The destruction of the Taliban and Al Qaeda grip on power in Afghanistan has unleashed a torrid debate as to the proper means for bringing members of these organizations to justice for their terrorist crimes.
The White House decision to use military tribunals to try these individuals has led to a hail of criticism. While at first glance there are important constitutional and civil libertarian concerns with military tribunals, a closer analysis shows that they are the best short-term option for dealing with hundreds of terrorist cases. After these are set up, the United Nations could complement them by expanding the jurisdiction of the war crimes tribunal at The Hague.
In the past, the United States has pursued a failed policy of domestic prosecution of terrorists. In the cases of the 1996 Khobar Towers attack in Saudi Arabia, the 1998 bombings of U.S. embassies in Africa, the Cole attack in 2000 and the 1993 bombing of World Trade Center towers, the U.S. has been able to prosecute only a handful of low-level culprits and ideological supporters. With potentially thousands of Al Qaeda terrorists about to fall into the hands of the U.S. military or Northern Alliance, this process will neither serve as adequate justice nor as an effective deterrent to further acts of terror.
More strikingly, domestic prosecution prevents the early apprehension of terrorists, as was the case when the Clinton administration declined Sudan's offer in 1996 to turn over Osama bin Laden because there was not sufficient probable cause to try him in U.S. courts. Domestic prosecutions also are hindered by difficulties in obtaining custody through extradition and the inability to use sensitive intelligence information in court, among other things.
Similarly, there exists no effective international forums for the prosecution of terrorists. While the International Criminal Court has been mentioned as a possible venue, the treaty establishing it is not yet in force, its jurisdiction does not include terrorist crimes and it does not have retroactive jurisdiction. It would take many years to select a prosecutor and judges, let alone prepare an indictment against key terrorist figures. In the case of the Yugoslavia tribunal, it took seven years to indict Slobodan Milosevic.
Likewise, an international terrorism court would take years to establish and potentially have the same deficiencies. A military tribunal, therefore, provides the most practical, flexible and effective means for bringing suspected terrorists and war criminals to justice. While not an ideal solution, a hearing before a military tribunal applying international standards of due process is preferable to the likely alternative of summary execution by the Northern Alliance or southern Pushtun tribes or summary trial by any number of Islamic courts in the region.
Fears that a military tribunal would further inflame Arab animosity against the U.S. are not well founded. While Islamic fundamentalists would no doubt see any trial as a rigged process, moderate Arabs will weigh the fairness of a military tribunal against their own perceptions of justice. To ensure the proper functioning of military tribunals and to guarantee an accurate perception of their operation, the tribunals should conduct as much of the trials in public as possible, should strictly adhere to international standards of due process and international definitions of criminal behavior and should incorporate, where relevant, civilian or military judges from countries where the defendants are apprehended.
To begin to solve the long-term problem of trying high-level suspects, however, the U.S. should support an effort to expand the jurisdiction of the Yugoslav war crimes tribunal to cover acts associated with the Sept. 11 attacks and the crisis in Afghanistan.
That tribunal operates with a competent prosecutor and has a full complement of trial and appellate judges, including Islamic judges, so it is well suited to try the top level suspects, leaving the military tribunals to try lower-level actors. Most important, over time, the Yugoslav tribunal could evolve into a universal terrorism court. Such a court would fill a crucial gap in the new war on terrorism.