Choices of Law, Choices of War

Abstract

Is terrorism crime, or is it war? What conceptual framework will or should United States use to conceptualize its fight against terror? The distinction between crime and war, embodied in international and domestic legal regimes, institutional-administrative divisions, and in such legislation as Posse Comitatus Act, (1) requires serious rethinking in light of terrorist attacks of September 11, 2001. (2) Whether we choose framework of war, framework of criminal pursuit and prosecution, or, as is more likely, some complicated combination of two will have major ramifications in spheres of law, politics, and policy. This Essay proposes to examine a few of most important and interesting problems associated with choice of framework, and to address in a preliminary way central question of how crime/war distinction should be treated, developed, preserved, or revised. Part I investigates distinction between crime and war and proposes four criteria that underlie that intuitive distinction. Applying these criteria shows that some cases, such as international terrorism, can plausibly be characterized as both crime and war and that these cases therefore undermine binary character of crime/war distinction. Part II considers practical consequences of crime/war distinction for pursuit and capture of international terrorists, paying particular attention to a striking asymmetry: on one hand, criminals generally may not be killed by their pursuers if they pose no immediate threat, but may be punished after capture; adversaries in war, on other hand, may generally be killed in pursuit without giving quarter, but generally cannot be punished after they are captured. (War criminals constitute a complicated hybrid category.) There is therefore reason to think that U.S. policy can and will treat international terrorists as war adversaries while they are being pursued and as criminals of some sort after they are captured. Part III briefly considers institutional and administrative implications of breakdown of crime/war distinction in case of combating international terror and discusses sorts of institutional changes that may be appropriate. The general suggestion of Essay is that it may not be necessary to choose either crime or war as an exclusive general framework for addressing problems of international terror. Rather, framework itself may require reexamination--a reexamination perhaps long overdue, but in any case prompted in United States by events of September 11. I. WAR AND CRIME: A BRIEF EXCURSUS What sort of distinction is familiar one between war and crime? Begin with traditional distinction between crimes against domestic law and acts of war against a state. Both crime and war involve acts that in some sense offend against state--after all, crime was long said to violate the king's peace. (3) But a crime violates laws of state, whereas a war involves a violation of, or a challenge to, a state's sovereignty more generally. What are constitutive elements of this distinction? The first element of crime/war distinction, which interacts in complicated ways with other elements I shall discuss, is identity of actor. International law traditionally took view that only a sovereign state could perform an act of war. Reciprocally, domestic law of jurisdiction has traditionally incorporated view that sovereign states are immune from criminal (and civil) prosecution, as indeed are their leaders. (4) Call this identity criterion: actor's identity plays a role in determining difference between war and crime. The identity criterion may not have an independent logical basis, (5) but it certainly plays a key role in our intuitive understanding of differences between crime and war. Our intuition tells us that states make wars and individuals commit crimes. …