As America begins the transition from victim to
survivor, it must decide how it will respond to these horrible acts
of violence that killed thousands of people and scarred the nation.
President Bush has referred to the terrorist attacks as acts of war
and vows that justice will be done. Many people believe that
military reprisals provide the only mechanism for achieving justice
in time of war.
While a military response is appropriate under
national and international law for acts of war, it is not the only
option. Criminal prosecution -- judging suspects under the rule of
law -- is an equally valid and complementary response. Indeed, our
own experiences with violence and terror in the past century affirm
the wisdom of a measured response, tempered by the rule of law. As
history reveals, criminal prosecution is a legitimate response to
acts of violence, including acts of war.
During the Second World War, it was unclear how the
Allied Powers would respond to the capture of Axis leaders. Would
the military and political leaders of Nazi Germany be summarily
executed for their acts of aggression, war crimes, and crimes
against humanity? Or would they be prosecuted for their actions? The
Allied Powers, including the United States, determined that summary
execution would serve little purpose. It would be more appropriate
to prosecute these individuals for initiating the war and its
accompanying atrocities.
Accordingly, the International Military Tribunal at
Nuremberg was established to prosecute the senior military and
political leaders of Nazi Germany. A similar tribunal was
established to prosecute the leaders of Imperial Japan. In addition
to these tribunals, the Allied Powers conducted hundreds of smaller
trials. These tribunals served to affirm the importance and power of
the rule of law. They also set the foundation for future efforts to
promote the establishment of international criminal law.
The international community developed similar
tribunals following the outbreak of hostilities in the former
Yugoslavia and Rwanda. The U.N. Security Council, with the support
of the United States, authorized the establishment of international
criminal tribunals to prosecute perpetrators of war crimes, genocide
and crimes against humanity. Indictments have been issued against
numerous individuals from Yugoslavia and Rwanda, and several
defendants have already been convicted. These tribunals have decided
a number of groundbreaking cases on international criminal law. The
United States has firmly supported these efforts.
There is an important lesson to be learned from
these experiences. While military action may be necessary to defeat
an intransigent foe, criminal prosecution is often required to
provide true closure.
Criminal prosecution, even in time of war, serves
several purposes. It performs the crucial function of distinguishing
individual accountability from group responsibility. Groups
identified by certain shared characteristics often receive public
blame for the crimes of relatively few offenders. Legal proceedings
against individuals, therefore, focus blame where it belongs,
calling them to account for their crimes and absolving communal
blame.
Criminal prosecution creates a public record,
detailing the abuses committed by perpetrators and the injustices
suffered by victims. Above all, criminal prosecution serves to
reinforce the power of law over violence. It affirms the principle
that disputes, whether political, religious, or social, cannot be
resolved through acts of violence. It is a civil and humane response
to acts that are neither civil nor humane.
Our actions throughout this war against terrorism
must remain guided by the rule of law. While it may take military
action to win the battle, violence cannot end this war.
