Summary

  • During the campaign against terrorism, the United States and the international coalition are using both armed force and criminal investigative tools to exercise their right of self-defense and, if circumstances permit, to bring the perpetrators to justice. The latter goal has been instrumental in building the international coalition against terrorism.
  • Grounds for criminal prosecution of the al Qaeda terrorist suspects include outstanding U.S. indictments, UN Security Council resolutions, the violations of U.S. criminal laws and crimes against humanity that occurred on September 11, 2001, and the political commitment to criminal justice demonstrated by the United States Government, the United Nations, and coalition governments.
  • The terrorist suspects should not be granted prisoner of war status if apprehended, although officially organized forces of the Taliban in Afghanistan probably would qualify for prisoner of war status.
  • The options for prosecution of the terrorist suspects include nine judicial forums that need not be mutually exclusive. There may well be occasion to prosecute different terrorist suspects in different courts in different jurisdictions simultaneously. The options include U.S. federal courts, military courts, or a military commission; foreign national courts; a UN Security Council ad hoc international criminal tribunal; a UN General Assembly ad hoc international criminal tribunal; a coalition treaty-based criminal tribunal; a special Islamic court; and UN-administered courts in Afghanistan.
  • At least for the near future, key options for prosecution of terrorist suspects will be U.S. federal courts--where so many of them already have been indicted for pre-September 11 crimes--and foreign national courts that will certainly play a key role in the investigation and prosecution of terrorist suspects. For the long term, much will depend on how many terrorist suspects are apprehended and how feasible and realistic any U.S., military, international, or Islamic law option for prosecution becomes. Nonetheless, discussion should commence on the feasibility of other options in terms of legal, political, and practical concerns.
  • Ultimately the judicial system in Afghanistan will require major surgery, with international assistance, to instill the rule of law and bring to justice in a credible manner those al Qaeda terrorists or operatives who may not be prosecuted elsewhere.

 

About the Report

One of the critical issues in the campaign against terrorism is how international terrorists will be prosecuted if they surrender or are apprehended. This report examines many of the options for prosecution that will confront policymakers.

The report was prepared by David Scheffer, a senior fellow at the United States Institute of Peace and formerly U.S. ambassador at large for war crimes issues (1997-2001). Scheffer was deeply engaged from 1993 to 2001 in the negotiation and establishment of international criminal tribunals for the former Yugoslavia, Rwanda, and Sierra Leone, as well as the Extraordinary Chambers in Cambodia. He also led the U.S. delegation to UN talks on the permanent International Criminal Court.

The views expressed in this report do not necessarily reflect those of the United States Institute of Peace, which does not advocate specific policies.

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