Choices of Law, Choices of War
Feldman, Noah, Harvard Journal of Law & Public Policy
Is terrorism crime, or is it war? What conceptual framework will or should the United States use to conceptualize its fight against terror? The distinction between crime and war, embodied in international and domestic legal regimes, institutional-administrative divisions, and in such legislation as the Posse Comitatus Act, (1) requires serious rethinking in the light of the terrorist attacks of September 11, 2001. (2) Whether we choose the framework of war, the framework of criminal pursuit and prosecution, or, as is more likely, some complicated combination of the two will have major ramifications in the spheres of law, politics, and policy.
This Essay proposes to examine a few of the most important and interesting problems associated with the choice of framework, and to address in a preliminary way the central question of how the crime/war distinction should be treated, developed, preserved, or revised. Part I investigates the distinction between crime and war and proposes four criteria that underlie that intuitive distinction. Applying these criteria shows that some cases, such as international terrorism, can plausibly be characterized as both crime and war and that these cases therefore undermine the binary character of the crime/war distinction. Part II considers the practical consequences of the crime/war distinction for the pursuit and capture of international terrorists, paying particular attention to a striking asymmetry: on the one hand, criminals generally may not be killed by their pursuers if they pose no immediate threat, but may be punished after capture; adversaries in war, on the other hand, may generally be killed in pursuit without giving quarter, but generally cannot be punished after they are captured. (War criminals constitute a complicated hybrid category.) There is therefore reason to think that U.S. policy can and will treat international terrorists as war adversaries while they are being pursued and as criminals of some sort after they are captured. Part III briefly considers the institutional and administrative implications of the breakdown of the crime/war distinction in the case of combating international terror and discusses the sorts of institutional changes that may be appropriate. The general suggestion of the Essay is that it may not be necessary to choose either crime or war as an exclusive general framework for addressing problems of international terror. Rather, the framework itself may require reexamination--a reexamination perhaps long overdue, but in any case prompted in the United States by the events of September 11.
I. WAR AND CRIME: A BRIEF EXCURSUS
What sort of distinction is the familiar one between war and crime? Begin with the traditional distinction between crimes against domestic law and acts of war against a state. Both crime and war involve acts that in some sense offend against the state--after all, crime was long said to violate "the king's peace." (3) But a crime violates the laws of the state, whereas a war involves a violation of, or a challenge to, a state's sovereignty more generally. What are the constitutive elements of this distinction?
The first element of the crime/war distinction, which interacts in complicated ways with the other elements I shall discuss, is the identity of the actor. International law traditionally took the view that only a sovereign state could perform an act of war. Reciprocally, the domestic law of jurisdiction has traditionally incorporated the view that sovereign states are immune from criminal (and civil) prosecution, as indeed are their leaders. (4) Call this the identity criterion: the actor's identity plays a role in determining the difference between war and crime. The identity criterion may not have an independent logical basis, (5) but it certainly plays a key role in our intuitive understanding of the differences between crime and war. Our intuition tells us that states make wars and individuals commit crimes. …