The events of September 11th have drawn the United States into a far more obscure and expansive war than any war of the last century

The Appropriate Response to the Targeting of Civilians for a Military Purpose

Margot Alexander

The events of September 11^th have drawn the United States into a far more obscure and expansive war than any war of the last century. Although the targeting of the World Trade Center and the Pentagon by terrorists captured American interest in combating terrorist acts, terrorism is a global problem, and must therefore be fought and punished globally. A global court put into effect to punish terrorists is the best option available for the punishment of captured enemies in the War on Terrorism. The International Criminal Court is a manifestation of such a global court, and is currently supported by a large number of nations around the world. In order to be victorious in the War on Terrorism, the United States must support the International Criminal Court.

In order to make the link between the International Criminal Court and the War on Terror, the specifics and history of the court itself must first be explained. The International Criminal Court (ICC) originated at an international conference in Rome on July 17, 1998, where over one hundred countries voted to adopt a treaty creating the ICC.[1] The ICC is an independent, permanent tribunal whose primary mission is to investigate and prosecute individuals, not states, who commit serious crimes against humanity, genocide, and war crimes. This tribunal “will only act in cases where states are unwilling or unable to do so - known as the principle of complementarity.” [2] This means that no soldier will be tried in the ICC if he is first tried fairly by his or her own country.

The ICC is composed of eighteen elected judges and one elected prosecutor. Only states that have ratified the Rome treaty can nominate and elect judges and prosecutors. The court has jurisdiction over crimes committed in the territories of ratifying states and crimes committed anywhere in the world by citizens of ratifying states. Because the United States has not signed on to the ICC, the tribunal does not have jurisdiction over crimes committed on American soil, but it does have jurisdiction over American citizens who commit crimes in ratifying states. The ICC is non-retroactive, and cases can be brought to the court by any state, the Security Council, or initiated by the prosecutor.[3]

The ICC is meant to replace the use of ad hoc tribunals to settle issues of war crimes. Ad hoc tribunals are temporary courts set up to prosecute war criminals for a specific instance, such as the Nuremberg Tribunal, which was created solely to try Nazi war criminals. While these ad hoc tribunals are highly specialized, they take time to set up. A permanent tribunal such as the ICC negates such delay and allows defendants the right to a more speedy trial.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) is an ad hoc tribunal currently in operation in The Hague, Netherlands. This tribunal was established on 25 May 1993 by the United Nations Security Council in response to violations of international humanitarian law committed by various individuals in the former Yugoslavia since 1991.[4] An argument against tribunals such as the ICTY is that they are merely show trials that facilitate nothing more then victor’s justice. There is truth in this argument as applied to ad hoc tribunals of the past. A prime example of this is the Nuremberg and Tokyo War Crimes Trials.

The tribunal at Nuremberg was set up to try Nazi war criminals at the end of World War Two. By their own admission, the Nazi party committed genocide, crimes against humanity, and numerous war crimes; therefore a tribunal to prosecute the offending individuals was very appropriate. What made the Nuremberg Trials an example of victor’s justice is not that the prosecutions were unwarranted; it is the fact that the Allies were never investigated for possible war crimes, and the blatant crimes against humanity committed by Stalin were never addressed. Anti-American sentiment is fueled by this double standard. In Vietnam, “during the period between 1 January 1965 and 31 August 1973, there were 241 cases (excluding My Lai) which involved allegations of war crimes against United States Army Troops.”[5] On March 16, 1968, Lt. William Calley led his troops into the village of My Lai. Calley ordered his troops to fire upon the inhabitants of the village, resulting in the deaths of hundreds of women, children, and the elderly.[6] These people were unarmed non-combatants, making Calley’s order to kill them unlawful. Despite the grievous nature of Calley’s actions, he was given nothing more than a show trial by the United States government. Calley served less than five months of his sentence and received a pardon from President Nixon.[7] It is just such hypocrisy that casts an ill light on the United States. The ICC is designed to prevent this type of victor’s justice by prosecuting war criminals whose state of origin fail to adequately do so.

More importantly than the speed advantage and elimination (or at least reduction) of victor’s justice offered by a standing global court, the ICC also acts as a strong, internationally united force against war crimes and human rights violations committed by individual states. Also, with the creation of the ICC comes the creation of uniform law and procedure for the conduct of court proceedings. Criminals in the ICC are prosecuted under set charges and standards, rather than under the interpretation of customary international law and case law. The ICC is the embodiment of the international condemnation of excessive violence and cruelty, and it is therefore the perfect venue for trying international terrorists.

That said, we will now explore why the ICC is so crucial to fighting terrorism. The War on Terrorism is not by any means traditional war; our enemy is undefined, extremist, and unpredictable. Wars were fought in the 20^th century where there was a defined front and a clear enemy; where victory was won by killing and demoralizing the enemy and then negotiating specific peace terms. The War on Terror cannot be won in this way. Terrorists do not situate on a specific front, their leaders are hidden, and they wear no uniform. We cannot kill an enemy we cannot see. Even if every terrorist were killed, the War on Terror would not be won because new terrorists would emerge. Terrorism is based on an ideology, and it is that ideology that must be destroyed. The focus of the War on Terror should be prevention, not retribution, in order to stop terrorism forever and be truly victorious. The International Criminal Court is a necessary vehicle to this end, because it puts the focus of the War on Terror on justice and condemnation of violence.

Currently, the United States is doing very little to break down the anti-Western sentiment that fuels terrorist ideology. Although initially the United States petitioned the world for aid and support in the fight against terrorism, our efforts have in actuality been more individual than collective. Our fervor for stamping out suspected terrorists has actually proven only to alienate the United States from the global community and lead to the condemnation of our actions. A prime example of this is the prison at Guantanamo Bay. Currently there are nearly six hundred prisoners from over forty countries being held there without trial. This situation has been expressly condemned by the International Committee of the Red Cross and by several members of the international community. [8] United States law prohibits the holding of a prisoner without a trial, and to do so is contrary to American values. Our treatment of prisoners at Guantanamo Bay sends a message to the world that we are unwilling to afford those rights that we seem to cherish to non-Americans. It is this very sentiment that feeds the anti-American terrorist ideology.

Rights violations and other actions such as those being committed by the United States right now at Guantanamo do more than feed terrorist ideology, they also further their goals. Terrorists seek to bring the fall of democracy and true freedom, and they know that acts of terror can inspire people to give up many of their civil liberties in order to increase security. This is evidenced by the September 14^th resolution, the Patriot Act, which gives the U.S. government more power to conduct search and seizure operations with less probable cause. We also devalue the rights of all people by the suggestion of using military tribunals to prosecute suspected terrorists. By using methods such as secret military tribunals to prosecute terrorists, we help further their goal of reducing the freedom our country is founded on.

The American War on Terrorism resembles the relationship between a parent and a rebellious child. The harder the United States tries to crack down on terrorists by holding them without trial, attacking the governments of the nations that harbor them, and subjecting them to secret military tribunals, the harder the terrorists will fight back against us. Violence begets violence. This is evidenced by the situation between Israel and Palestine in very recent times. As strong as the United States is militarily, we still need the world to help us stop terrorism. If every nation stands together in opposition of terror tactics and inhumane treatment of all people, then the terrorist ideology will begin to break down. Then it will not be just a parent scolding a rebellious child, but peers and an entire community condemning the acts of terror.

The ICC right now is not, by any means, perfect. But by not joining the ICC out of fear that it could be used as a political vehicle for anti-Americanism, we essentially increase anti-American sentiment by snubbing our noses once again at the global community. We must look long-term to build a better relationship with the world- this is well achieved through cooperation and trust. By not joining the ICC, yes, we avoid a potentially bad situation, but we gain nothing, and our international position is ultimately set back. What better a way for the United States to present itself as focused on justice and peace rather than revenge, then to join the ICC?

On September 11^th, 2001, America was changed, and it is not possible for us to go back to a time before the War on Terrorism. The death of thousands of innocent civilians came to the entire world as a great tragedy, and our initial response has been one of retribution and revenge. This type of response may be natural and even justified, but it is not the appropriate response to the targeting of civilians for a military purpose. The rule of law, applied through the International Criminal Court, is the appropriate type of justice for terrorism; it is the vehicle through which the voice of the world can be heard in one united cry to end terrorism once and for all.

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