Crimes of War

September 21, 2001

Introduction

The September 11 attacks that destroyed the World Trade Center and damaged the Pentagon --using civilian airplanes as weapons of mass destruction – have been universally condemned as barbarous acts. They are also fundamental breaches of international humanitarian law, which governs the rules of armed conflict. Yet the rapid resort by political leaders to use of the terminology of war has caused both the public and some other governments to question whether the attacks are to be viewed first and foremost as acts of war under international law, as terrorist acts, or criminal acts.

The distinctions matter. International humanitarian law, which in its present form reflects the lessons of the Holocaust and World War II and is codified in the form of the Geneva Conventions and other universally accepted treaties, sets out the binding criteria that determine what is legal, illegal, and criminal in armed conflict. It also defines crimes against humanity and genocide, abominations that can occur in war or in peacetime.

The question remains, however, as to how to define the assault on the World Trade Center and the Pentagon according to the terms of the accepted norms of international humanitarian law. The assaults appear not to have been carried out by a state, but rather by a shadowy organization that has not even claimed responsibility for them. This raises the fundamental question of whether international humanitarian law is adequate to address the nature and scope of the attacks.

To encourage a substantive debate both on the assaults themselves and on the legal norms governing any possible retaliation, the Crimes of War Project has so far interviewed a number of leading scholars of international humanitarian law from the US and Britain, with plans to interview others around the world. Those interviewed so far include Robert Kogod Goldman , Professor, Washington College of Law, American University; Eyal Benvenisti, Professor of International Law, The Hebrew University, Jerusalem, and Visiting Professor, Columbia Law School; APV Rogers, OBE, Author, Law on the Battlefield, joint winner of the 1997 Paul Reuter Prize Fellow, Lauterpacht Research Centre for International Law, University of Cambridge, England; Michael Matheson, Senior Fellow, U.S. Institute of Peace; H. Wayne Elliott, S.J.D., Lt. Col. (Ret.) U.S. Army, Former Chief, International Law Division, Judge Advocate’s General School, U.S. Army; and Steven R. Ratner, Albert Sidney Burleson Professor in Law, University of Texas Law School.

Their responses, which follow, point to several preliminary conclusions. H. Wayne Elliott sums up the crimes in the attacks on New York and Washington: “Of course, U.S. domestic law prohibits what happened. But, even under international law and the law of war, these acts would be prohibited. The initial seizure of the plane would be a violation of the hijacking laws and treaties; 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.”

How should the U.S. respond? A.P.V. Rogers remarks: “There has been talk of “reprisal,” “retaliation” and “revenge”. Only the first of these terms is defined in the law of armed conflict. It relates to coercive measures resorted to in certain circumstances to enforce compliance with the law of armed conflict by the enemy…. Retaliation and revenge are not legal terms and have no place in the law of armed conflict. For example, in the war crimes trials that followed the Second World War, military commanders who ordered the execution of a set number of civilians for every soldier killed by partisans were found guilty of war crimes.”

Please click on the names of any of the experts on the left of this screen to read their responses in full, or on any of the questions on the right to read summaries of their analyses.