International law is useful as a measure of international concern and opinion on an issue such as terrorism. Lacking methods and mechanisms for enforcement, it cannot be said to be an effective deterrent to terrorism, either on the national or the international level. Because its formulation is so ad hoc, relying on loose associations of states rather than on any legislative body to draft conventions, it is somewhat less than coherent and often indecisive. Political considerations often weaken the resolve of nations to deal with politically sensitive subjects.
In the absence of a judiciary empowered to adjudicate without the consent of all parties, and lacking an executive or police force to enforce the laws, international law on terrorism has evolved as a patchwork of treaties. Among the most successful of the international treaties are those relating to specific types of terrorism and the most recent conventions on terrorist bombings and the financing of terrorism. Even these treaties, however, have been seriously hampered by political concerns relating to issues of jurisdiction, prosecution, extradition, and political asylum. Nor will the new international criminal court, as it comes into fruition, be of significant help in filling this absence of international legal authority.
As a means for combating terrorism, then, international law appears a somewhat dubious tool. When agreements are entered into that have enforcement capabilities, then such laws can be used to curb terrorism. But to date, only a few such agreements are in force within the international community.
The international community has declared a “war on terrorism” and has created numerous documents in its effort to define this crime. Yet there is much confusion remaining about what constitutes terrorism, how it should be punished, and by whom. There are, however, two other types of international legal agreements on terrorism that have been attempted, and one serious international legal question generated by individuals captured or arrested during the war on terrorism declared by the international community in the wake of the events of September 11. Consider each of the following descriptions of international legal efforts to deal with terrorism. Decide which, if any, have a reasonable chance of success given what you now know about the problems of enforcement and adjudication.
The creation of an ICC could offer a solution to the politicization of the crime of terrorism. Several national leaders, including the president of the Sudan, have been indicted by the ICC in recent years of “crimes against humanity,” but the ability of the court to bring these individuals to justice remains unclear, since it lacks the ability to serve warrants on and arrest most of these persons. Does this use of international law to indict, without being able to bring to justice, world leaders accused of types of terrorism help or hurt the war on terrorism? Does it make international law appear strong and useful, focusing on crimes in the international community, or does it diminish the stature of the law, making it appear weak when the individuals cannot be brought to court for trial. Would, in fact, placing such a person in the hands of the ICC create as many problems as it would solve, even with respect to the crime of terrorism?
As noted earlier, several hundred people were captured by U.S.-led force in Afghanistan after the attacks of September 11, 2001, in a declared “war on terrorism.” Until 2009, hundreds remained detained at the U.S. Naval Station at Guantánamo Bay, Cuba. The United States has called these individuals “enemy combatants” rather than prisoners of war and argues that they have no right to legal counsel and may be held indefinitely without being charged with an offense. Is this a legitimate use of legal authority to combat terrorism or a violation of the rights of “protected persons” during times of war? What should be the legal fate of these detainees? What are the problems with just setting them free or returning them to their home countries?
The United States has been accused of using torture against the prisoners at Camp X-Ray at Guantánamo Bay in efforts to gain information considered vital in the war on terror. Reports about these alleged abuses raise serious questions, including whether torture was used, if the abuse was in any sense justified by the information gained, and if the use of illegal means of interrogation can be justified by the “need to know,” which is prevalent in wartime. Can torture ever be justified for a cause, or is it, like as acts of terrorism, never a legitimate activity?