International Justice

CJ354 Endicott College

“Terrorism: Crime and Punishment”

I attended an event hosted by the Chicago Council on Global Affairs last Thursday entitled “Terrorism: Crime and Punishment,” featuring Ambassador Thomas Pickering, Ambassador David Scheffer, and Thomas P. Sullivan. The event was a moderated discussion on post 9/11 justice and Guantanamo Bay. Though Ambassador Pickering was the main speaker of the event, Ambassador Scheffer’s comments gave me pause. He mentioned that he believed that the Bush administration after 9/11 should have set up an international tribunal with cooperation from the UN and the international community to deal with suspected terrorists instead of hiding them away in Guantanamo Bay. He believes that if these tribunals had been set up from the beginning the US could have avoided the bad press associated with detaining 50 suspected terrorists in Guantanamo for 12 years without sufficient evidence to hold them. I was surprised at the time that he would suggest international tribunals, but later realized that he was a former US ambassador-at-large for war crimes issues and a special expert on UN assistance to the Khmer Rouge trials. But though he does have an interesting point I am not sure it would have been feasible. His justification is that we would have gotten the international community on our side from the beginning, we might not have gotten involved in the never-ending conflict in the Middle East that we are in currently, and we would not be embroiled in a public relations nightmare over the U.S.’s use of torture in Guantanamo. But based on everything we have read about the use of international tribunals, would the UN or the ICC have agreed to hold a tribunal? The scale of the problem was nowhere near what it was in other countries, and like with the tribunals in Yugoslavia, the courts’ decision to set up a tribunal in the US to prosecute an event that happens regularly in other countries could have been accused of racism.  Also the ICC is supposed to be a court of last resort, utilized when the local judicial system no longer has the infrastructure to prosecute crimes. But I think the biggest problem would be ensuring a neutral court, as the US is such an influential member of the UN. Emotions were running very high after 9/11 and the courts must protect their legitimacy in the eyes of the world. I think if a tribunal were set up to prosecute suspected terrorists after 9/11 accusations of racism and bias would follow the courts. Though in 2001 Ambassador Scheffer advocated for an international tribunal he now believes it is too late and that instead the 50 prisoners in Guantanamo should be held as prisoners of war inside the United States as they were captured and detained under the rules of war. Though I do not believe an international tribunal after 9/11 would have been feasible or desirable, what are your thoughts?


3 responses to ““Terrorism: Crime and Punishment”

  1. gracen0te5 January 28, 2014 at 11:44 am

    Back in 2006, Germany’s Federal Constitutional Court ordered the release of Mounir el Motassadeq, the first person to be convicted in connection to the attacks on 9/11.

    The court agreed with el Motassadeq’s lawyers that the Hamburg judges had been wrong to order him to return to custody with the appeals still pending, because doing so “infringed on his basic right to liberty.” (

    Pending resolution of defense and prosecution appeals, I question whether Motassadeq, a 9/11 conspirator should be thought of as a combatant or criminal that requires crime and punishment. El Motassadeq was convicted of more than 3,000 counts of accessory to murder for helping pay bills for three 9/11 hijackers. He was also convicted as a member of a terrorist organization. (

    An appellate court threw out the convictions and Hamburg state court convicted el Motassadeq only on the membership charge, sentencing el Motassadeq to seven years in prison. The Hamburg court did not find him guilty of the 3,000 accessory counts.

    This presents the important difference between German and U.S. criminal law regarding membership in a terrorist organization before bringing such issue up to suggestion for a tribunal.
    Terrorist membership is considered criminal under Section 129a of the German Penal Code. (

    Under U.S. law, however, membership alone is not enough. The defendant must have: at a minimum harbored/concealed terrorists, provided material support to terrorists, provided resources designated to foreign terrorist organizations. Details are found on:

    So if U.S. couldn’t criminalize mere membership in a terrorist organization like al-Qaida, it may have been a viable option to consider presenting this to the Tribunal to criminalize membership after 9/11. For groups involved in 9/11, proof of membership alone might suffice to prove that a defendant specifically intended to further a group’s illegal aims.

    This involves an incorporation of both domestic and international law, so when we’re not working with precedent in the realm of international justice for possible tribunals, hybrid tribunals could be feasible. If we were dealing with groups that had both legal and illegal aims, do you think hybrid tribunals would best prosecute suspected terrorists, even on basis of membership?

  2. pstichnoth January 30, 2014 at 12:57 pm

    I wonder about what crimes these defendants would be charged with if they were investigated by the UN. As we’ve discussed in class, the ICC charges (war crimes, genocide, and crimes against humanity) take place in the context of a war. Does the US’s “War on Terror” really count here? I actually do agree that terrorist attacks of the scale that occurred on 9/11 do deserve punishment by the international community, so maybe the framework of “these always occur during war” is flawed. (Or maybe I don’t understand it!)

    But terrorism suffers from many similar challenges: community support, aid from governments and heads of state, local popularity. And thinking about the punishment of low-level offenders in terrorist organizations seems similar to the ways we think about low-level actors in groups that carry out war crimes.

    • Alana Tiemessen February 3, 2014 at 9:44 pm

      It’s only war crimes for which there’s a requirement that the crimes take place during an international or civil war. Both genocide and crimes against humanity are crimes whether they are committed in times of peace or war. Hope that clarifies things!

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