When President Bush declared the September 11 attacks to have been “an act of war,” he was using the term in its accepted legal sense, for domestic political purposes, and as a warning that the U.S. was preparing a military response. There is nothing particularly inconsistent in using the term in the three senses. In effect, the administration is saying, “We consider you to be a state enemy.” If the U.S. does strike, Afghanistan won’t be able to claim that it was the victim of an unannounced attack.

In practical terms, it probably makes no difference how the assault of September 11 is characterized. But as a matter of law, it could be important. The actual act was one of war and terrorism. Terrorism can be a tactic used in war. However, because terrorism almost always involves the deliberate targeting of non-military objectives (here civilians and civilian objects), it would be a “war crime” even in a declared or legally recognized war. The attacks of September 11 were comprised of a series of criminal acts prohibited by U.S. domestic law, international law and the law of war. The initial seizure of the plane would be a violation of the hijacking laws and treaties (including the Montreal Convention against Sabotage); holding the people on those planes amounted to taking hostages; crashing the plane into civilian targets was a war crime. And, if this was simply the first (or merely the latest) act of war it amounted to an unprovoked attack on a sovereign nation.

Strictly speaking, war involves the use of force between “States.” Individuals, as such, cannot initiate “war,” though they can engage in conduct which mimics war. Similarly “states” can not be at “war” with individuals. Individuals who wage “war” against a State, without the sanction of State, are merely criminals.

Some have said the attacks of September 11 represent a challenge to the current legal definition of “war.” I’m not so sure. There is evidence that bin Laden, even if not a head of State, acted with the sanction of a State. Thus, in the absence of any indication from Afghanistan that the government condemns his actions and views what happened as a crime, it can logically be concluded that Afghanistan sponsors or sanctions his activities. If so, then what we have here is a conflict between two States. The initial act may have been committed by an individual. But, two States are now the parties.

In analyzing the culpability of Afghanistan for the activities of bin Laden, it might be useful to take into account the law of war doctrine of “command responsibility.” Under that doctrine, a commander is responsible for the criminal actions of his subordinates where he ordered the act, knew of the act, or should have known of the act. Applying that standard to the leadership of Afghanistan, it is difficult to see it as any less culpable than the persons who actually carried out the attacks. Osama bin Laden has run extensive training exercises in Afghanistan and has made no secret of his intent to kill Americans and to destroy American targets. Surely, the Afghan leadership knew his basic goals. But even if it did not, it should have.

Even in a declared war, the method of attack on the WTC would be a war crime. It amounted to the deliberate targeting of civilians and a civilian object and was preceded by the taking of hostages. In a declared war, the Pentagon would be a military objective and a lawful target. However, that does not excuse the attack as an unprovoked act of war, nor the taking of the passengers as hostages. The entire assault was also a crime against humanity. This mass killing of civilians was intended to sow terror, endanger mental health on a major scale, and disrupt the features of daily life.

The U.S. does not need approval from the UN Security Council, from NATO, or from any other international body before it responds militarily. It is the victim of an attack and more can be expected in the future. The inherent right of self-defense would legitimize any U.S. response.

If the U.S. goes to war, it will be bound by the Geneva Conventions, the Hague Regulations, and all the other laws and customs of war. The broad restriction in the law of war is that only those persons, places, and things which make an effective contribution to the enemy’s war effort are subject to attack. Any U.S. response will be in accordance with the law of war and, I am certain, will be designed to minimize civilian casualties and collateral damage. In terms of who can legitimately be targeted in our war effort, all individuals or groups who make an effective contribution to the enemy’s war effort are subject to attack.

Nations may declare neutrality in a war, but it must be said that neutrality provides no exemption from the Geneva Conventions. Under Article 146 of the 1949 Geneva Civilians Convention, all parties are obligated “to search for persons alleged to have committed or ordered to be committed, such grave breaches [as the targeting of civilians and hostage taking]. . . .” The failure to conduct such a search should defeat any nation’s claim of neutrality in the conflict. And the failure to turn over persons alleged to have committed grave breaches is even stronger evidence that the sheltering State is not neutral. In short, failing to comply with the Geneva Conventions could be seen as support for the enemy. In that case, a claim of neutrality would seem very weak.

In recent days, we have heard cries for “retaliation,” “reprisal,” and “revenge.” “Retaliation” is not a legal term. Nor is “revenge.” However, reprisal is a legal term. Peacetime reprisals have been severely limited. However, war time reprisals can be conducted. First, though, there must be an initial illegal act. (Here that could be the attack of September 11, or the events leading upto it.) The purpose of the reprisal is to punish the criminal and to deter similar criminal activity in the future. In the U.S., reprisals can only be ordered by the highest available authority (practically this means the President). Reprisals must be proportionate to the damage done, and cannot be directed at unprotected individuals (non-combatants in the control of the reprisal taker). There is no particular requirement that the U.S. response be couched in the legal sense of a reprisal. As I said earlier, the U.S. has a legitimate claim to self-defense.

I do not believe there are any international courts which--at this time--could try those involved. In the U.S., we have the usual domestic courts which have jurisdiction over crimes committed in this country or against our nationals. However, we also have military courts which could exercise jurisdiction over any person accused of a violation of the law of war. Hence, we could try these individuals before a General Court-Martial (Article 18, UCMJ) or before a Military Commission (Article 21, UCMJ). Practically, trial by Military Commission is much more efficient because the rules of evidence and procedure are relaxed.

In World War II, German saboteurs were tried before a military commission. They were accused of sabotage, espionage, unlawful belligerency (disguising themselves as civilians) and conspiracy. In denying their challenge to the Commission’s jurisdiction, the Supreme Court said:

Congress, in addition to making rules for the government of the Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within Constitutional limitations, the jurisdiction of military commissions to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. Ex Parte Quirin, 317 U.S. 1, 28 (1942).

Quirin would appear to be still good law, even if somewhat dusty. It would be useful to keep in mind the use of military tribunals to try defendants who claim to be engaging in military activities at the time of their crimes.

Click here to view H. Wayne Elliott's response on "Is this a new kind of war?"


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