Trying Terrorists as War Criminals Page: 2 of 6
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CRS-2
and if captured, are not entitled to prisoner-of-war status under the Geneva Conventions.
As suspected war criminals, they may be tried by any nation in its national courts or by a
military commission convened by one nation or many.
It appears that there are few legal impediments to adopting such an approach as to
enemy belligerents who allegedly violate the law of war, especially those captured
overseas.3 The right of the Commander in Chief to try war criminals in occupied territory
is well settled. Determining who qualifies as an "enemy belligerent" for acts committed
on U.S. territory, however, would likely present greater constitutional difficulties.4 Other
practical considerations that may arise include the following questions: Must war crimes
be investigated by military police, possibly implicating the Posse Comitatus Act? If federal
or state police are used, must they follow the same standards that they apply to criminal
cases? How will it affect the United States' ability to extradite terrorists captured abroad?
Such an approach could also have an impact on civil matters. Will there be any effect
on the possible civil liability of terrorists to compensate victims?' Would it matter if a
particular victim was a government employee or someone located at a "military target" at
the time of an attack? Will there be an effect on the liability of insurers?6 A decision to
adopt a law of war approach to the terrorist acts currently at issue, or to all future terrorist
acts, could also have significant foreign policy repercussions.
What is the Law of War? As a subset of the law of nations, the law of war is a
composite of many sources and is subject to varying interpretations constantly adjusting
to address new technology and the changing nature of war. It may also be referred to as
jus in bello, or law in war, which refers to the conduct of combatants in armed conflict,
as distinguished fromjus ad bellum- law before war - which outlines acceptable reasons
for nations to engage in armed conflict.7 The main thrust of its principles requires that a
military objective be pursued in such a way as to avoid needless and disproportionate
suffering and damages. Sources of the law of war include international agreements,
customary principles and rules of international law, judicial decisions by both national and
2 (...continued)
A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U.L. REV. 349 (1996).3 Military jurisdiction in occupied areas is well established, even for ordinary crimes, as a power
necessary for military government. See In Re Yamashita, 327 U.S. 1 (1946). The commander also
has the option of detaining offenders until they can be delivered to civil authorities for trial. See
Gallagher v. United States, 423 F.2d 1371 (Ct. Cl. 1970).
4 See Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (granting writ of habeas corpus to civilian
convicted by military commission for criminal offense where federal courts were available).
' Civil actions brought under 18 U.S.C. 2333 (terrorism remedies) may not be maintained for acts
of war. 18 U.S.C. 2335. Defendants convicted under criminal proceedings are estopped from
denying responsibility in any subsequent civil suit. 18 U.S.C. 2333(b). Under current law, it is
unclear whether a conviction by military commission could be invoked in this way.
6 See Insurance Exclusion Clauses and Coverage of the Events of September 11, CRS Report
RL31166 (Oct. 20, 2001).7 See DOCUMENTS ON THE LAWS OF WAR 2 (Adam Roberts and Richard Guellf, eds. 2000).
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Elsea, Jennifer K. Trying Terrorists as War Criminals, report, November 28, 2001; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metacrs6980/m1/2/?q=RS21056: accessed April 28, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.