Terrorism and International Criminal Law after the Military Commissions Acts

Santa Clara Journal of International Law, Dec 2010

By Stephen I. Vladeck, Published on 01/01/10

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1077&context=scujil

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: - 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)


This is a preview of a remote PDF: https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1077&context=scujil

Stephen I. Vladeck. Terrorism and International Criminal Law after the Military Commissions Acts, Santa Clara Journal of International Law, 2010, Volume 8, Issue 1,