Responsibility, Accountability, and Innocence: Judging the September 11 Terrorist Attack
69 Pages Posted: 16 Nov 2001
This Article defines the September 11 attack on the Pentagon and the World Trade Center as a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non-state actor. Although this means that the attack contains elements of both an armed attack and a criminal attack, this Article proposes that the attack should be treated as a criminal attack. As such, the appropriate legal response to it is one that emerges from the purview of the criminal law. However, this is not a matter to be left to domestic criminal law. Rather, the war-like nature of the attack suggests that it must be recognized as being an act of radical evil that lodges itself among the "most serious crimes of concern to the international community as a whole." Accordingly, it is to be addressed by international criminal law through a multilateral, cross-civilizational, open, and pluralist process. Such a process would: (1) more emphatically denounce the attack; (2) better deter future attacks by building anti-terrorist social norms in places where disaffected individuals join terror networks; (3) diversify international human rights law by including Islamic perspectives; and (4) avoid some of the national security concerns that proceeding in a U.S. forum would trigger. This Article therefore revisits the positions taken by the Department of Justice that terrorist trials take place within the U.S. federal court system, as well as the November 2001 Presidential Order permitting the creation of U.S. military tribunals for terrorists.
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