September 11 and the Laws of War

Abstract

Do the laws of war govern the September 11 attacks? Did the attacks constitute "war crimes"? These questions are difficult because they touch upon complex legal problems involving deep conceptual ambiguities in international humanitarian law. It is unclear under what conditions the laws of war apply. This ambiguity arises from the combination of two related developments in the laws of war: (1) The laws of war now govern de facto as well as de jure warfare; and (2) the laws of war now govern internal as well as international armed conflict. The central difficulty is how best to define the scope and content of international humanitarian rules applicable in non-international armed conflict. In this Article, I argue that the September 11 attacks violated the Common Article 3 of the Geneva Conventions; and that this determination has important consequences for both U.S. antiterrorism policy and international humanitarian law. Careful scrutiny of the treaty text, structure, and history of the potentially applicable laws of war strongly supports the conclusion that the terrorist attacks of September 11 constituted the initiation or confirmation of an "armed conflict" within the meaning of international law; and that the attacks were "war crimes." The dual concerns that animate the scope and content of Common Article 3 - humanitarian protection and state sovereignty - are best served by this reading of "armed conflicts not of an international character." The laws of war offer a proven, durable mode of imposing principled constraints on organized violence. This widely-accepted, fully articulated normative framework should guide efforts to fashion an effective, humane response to new forms of organized violence - including catastrophic terrorism.