Crimes of War

May 17, 2002

Anne-Marie Slaughter,
J. Sinclair Armstrong Professor of International, Foreign and Comparative Law at Harvard Law School, and currently President of the American Society of International Law
Interview by Anthony Dworkin

Q: The President’s Military Order giving the original authorization for the military tribunals raised a great deal of concern. How far do the detailed rules go in addressing those concerns?

These new rules represent a very big improvement over the administration’s initial outline. The administration has clearly paid attention to the concern expressed by many ordinary military lawyers, as well as lawyers from the Justice Department and the State Department, that these proceedings should be made much closer to domestic courts martial – not necessarily ordinary civil trials but at least courts martial. So, many of the criticisms are answered.

There are at least two sticking points, however: the rules of evidence and the review process.

On the evidence question, it’s somewhat complex because the United States standards are more rigorous that many other systems. Much of the evidence that we would exclude in a civil trial would automatically be admitted possibly in a British court, certainly in a German or French court. So that aspect of the commission rules is less troublesome. I think it’s quite likely that whatever actual process is put in place would be consistent with the standards applying in many national courts and international tribunals.

The availability of review is much more troubling, because in the end this is what will determine whether this process becomes a parallel system of military justice, or is instead a hybrid form of justice that has been tailored to these specific defendants, but is still consistent with American constitutional values. Courts martial of course do have appeal to the civilian courts, and here it does not appear that there is going to be appeal to the ordinary courts. This point isn’t completely clear, because the President’s counsel did say in the New York Times that the right of habeas corpus would exist, and on the face of the rules they don’t exclude habeas corpus. Nevertheless they do explicitly state that the right of appeal is to a military tribunal. That’s quite troubling.

In the end it means that those who are going to pronounce judgement are not independent in the way that term is normally understood, that is they are the officials of the prosecution, they are US military personnel. And although they are likely to act in absolute good faith and consistent with the rules as they see them, there won’t be an official making that final decision who is separate from either the prosecution or the court, and that is in the end necessary certainly for our own courts martial. We don’t let our soldiers get tried by military courts without the possibility of civilian review.

Q: Isn’t it true that at the International Military Tribunal in Nuremberg after World War II, there was no right of appeal outside the tribunal?

That’s right – but Nuremberg is quite different and who knows how we would run it today. But the fundamental difference from Nuremberg is that we did not then have any doubt that any of the defendants were "the enemy" – they were the leaders of an enemy power in a declared war. The whole point of these defendants is that the tribunals are going to have to establish that they are the enemy, which is the basis for a military justice system rather than a civilian one. And that determination itself should be subject to some civilian review.

Q: Should there be Congressional oversight of the rules for the military commissions?

I think that Congress should have oversight for all sorts of reasons, both political and legal. I think it’s required. The ex parte Quirin tribunal during World War II was set up by the executive but that was at a time when we had a declared war, so Congress had explicitly given the President the maximum Commander in Chief powers. Also there was a specific statute that authorized that tribunal that does not exist now. So as a matter of Constitutional law I think it’s required. As a matter simply of avoiding mistake, ensuring our credibility and making sure there are at least multiple inputs into the process I think it’s essential as well.

Q: What kind of legal framework is the right one for looking at the detainees and the charges they might face?

I think it’s fair to say that there are three rough categories of people being currently held. Some are Taliban soldiers who from my point of view do qualify as prisoners of war under the Geneva conventions, and should be treated as such. If there are specific individuals fighting in the Taliban forces who we have evidence committed war crimes of any kind, we could of course try them in the ordinary way through a military process, although it would have to be the same process we give our own military court-martials. That would be the first category. The second category would be al-Qaeda members against whom we have real evidence that they have committed crimes under international law and under the national laws of their own countries and many other countries. And there I think the solution should be to try them and to jail them or impose whatever other penalties are available under national legal systems.

Then the third category is those who are part of al Qaeda, or who were apprehended with other al Qaeda members, or who had gone through training camps. They are part of, or certainly assisting, an avowed terrorist organization but we really don’t have any specific evidence against them other than their membership. For those individuals, I do think we are in uncharted territory. They aren’t criminals, at least until they’re proven guilty of specific crimes; they’re not the enemy, in the sense that they’re not members of the armed forces of an opposing state, but they’re a new kind of enemy. In that situation the United States would be best advised to try to work with its allies and other countries to develop rules for how we are to deal with these individuals. You can extrapolate from existing rules, but you’re still going to have to develop new categories and new rules and we shouldn’t do that on our own.

Q: What about idea of charging these people with a conspiracy to commit terrorist acts?

I would support that as a charge, and certainly we have those kinds of charges under national and international law. But still it may be difficult as an evidentiary matter to prove enough to convict people even for conspiracy. I mean having been in an al-Qaeda training camp, maybe, but you want to be very careful about lowering your standards of proof. Because if you imagine the shoe being on the other foot, it starts to sound like any US soldier who’s part of an army bent on destroying Islam (as it might be alleged) could be indicted on those kinds of grounds …so these matters are to be handled with enormous care.

Q: For how long could these detainees be legally held?

It is difficult to imagine right now that the US authorities would simply release any individuals where there is evidence that they were at least affiliated to al-Qaeda. On the other hand it doesn’t seem politically possible, nor should it be legally possible, to detain them indefinitely until the war on terrorism is over. However it might be possible to create a set of rules that would permit lengthy detentions, at least until al-Qaeda itself as a particular threat has been essentially defeated. You want to try to develop specific criteria for what the enemy looks like or what the war is. Beyond that I suspect relatively few people are going to be tried in military tribunals and I suspect that as the political pressure mounts more and more will actually be turned over to domestic courts for trial.

Q: Are you comfortable with describing the campaign against al-Qaeda as a war – so that it is permissible to keep holding people while it is ongoing?

No – I think it should it be regarded primarily as a campaign for global justice. These are global criminals and we need to think about combating them in terms of deploying the resources of a global criminal justice system, which means all the police resources, the investigator resources, the intelligence resources, financial regulation – all the networks of national officials who are in fact being activated – and including national courts, military tribunals in very circumscribed circumstances, and an international option. That should be the primary approach. It will also be necessary – it already has been -- to have more limited periods of actual hot war, of using military force. But that should be secondary, not primary, which is why I would prefer to see most of these individuals going through domestic judicial systems – whether in the United States, or Pakistan, or Afghanistan, or Germany, or France, or Britain.

Q: In strictly legal terms, can you make any kind of case for detaining people beyond the war in Afghanistan?

I don’t think there’s a strong case under existing law because I don’t think existing law covers this case, it is the classic unprovided-for case. But there are two ways to approach that. The administration wants to say that Common Article 2 of the Geneva Conventions addresses inter-state war, the terrorists are not fighting for a state, therefore they are not covered by the convention, and therefore essentially we are developing our own rules. That strikes me as a very problematic way to go. On the other hand, if you simply say well they are covered by the Geneva Conventions and we have to let them go at the end of active hostilities, that’s not going to happen. The question is how to build on the Geneva Conventions to devise a set of rules that is responsive to the political circumstances – all international law gets developed that way – but is nevertheless consistent with fundamental legal principles, which are the principles that we’re fighting for.

Q: What you’re saying is that we need to come up with new framework of law, but that that should be done in a multilateral way?

Existing international law provides a very strong base, in the sense that international humanitarian law and international criminal law have developed enormously in the past decade and they provide a lot of basic principles that can serve as guides. However they don’t address a situation like this, in which states are fighting non-state actors, are fighting individuals and other states simultaneously for a set of actions that are both crimes and acts of war in terms of their scale and scope. And that is precisely the kind of circumstance in which international law gets made, but it should be made collectively and with care.

Q: Would you like to see some sort of specific forum for developing the law in this area?

I think that the US and particularly the European allies missed an important opportunity immediately after the war began by not expanding the jurisdiction of the International Criminal Tribunal for the former Yugoslavia to allow it to at least hear some of these cases – so that the court could start developing rules. They have been on the front lines of all sorts of war crimes and crimes against humanity, they’re trying Milosevic, and that would have been a forum to at least make a start, through a process of trial and error. And then you could take it from there in terms of codification. But it’s unlikely that states are going to come together to create a brand new treaty to combat terrorism, it’s going to be a more gradual process. I would have been happier if there were an international forum explicitly authorized to be thinking about those rules and developing them.