Academic journal article Denver Journal of International Law and Policy

Transitional Justice in Afghanistan: The Promise of Mixed Tribunals

Academic journal article Denver Journal of International Law and Policy

Transitional Justice in Afghanistan: The Promise of Mixed Tribunals

Article excerpt

In the wake of the September 11th attacks on the World Trade Center and the Pentagon, how to apprehend, question, and punish the perpetrators remains a difficult question to answer. Despite the United States-led military response in Afghanistan, which ousted the Taliban regime, Osama bin Laden and the leaders of al Qaeda remain at large. United States' forces in Afghanistan captured and then jailed several hundred suspects on Guantanamo Naval Base, in Cuba, but the relationship between these suspects and al Qaeda is unclear. (1) United States allies, such as Great Britain, France and Germany, also detained individuals suspected of supporting the September 11th attacks and other terrorist plots. (2) Even countries long considered hostile to the United States, such as Syria, have detained and questioned suspects. (3) Yet with a few exceptions, most of those apprehended appear to have played only a minor role, if any, in the September 11th plot itself. And on U.S. soil, while authorities had at one point detained over 1,000 people believed to be involved in the attacks, only a handful appear to have any link at all to al Qaeda or the September 11th attacks. (4)

If capturing suspects has been difficult, the question of how (or whether) to hold these suspects individually accountable has proven to be even more vexing. The Bush administration has not pursued a consistent course but has, in the main, eschewed the usual criminal law approaches in favor of military solutions. For example, the suspects apprehended in Afghanistan and brought to Guantanamo Naval base are now languishing in legal limbo. The administration asserts that these detainees, who are not U.S. citizens, will not be tried in U.S. courts. (5) Rather, administration officials suggest that they will be brought before newly established military commissions, where they would be afforded fewer rights than would be provided in ordinary criminal proceedings or even in military courts-martial. (6) The administration has also suggested that some of the Guantanamo detainees might be returned to their home countries, or, possibly, not tried at all but rather held until the end of hostilities, whenever that might be. (7) At the same time, administration officials have refused to be strictly bound by the Geneva Convention's requirements for the treatment of detainees. Indeed, Secretary of Defense Rumsfeld has said that the standards imposed by the Conventions will be observed only "for the most part," and that detainees will not be given individual hearings to determine whether they should be awarded prisoner of war status. (8)

Meanwhile, authorities treat suspects captured in the United States inconsistently. Zacarias Moussaoui, a non-citizen accused of participating in the September 11th plot itself, is being tried in federal district court. (9) But Jose Padilla, an American citizen suspected of participating in a new al Qaeda plot, was transferred to military detention outside of the United States. (10) Suspects captured by other governments also face haphazard justice. Some are charged with crimes and will be tried, while others are simply held and questioned. (11)

Although some commentators support the administration's proposed use of military commissions, (12) few condone the indefinite detention of suspects without any form of adjudicatory procedure. Many criticize the use of the military commissions altogether, even if limited to suspects captured in the field of battle, or if established with protections for the rights of the accused. (13) Critics argue that, instead, suspects should be tried in existing domestic courts and that no new institutions are necessary. (14) Others, myself included, have suggested that some form of international forum would provide the best method for holding at least those most responsible for the September 11th attacks accountable for their actions. (15) Yet in light of this administration's hostility to international processes, it seems highly unlikely that, despite its advantages, a full-fledged international court will be used to try those accused of planning and carrying out the September 11th attacks. …

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