights and humanitarian law. 9 [End Page 325]

On 7 October 2001, the United States and United Kingdom initiated military "strikes" 10 against Afghanistan. This, coupled with active support for the Northern Alliance, converted Afghanistan's internal armed conflict into an international armed conflict. These strikes affect attempts to bring the terrorists or the Taliban to book for their crimes. To be sure, these strikes prompted Taliban collapse and resulted in the apprehension of hundreds of suspected terrorists and conspirators. However, this article suggests that the strikes may clash with important aspects of public international law. It is difficult to build a legitimate social norm against terrorism in communities [End Page 326] where the methods used to combat terrorism (strikes or military commissions) themselves may counter international law. On the other hand, the strikes may clash with international law simply because international law as presently constructed may be unable to effectively cope with egregious conduct by non-state actors. If so, then this suggests the need to rethink traditional notions of state responsibility, the law of armed conflict, and the deceptively comfortable inter-state paradigm in which much of international law operates.

To be sure...