Terrorism and International Criminal Law after the Military Commissions Acts
Santa Clara Journal of International Law
Terrorism and International Criminal Law aft er the Militar y Commissions Acts
Stephen I. Vladeck 0
Recommended Citation
0 Stephen I. Vladeck, Terrorism and International Criminal Law aft er the Military Commissions Acts , 8 Santa Clara J. Int'l L. 101 (2010). Available at:
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Article 6
Terrorismand InternationalCriminalLaw After the Military CommissionsActs
Terrorism and
International Criminal
Law After the Military
Commissions Acts
Stephen I. Vladeck*
There is much that is compelling about Naomi Norberg's cogent discussion of
the relationship between terrorism and international criminal law, and of her
central thesis-that the two are actually quite a poor fit for each other.' For
starters, it strikes me as beyond dispute that many of the more heinous acts of
terrorism with which we are familiar are already prohibited under international
law-and even punishable in some cases in various of the international criminal
tribunals, particularly the International Criminal Court (ICC). 2 Thus, one may
*
Professor of Law, American University Washington College of Law. This article was
2.
prepared in conjunction with the Santa ClaraJournalof InternationalLaw's Symposium
on "The Future of International Criminal Justice," for my participation in which I owe
thanks to Beth van Schaack and David Sloss. Thanks to Nutan Patel for splendid research
assistance; thanks also to my co-commentators-Kathleen Dunn, Luz Nagle and Jordan
Paust-and especially to Naomi Norberg for providing such a thorough and thoughtful
platform for the conversation stimulating these papers. In the interest of full disclosure, I
should note that I have played a recurring role on the legal team in Hamdan, particularly in
the proceedings before the D.C. district court discussed herein. Needless to say, the views
expressed in this response are mine alone.
See Naomi Norberg, Terrorism and InternationalCriminal Justice: Dim Prospectsfor a
Future Together, 8 SANTA CLARA J. INT'L L. 11 2010).
In particular, the ICTY has recognized (albeit not without controversy) that terror against a
civilian population is a war crime, and is therefore within that tribunal's jurisdiction. See
Prosecutor v. Gali, Case No. IT-98-29-T, Judgment, 1 86-138 (Dec. 5, 2003); see also
BETH VAN SCHAACK & RONALD C. SLYE, INTERNATIONAL CRIMINAL LAW AND ITS
ENFORCEMENT: CASES AND MATERIALS 555-72 (2007) (discussing Gali6). The ICC has
not yet reached the issue, although various scholars have argued that it would similarly be
able to exercise jurisdiction over terrorism as either a war crime or a crime against
rightly question whether there is anything to gain, at least at the international level,
from creating a new standalone crime of terrorism. Further, I agree with Professor
Norberg that there is a danger that treating "terrorism" (however defined 3) as an
offense under international criminal law might undermine the significance of
international criminal justice for the more traditional "international" crimes going
forward. The broader the class of crimes that international criminal tribunals are
given the power to prosecute, the more we risk diluting the significance of the
crimes over which they have exercised jurisdiction to date.
That being said, Professor Norberg's article also suggests that defining
terrorism as a crime under international criminal law would negatively impact
human rights, because it would provide cover for states to adopt extraordinary
measures-including preventative detention and trial by military commission-in
the guise of preventing this international offense. As she writes,
[E]levating the status of terrorism from internationalized to international crime may have
the same effect as [various U.N. Security Council] resolutions: to incite states to take
increasingly harsh measures. Many of these measures limit fundamental rights to an extent
that may be considered disproportional; in some cases they lead to violations of the
prohibition against torture. ICC jurisdiction [over terrorism] could be interpreted as
approval of such measures, while, again, they h4ave little in common with those taken to
combat the crimes already within its jurisdiction.
At least with regard to practice within the United States, I disagree. Instead, as I
argue in the short response that follows, the U.S. government's response to
September 11 has been remarkably indifferent to the actions that international
criminal law both countenances and proscribes. Where it finally surfaced,
international criminal law provided an important constraint on President Bush's
November 13, 2001 Military Order creating military commissions,' at least for the
plurality of the Supreme Court in Hamdan that concluded that conspiracy was not
recognized as a crime under the laws of war-and therefore fell outside of the
authority for military commissions that Congress had conferred.6 Moreover, and as
importantly, I believe that intemational criminal law (...truncated)