Since September 11, 2001, transnational terrorism has been treated as both crime and war. Accordingly, the U.S. and other states have captured and held members of Al Qaeda and associated forces as law-of-war detainees, targeted such individuals in major military operations and surgical strikes on the territories of (certain) third-party states, and have prosecuted suspected members of those groups, for “terrorism” offenses and for “war crimes,” in civilian courts and military tribunals. This course will explore the reasons for this novel development and consider its ramifications for public international law, the law of war, and U.S. constitutional law.
The reasons for the peculiar legal posture of transnational terrorism are best understood in the context of broader trends in the history of international law. In 1880, a leading international law treatise stated as axiomatic that “[p]rima facie, a state is responsible for all acts . . . within its territory by which another state is injuriously affected.” By 2007, the International Court of Justice, ruling on states’ duties under the Genocide Convention, stressed that the Court did not “purport to find whether . . . there is a general obligation on states to prevent the commission . . . of acts contrary to . . . norms of general international law.” The intervening century had witnessed a diminution in the recognition and enforcement of interstate duties and an increase in states’ acting directly on alien individuals in foreign territories. Those trends were reflected in claims to a “protective principle” of extraterritorial criminal jurisdiction over aliens in the nineteenth century, the addition of “targeted sanctions” against aliens abroad at the close of the twentieth century, and the emergence, most recently, of “targeted killing” of—or, more broadly, “armed conflict” against—private actors abroad in the twenty-first century.
The course will examine the implications of these developments for the interstate system itself, the law of war (in particular, the distinction between combatants and civilians that forms the core of the jus in bello), and the structures of the U.S. Constitution governing war, crime, and military jurisdiction.