International Criminal Law Aspects of the War Against Terrorism

Abstract

The debates about forums and processes for prosecuting those accused of terrorist acts have resonated across the globe since September 11, 2001. Discussion is likely to intensify in this regard in preparation for the International Criminal Court Review Conference in 2009. The proper disposition of criminal cases against terrorists is linked to the deeper disputes regarding the applicability of the established frameworks for regulating conflicts and the status of those who have no lawful right to wage war, yet choose to conduct hostilities against sovereign states. This article assesses the established frameworks for addressing transnational terrorist acts in which the international community has negotiated a web of occasionally overlapping multilateral conventions addressing specific categories of criminal conduct. This essay superimposes the existing model against those made in favor of a newly created supranational judicial forum. Because the problem of transnational terrorism does not raise any of the problems that have been previously addressed by the establishment of an internationalized process, such a supranational forum is unnecessary and could actually undermine the pursuit of justice. This essay concludes that the voluntary efforts of sovereign states to implement and enforce international norms would not be materially enhanced by the creation of a new superstructure of supranational justice designed to address terrorist acts.