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Guest Post: Bringing Terrorists to Trial: An Alternative to Industrial Counter-Terrorism

(Today's guest post is by Francis Conliffe. If you would like to guest write for us, please check out our guest post guidelines.)

The current US approach to counter-terrorism is based on targeted kill-capture missions. This approach has been described as industrial counter-terrorism in Iraq, and is today associated with drone strikes and shadowy prisons, of which Guantanamo Bay is the best known. While this approach may be productive in terms of body counts, it is counter-productive in terms of image and international legitimacy. But there is an alternative approach.

During the 1990s, Yugoslavia imploded in a horrific civil war fraught with war crimes and atrocities. In 1993 the United Nations called for establishing an international tribunal to investigate war crimes and crimes against humanity, resulting in the creation of the International Criminal Tribunal Yugoslavia.

This court had little actual prosecution to do at first as the General Framework Agreement for Peace, also known as the Dayton Accord was not signed until 1995. The Accord called for a “safe and secure environment,” and compelled the three signatories (Serbs, Croats and Bosniaks) to “cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law.” Those responsible for violations became known as “Persons Indicted For War Crimes” or PIFWCs. Little traction was gained at first, as the three parties had little incentive to turn in and prosecute their own people, and the United Nations Protection Force was not pursuing war criminals. The NATO Stabilisation Force (SFOR) which came into effect in 1996 had the mandate to “provide a 'safe and secure environment',” and noted that “the presence of PIFWCs is a major obstruction to the peace process.” But there was a problem: American forces were initially reluctant to pursue war criminals, retaining bad memories of man hunts in Somalia, and saw the exercise as counter-productive to the mission.

While a number of PIFWCs actually turned themselves in, it was not until 1997 that SFOR started actively pursuing PIFWCs. This activity was the domain of coalition special forces, who would conduct snatch missions. Prisoners were then handed over to Military Police, received medical examinations, and upon arrival at The Hague, received legal counsel. It is worth noting that this was not some “soft” police-style mission. A number of PIFWCs were killed while resisting capture.

The Chief Prosecutor of the War Crimes Tribunal, Louise Arbour, pushed hard for SFOR to pursue war criminals. She noted that the legal process is “a process whereby if we are successful, we will assist a people in letting go of what it believes to be its war heroes, by exposing them as criminals.” The trials have proved to be an effective way of bringing reconciliation to the war-torn region and bringing justice to those who have committed egregious crimes. As noted above, not all indicted survived to see trial. Further, not all who were tried were convicted. Numerous parties have criticised The Tribunal for expense and bias, but no criminal system is without critics. There would be harsher criticism if all indicted were simply executed.

The US used to approach terrorism as a criminal problem. This approach was criticised as leading to conflict between Defence and Justice, with the DoD excusing itself from the problem and Justice lacking the resources to really pursue terrorists.

That has clearly changed in recent years, and perhaps the DoD has now taken too much of a lead in the process. DoD has demonstrated the capability to pursue individuals. It may be time to marry that capability with a judicial capability, modeled on the ICTY, in order to bring terrorists to legal justice. It is not too late to adjust course on the approach to counter-terrorism, and a more law-based approach would earn back much legitimacy that has been lost in a decade of secret prisons, torture and targeting boards. It would also result in a more transparent way to view those involved in terrorism, bringing clarity to the respective importance of each accused individual. Just as some of the PIFWCs facing trial at The Hague were low level operatives, while others were the “masterminds” and instigators, so too some accused terrorists are simple foot soldiers while others are key leaders. Currently, they are all treated the same way, facing at best a life in limbo in questionable prison, or at worst facing death by RPV strike.

The USA could change the narrative of the war by bringing these people before trial and, as Louise Arbour stated, exposing their supposed heroes as criminals.

Francis Conliffe is an Armour officer in the Canadian Armed Forces. He has served in Bosnia and Afghanistan.

four comments

An interesting guest post, in light of the torture report that we released yesterday, especially the line on “shadowy prisons”.

Couldn’t be more apt.

I think this is what everyone still hopes for. The other way makes for good movies but bringing terrorists to trial de-legitimizes them and destroys them.

The idea has merit but the example of former Yugoslavia is not a good analog and may be so far off as to be of no use at all. NATO and Western forces occupied the place and had easy physical access to all of it. There were no large organized military forces protecting the indicted. That is not at all the case in Pakistan or along the Euphrates or in Syria or Somalia or you pick a place. It isn’t practicable in the world as it is now.

Second, we would have to find some way to keep the American legal system mostly out of it. IF we didn’t trials would go on for decades before resolution if there ever was a resolution.

Carl – your second point is pretty much exactly the point. Bringing terrorists to trial in the US legal system has all sorts of problems (though it is sort of happening ever since the FBI started working with JSOC: http://tinyurl.com/o2nhm4x). First, as you said, it’s a painfully long process. Second, it has questionably legitimacy in the eyes of the world. If a crime is committed either by an American, or by anyone on American soil, then clearly American law is at play. But crimes against Americans in third locations? Either third location law should apply, or international laws and norms. Hence the argument for an international tribunal.

As to the first point, the US don’t seem to have many problems snatching people throughout the Islamic crescent, though I’d argue that going into Pakistan should be the exception rather than the rule. There are certain differences between the situations, but probably not as great as you may argue. Many NATO forces in the former Yugoslavia leaked information like sieves, which isn’t so different from host nation forces today. There are ways to separate potential criminals from bases of support (they’re not perfect, but are similar to fighting organised crime). There just has to be will to use them.