NORTH CAROLINA LAW REVIEW Volume 81 | Number 1 Article 3 12-1-2002 Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Aysmmetries of the International Legal Order Mark A. Drumbl Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Mark A. Drumbl, Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Aysmmetries of the International Legal Order, 81 N.C. L. Rev. 1 (2002). Available at: http://scholarship.law.unc.edu/nclr/vol81/iss1/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. VICTIMHOOD IN OUR NEIGHBORHOOD: TERRORIST CRIME, TALIBAN GUILT, AND THE ASYMMETRIES OF THE INTERNATIONAL LEGAL ORDER MARK A. DRUMBL* This Article posits that the September 11 attacks constitute non- isolated warlike attacks undertaken against a sovereign state by individuals from other states operating through a non-state actor with some command and political structure. This means that the attacks contain elements common to both armed attacks and criminal attacks. The international community largely has characterized the attacks as armed attacks. This characterization evokes a legal basis for the use of force initiated by the United States and United Kingdom against Afghanistan on October 7, 2001. Notwithstanding the successes of the military campaign and the need for containment of terrorist activity, this Article suggests that there are important deontological, communitarian, and consequentialist reasons why the attacks-and terrorism in general-should be constructed as criminal attacks. In this vein, this Article explores the effects on the internationallegal order of state practice supportive of the use of lethal force against Afghanistan. These effects include: (1) an expansion of state responsibility for individuals (even non-nationals) who may not be effectively controlled by the state; (2) a diminution of the role of * Assistant Professor, Washington & Lee University, School of Law. B.A., 1989, McGill University; M.A., 1991, Institut d'6tudes politiques de Paris/McGill University; LL.B., 1994, University of Toronto; LL.M., 1998, J.S.D., 2002, Columbia University. Special thanks to Rick Kirgis, Doug Rendleman, Louise Halper, Lash LaRue, Lan Cao, Brad Karkkainen, Ken Gallant, Lori Damrosch, Quince Hopkins, Ahmed Younis, Michelle Lyon, Di Otto, Roger Groot, and Natalie Rea for helpful comments, suggestions, and ideas. This Article was enriched by challenging discussion during faculty colloquia held at the University of Southern California, School of Law; Washington & Lee University, School of Law; and the University of Arkansas-Little Rock, Bowen School of Law. This Article also has benefited from being presented at various stages of development in a number of places, including conferences held at the University of Pennsylvania, School of Law and the University of Denver, School of Law; the International Studies Association Annual Meeting (New Orleans); the Annual Meeting of the South Eastern Association of American Law Schools; and the Academic Council of the United Nations Annual Meeting (University of Lisbon, Portugal). I would like to acknowledge the generous support of the Frances Lewis Law Center, Washington & Lee University, of its Director Blake Morant, afid of Dean David Partlett. NORTH CAROLINA LAW REVIEW [Vol. 81 the Security Council and United Nations on matters of global peace and security; and (3) an increased elasticity in time and space of individual and collective self-defense, which now may inform U.S. national security policy and the prospect of intervention in Iraq. These changes have important consequences for global rule of law. Also of closely related importance to rule of law are the prosecutorial responses to individuals detained in relation to the attacks and transnationalterrorism, generally. This Article assesses the advantages and disadvantages of a variety of domestic, international, and hybrid prosecutorial strategies for such individuals. The argument is made that the most fitting situs for criminal prosecutions is at the internationallevel, in the form of a cosmopolitan tribunal operatingunder the aegis of the United Nations but negotiated among nation-states connected to the accused, victims, and planning of the attacks. Adopting an institutionalist perspective, this Article posits that, so as more effectively to deter future terrorist violence, trials should include culturally pluralist approaches. This weighs against trials being held in federal court in the United States or in U.S. military commissions. In fact, electing to prosecute through U.S. military commissions would evidence exceptionalism to the often weighty machinery of international human rights and humanitarian law that has been invoked in other cases of mass atrocity, for example in Rwanda, Bosnia, Kosovo, East Timor, and Cambodia. This exceptionalism may reveal asymmetries that arise when "we" in the United States are victims of mass atrocity, as opposed to "others" in faraway lands. Due process rhetorically is presented as an inconvenience to the pursuit of justice post-September 11, whereas in other post-atrocity situations due process rhetorically is presented as an essential requirement for justice. This, together with rapid changes in the law regarding the use of force, also may suggest the emergence of derogations from the "legalism" that international human rights and criminal law, as well as public international law generally, so vigorously have sought to inject into internationalrelations. These derogationspose ethical as well as utilitarianchallenges. INTROD UCTION ...................................................................................... 3 1. ARMED ATTACKS, CRIMINAL ATTACKS, AND INTERNATIONAL LAW: THE USE OF FORCE AGAINST A FGHANISTAN ........................................................................... 16 A. Did the Security Council Authorize the Use of Force?........ 17 B . Self-D efense ....................................................................... 26 1. Defining an Armed Attack ......................................... 27 2002] VICTIMHOOD IN OUR NEIGHBORHOOD 2. Assuming an Armed Attack: Other Concerns ........ 33 a. Did the Security Council Address the Issue? .....33 b. Afghan State Responsibility ....................................34 c. Self-Defense, Internal Regime Change, and Broad H orizons ......................................................40 d. Were Peaceful Means Exhausted? .............................43 e. Proportionalityand Necessity ................................45 C. ParadigmShifts, Fits, and Misfits ....................................48 II. AVENUES FOR PROSECUTION .................................................51 A. Prosecutionin U.S. Courts Under Domestic U.S. Law .......54 B. Prosecutionin Foreign National Courts ..........................54 C. Prosecutionin Signatory States Under International Conventions .......................................................................55 D. Prosecutionin U.S. Military Commissions ......................56 E. Prosecutionas a Crime Against Humanity ......................60 F. Prosecutingthe Financiersof the Al-Qaeda Network .........62 G. Civil Suits Against Terrorist Networks or Governments That Condone Them ...........................................................63 III. CONSTRUCTING THE ATTACKS AS RADICAL EVIL ............... 65 IV. GAVELING JUSTICE AND BUILDING SOCIAL NORMS ........... 78 V. COLLECTIVE, FOREIGN, AND INSTITUTIONAL A CCOUNTABILITY .....................................................................87 A. Collective Afghan Complicity ............................................87 B. Foreignand InternationalInvolvement .............................88 VI. THE ASYMMETRICAL TREATMENT OF WESTERN VICTIM HOOD ? ........................................................................ .. 92 C O N CLU SIO N ...........................................................................................105 INTRODUCTION Events of seemingly incomprehensible evil can, and should, be subject to scholarly analysis.1 The September 11, 2001 "attacks"2 are no exception. The tragedy of that day is clear. Much more opaque, 1. See generally ALEX ALVAREZ, GOVERNMENTS, CITIZENS, AND GENOCIDE (2001) (presenting a comparative and interdisciplinary discussion of the crime of genocide); YEHUDA BAUER, RETHINKING THE HOLOCAUST (2000) (examining categories and issues that arise out of contemplation of the Holocaust); CARLOS SANTIAGO NINO, RADICAL EVIL ON TRIAL (1996) (discussing the history of human rights violations and the difficulties inherent in human rights violations trials). *2. The word "attacks" frequently has been used to describe the violence of September 11, 2001. This Article also uses this word for this purpose. However, this should not obscure the important question of law whether or not the September 11 terrorist "attacks" constitute "armed attacks" (or "acts of war") or, on the other hand, "criminal attacks." 4 NORTH CAROLINA LAW REVIEW [Vol. 81 however, are questions involving why the attacks happened, how they are to be legally defined, what to do about them, and how to deter future attackers. This Article posits that the attacks can best be described as non-isolated warlike attacks undertaken