Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt,
And the Asymmetries of the International Legal Order
115 Pages Posted: 14 Oct 2001
This Article explores international and criminal law issues involved in U.S. and transnational responses to the tragic events of September 11, 2001. The thesis is raised that the September 11 attack constitutes a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non-state actor. This means that the attack is more appropriately categorized as a criminal or outlaw attack, not an armed attack or act of war. Under traditional public international law, this finding may problematize the legality of the military strikes initiated by U.S. and British forces on October 7, 2001. However, on a more prospective note, state practice and international organization response to the strikes suggest: (1) a transformation in the treatment by international law of the use of lethal force when undertaken for humanitarian or security purposes (in this regard, building upon the precedent set by NATO's intervention in Kosovo); (2) an expansion of state responsibility for individual criminals who may not be effectively controlled by a state; (3) a diminution of the role of the Security Council and United Nations on matters of global peace and security; and (4) an increase in the elasticity of individual and collective self-defense under Article 51 of the Charter of the United Nations. However, categorizing the violence as criminal does not end the inquiry. Actually, this only begins the process of reflection. How should criminal law respond to egregious behavior by non-state actors? Should punishing such behavior be the task of domestic criminal law or, rather, international criminal law? If international criminal law is the appropriate paradigm, how ought it to be applied to the September 11 attacks? Under what methods and procedures, and in which fora, should alleged terrorists or conspirators be tried? This Article suggests that trials will have to be carefully designed in order to deter future terrorist violence. This may necessitate the inclusion of culturally pluralist approaches. The need for this cultural contextualism may clash with the increasing hegemony of Western criminal trials as the mechanism to implement putatively "universal" criminal justice.
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