Class 4B - Criminal Justice and International Terrorism Post-9/11 (171-237).
Massive terrorist attacks such as that seen in 9/11 were clearly crimes under the domestic
law of the USA and almost every other state. However, Duffy argues that those crimes also
epitomise the sort of massive, systematic and devastating attacks that are embodied in the
concept of CAH, so might also be international crime. Less clear whether would reach
organisational policy requirement, however. That said, might also constitute offences under
specific treaty crimes, such as those prohibited hijacking or terrorist bombing in as far as
these are properly implemented within a state’s domestic legal order.
In practice, however, whilst the effects of terrorism might be prosecuted as an international
crime, terrorism will be (and has been), predominantly prosecuted at a national level, as
long as a state has a well-defined offence of terrorism within its domestic criminal law.
4B.1 Prosecution in practice post 9-11
4B.1.1 Paucity of Prosecutions post-9/11
Perhaps most notable feature of international criminal practice immediately following 9-11
was its scarcity. Despite UNSCRES 1368 (2001) underscoring the importance of the justice
objective and any states reaffirming their commitments in this regard, strikingly few
prosecutions for terrorist practice. Rather, in the early years it appeared as if national
criminal law had been almost entirely replaced by security detention.
Although practice is very different today, many of the high level AQ leaders responsible for
9/11 have yet to be prosecuted properly, either in the US or elsewhere. In addition, whilst
the neglect of criminal law was worse 2 decades ago, would be naïve to suggest that the
problem has been solved.
Why has there been such a lack of prosecutions, particularly at the highest levels?
(i) Investigative and evidentiary challenges posed by illicit transnational networks,
which are extremely difficult to penetrate. Similarly, when evidentiary reports and
intelligence are gathered, they often lack the credentials necessary to prove guilt
beyond reasonable doubt in a criminal process.
(ii) International nature of the crime of terrorism and the difficulties posed by
obtaining international cooperation in order to gather evidence.
(iii) National reluctance? Guatanamo Task Force 2010 posed questions posed
whether all prosecutorial and evidentiary avenues had been exhausted in relation to
those detained post 9/11.
(iv) Lack of political will – particularly at the early stages – to address international
terrorism as criminal law enforcement issue, which is a rational symptom of the
focus on the quasi-military nature of the GWOT. Many of those detained in this
regard continue to be treated as enemy combatants and either killed or subjected to
, ‘security detention’ on uncertain legal bases. In addition, these detentions are
primarily aimed at intelligence gathering, not on securing criminal trials. US, for
example, has been accused of being more focussed upon preventing terrorism than
it is on prosecuting terrorists.
(v) Overuse of the GWOT paradigm and as such, ‘war-time’ detention. Increasing
willingness in states like the USA to use criminal law as part of their counter-
terrorism strategies, but the ‘war’ paradigm continues to cast a long shadow. This is
seen most commonly in the continued use of Military Commissions in order to
dispense ‘military justice’ rather than using the regular national, criminal legal
system to deal with terrorists. It also demonstrated by the vast number of those who
continue to be detained with little to no hope of ever being put on trial. Moreover, in
the event that these individuals are subjected to a criminal process and eventually
released, US statements have made clear that they may remain subject to
administrative detention (US Statements post Hamden and Rumsfeld [2006])
4B.1.2 Terrorism trials
Exponential growth of prosecutions of terrorists in recent years. However, need to be
careful not to let that obscure the fact that this trend tells us nothing about the quality of
those terrorism prosecutions. Legislation in this regard has become increasingly broad
reaching in nature, even to the point of being abusive. Convictions have been rendered, for
example, from conduct ranging from blogging to protesting, which is not conduct that most
would commonly associate with terrorism at all.
Nonetheless, undoubtedly the case that there has been a reinvigorated approach to the use
of criminal law to address the terrorism threat. Number of relatively high-profile
prosecutions of AQ / terrorist operatives in recent years in the USA (United States v. Abu Ali
[2008]; United States v. Abdulmutallab [2012]). However, striking in this regard is the
continued use of military commissions, which circumvent ordinary fair trial procedures,
although some ordinary procedures have been employed.
High number of convictions have resulted from guilty pleas; 80% in the USA on one
estimate. These will then lead to an expedited trial which does not have the same
evidentiary requirements in order to prove the case (E.G – USA v Zacarias Moussaoui
[2006]). Questions have arisen regarding the reliability of these pleas, particularly where the
alternative for the individual the prospect of acquittal is followed by indefinite detention as
an enemy combatant.
Another notable characteristic of the terrorism trial charges in the USA is the lack of
proceedings brought on the basis of involvement in the 9/11 attacks, or because of high
level membership of AQ. Instead, charges have usually been brought on the basis of
‘material support’ for AQ. In many cases, this is premised on periods spent within terrorist
training camps, which has in fact been found to be insufficient elsewhere (German case –
Mzoudi [2004]). Other charged include conspiracy to commit acts of terrorism or to provide
material support to terrorist groups.
,Issues with some of these (often dubious) charges shown in Hamden v Rumsfeld where
accused initially convicted of ‘material support for terrorism’ as a war crime, which the
appeal court overturned on the basis that no such crime existed in domestic or international
law.
Other examples of challenges to charges brought against those accused of terrorist offences
include: USA v Abu Ali [2008] Accused tried to challenge his indictment due to the delay in
presenting him to court, during which time he was the victim of extraordinary rendition.
Court ultimately rejected the appeal on the grounds that the right to ‘prompt presentment’
only applied to domestic authority. However, strong dissent argued that this criterion is met
where these authorities are actively involved in the individual’s detention, wherever it
occurs.
Accused followed this challenge with several others, arguing on the inadmissibility of
evidence obtained by torture and on the grounds of his lack of access to the
evidence used against him. Court rejected these too, supporting the position that the
givt could use the ‘silent witness’ procedure under which Mr. Ali would only have
access to the documents used against him when they had been redacted.
Case illustrates major challenges facing accused in cases of this nature where procedures
might be different from what would otherwise be expected in normal criminal proceedings
and evidence might be obtained from international cooperation and be of questionable
authenticity / not meet fair trial guarantees etc.
In Europe, Germany has taken leading role in using criminal justice to respond to terrorism.
Slightly different approach, however. Accused (Mounir el-Motassdeq) in Decision of the
Federal Supreme Court of Germany, 3 March 2004, Strafverteitiger (BGH), StV 4/2004, 7
February 2006 had their convictions quashed by the Federal Supreme Court on the basis
that the US had refused to share potential exculpatory evidence. Court highlighted the
danger of allowing the criminal process (and the guarantees contained therein) to be
subverted by a state withholding intelligence where its own self-interest was at stake. Case
went through a number of appeals and court found eventually that evidence that it had was
sufficient for it to convict based on the accused’s participation in 9/11. Sentenced to 15
years in prison. Similar experiences throughout Europe. Useful example to highlight the
different approaches to enforcing fair trial guarantees and also to demonstrate the
importance of intelligence sharing between states.
UK is another European state with a history of terrorism, although ti has received criticism
for its relatively low prosecution rates, which do not match up with the broad ranging
investigative power assumed post 9/11. Although some high-profile terrorism cases have
been completed post 7/7, there has been some questions raised regarding the abusive
circumstances of the accused’s pre-trial detention and torture. R. v. Ahmed (Rangzieb), R. v.
Ahmed (Habib).
Example of practice of criminal courts on African continent is case against those accused of
the ‘Kampala world cup bombings’ in 2010, which was heard before Ugandan courts in 2011
, (Uganda v Hussein Hassan [2016]). Case graphically illustrates number of characteristics and
challenges associated with terrorism trials:
(i) Process of investigations and transfer via extra-legal rendition is reminder of worst
aspects of the lack of due process in handling of terror suspects.
(ii) Among individuals detained was human rights activist who had advised the other
suspects, and claimed he was being punished for his human rights work. This recalls
the danger of broad-ranging approaches to counter-terrorism which include
‘association’ with terrorism as a criminal offence. (These charges were eventually
dropped, although after this suspect had suspect a year in detention).
(iii) When accused brought before court and granted bail (which is basic right in the
absence of exceptional circumstances) there were huge political pressures, which
demonstrates the political pressures within which judges and legislators operate
when dealing with issues relating to terrorism. In this instant case, many of the
suspects were acquitted due to lack of evidence which only served to fuel public
outrage. (Some suggest that these acquittals should be seen as a failure, but in
actuality should be seen as a credit to the court, which ensures that the RoL was
observed and that the guilt of the defendants had to be proven beyond reasonable
doubt).
Similar moves in Asia and the Middle East to use criminal law in order to regulate / respond
to terrorist threats. As such, can see that is vast and developing body of jurisprudence
regarding terrorist trials on global scale. Can identify similar challenges and trends
throughout all of these systems (evidence, fair trial, politicisation etc).
4B.1.3 International vs national models of justice post-9/11
4B.1.3.1 Focus on justice for terrorism at the national level
Increased focus on combatting terrorism and the challenges faced in the national systems’
responses raises questions as to the appropriate vertical and horizontal relationship
between national and international courts. Should national courts take priority over
international ones when dealing with crimes of this nature, or vice versa? (ICC bound by
complementarity but regional courts and ad hoc tribunals not necessarily!).
Proponents of an international tribunal in the wake of 9/11 suggested that true justice
favoured prosecution of 9/11 offences before an impartial tribunal outside of the US. Others
argued that in as far as domestic courts were willing and able to prosecute these offences,
international alternatives were unnecessary.
Despite 9/11 occurring on the cusp of the international justice wave, proposals for an
international tribunal never gained traction. Moreover, ICC would not have had jurisdiction
over the 9/11 attacks themselves as entered into force in 2002 and has no retroactive effect
under Art. 11. Might have done if SC had referred, US position in relation to the courts
would have made this impossible. ICC therefore played no role in the prosecution of those
associated with the 9/11 attacks.
Massive terrorist attacks such as that seen in 9/11 were clearly crimes under the domestic
law of the USA and almost every other state. However, Duffy argues that those crimes also
epitomise the sort of massive, systematic and devastating attacks that are embodied in the
concept of CAH, so might also be international crime. Less clear whether would reach
organisational policy requirement, however. That said, might also constitute offences under
specific treaty crimes, such as those prohibited hijacking or terrorist bombing in as far as
these are properly implemented within a state’s domestic legal order.
In practice, however, whilst the effects of terrorism might be prosecuted as an international
crime, terrorism will be (and has been), predominantly prosecuted at a national level, as
long as a state has a well-defined offence of terrorism within its domestic criminal law.
4B.1 Prosecution in practice post 9-11
4B.1.1 Paucity of Prosecutions post-9/11
Perhaps most notable feature of international criminal practice immediately following 9-11
was its scarcity. Despite UNSCRES 1368 (2001) underscoring the importance of the justice
objective and any states reaffirming their commitments in this regard, strikingly few
prosecutions for terrorist practice. Rather, in the early years it appeared as if national
criminal law had been almost entirely replaced by security detention.
Although practice is very different today, many of the high level AQ leaders responsible for
9/11 have yet to be prosecuted properly, either in the US or elsewhere. In addition, whilst
the neglect of criminal law was worse 2 decades ago, would be naïve to suggest that the
problem has been solved.
Why has there been such a lack of prosecutions, particularly at the highest levels?
(i) Investigative and evidentiary challenges posed by illicit transnational networks,
which are extremely difficult to penetrate. Similarly, when evidentiary reports and
intelligence are gathered, they often lack the credentials necessary to prove guilt
beyond reasonable doubt in a criminal process.
(ii) International nature of the crime of terrorism and the difficulties posed by
obtaining international cooperation in order to gather evidence.
(iii) National reluctance? Guatanamo Task Force 2010 posed questions posed
whether all prosecutorial and evidentiary avenues had been exhausted in relation to
those detained post 9/11.
(iv) Lack of political will – particularly at the early stages – to address international
terrorism as criminal law enforcement issue, which is a rational symptom of the
focus on the quasi-military nature of the GWOT. Many of those detained in this
regard continue to be treated as enemy combatants and either killed or subjected to
, ‘security detention’ on uncertain legal bases. In addition, these detentions are
primarily aimed at intelligence gathering, not on securing criminal trials. US, for
example, has been accused of being more focussed upon preventing terrorism than
it is on prosecuting terrorists.
(v) Overuse of the GWOT paradigm and as such, ‘war-time’ detention. Increasing
willingness in states like the USA to use criminal law as part of their counter-
terrorism strategies, but the ‘war’ paradigm continues to cast a long shadow. This is
seen most commonly in the continued use of Military Commissions in order to
dispense ‘military justice’ rather than using the regular national, criminal legal
system to deal with terrorists. It also demonstrated by the vast number of those who
continue to be detained with little to no hope of ever being put on trial. Moreover, in
the event that these individuals are subjected to a criminal process and eventually
released, US statements have made clear that they may remain subject to
administrative detention (US Statements post Hamden and Rumsfeld [2006])
4B.1.2 Terrorism trials
Exponential growth of prosecutions of terrorists in recent years. However, need to be
careful not to let that obscure the fact that this trend tells us nothing about the quality of
those terrorism prosecutions. Legislation in this regard has become increasingly broad
reaching in nature, even to the point of being abusive. Convictions have been rendered, for
example, from conduct ranging from blogging to protesting, which is not conduct that most
would commonly associate with terrorism at all.
Nonetheless, undoubtedly the case that there has been a reinvigorated approach to the use
of criminal law to address the terrorism threat. Number of relatively high-profile
prosecutions of AQ / terrorist operatives in recent years in the USA (United States v. Abu Ali
[2008]; United States v. Abdulmutallab [2012]). However, striking in this regard is the
continued use of military commissions, which circumvent ordinary fair trial procedures,
although some ordinary procedures have been employed.
High number of convictions have resulted from guilty pleas; 80% in the USA on one
estimate. These will then lead to an expedited trial which does not have the same
evidentiary requirements in order to prove the case (E.G – USA v Zacarias Moussaoui
[2006]). Questions have arisen regarding the reliability of these pleas, particularly where the
alternative for the individual the prospect of acquittal is followed by indefinite detention as
an enemy combatant.
Another notable characteristic of the terrorism trial charges in the USA is the lack of
proceedings brought on the basis of involvement in the 9/11 attacks, or because of high
level membership of AQ. Instead, charges have usually been brought on the basis of
‘material support’ for AQ. In many cases, this is premised on periods spent within terrorist
training camps, which has in fact been found to be insufficient elsewhere (German case –
Mzoudi [2004]). Other charged include conspiracy to commit acts of terrorism or to provide
material support to terrorist groups.
,Issues with some of these (often dubious) charges shown in Hamden v Rumsfeld where
accused initially convicted of ‘material support for terrorism’ as a war crime, which the
appeal court overturned on the basis that no such crime existed in domestic or international
law.
Other examples of challenges to charges brought against those accused of terrorist offences
include: USA v Abu Ali [2008] Accused tried to challenge his indictment due to the delay in
presenting him to court, during which time he was the victim of extraordinary rendition.
Court ultimately rejected the appeal on the grounds that the right to ‘prompt presentment’
only applied to domestic authority. However, strong dissent argued that this criterion is met
where these authorities are actively involved in the individual’s detention, wherever it
occurs.
Accused followed this challenge with several others, arguing on the inadmissibility of
evidence obtained by torture and on the grounds of his lack of access to the
evidence used against him. Court rejected these too, supporting the position that the
givt could use the ‘silent witness’ procedure under which Mr. Ali would only have
access to the documents used against him when they had been redacted.
Case illustrates major challenges facing accused in cases of this nature where procedures
might be different from what would otherwise be expected in normal criminal proceedings
and evidence might be obtained from international cooperation and be of questionable
authenticity / not meet fair trial guarantees etc.
In Europe, Germany has taken leading role in using criminal justice to respond to terrorism.
Slightly different approach, however. Accused (Mounir el-Motassdeq) in Decision of the
Federal Supreme Court of Germany, 3 March 2004, Strafverteitiger (BGH), StV 4/2004, 7
February 2006 had their convictions quashed by the Federal Supreme Court on the basis
that the US had refused to share potential exculpatory evidence. Court highlighted the
danger of allowing the criminal process (and the guarantees contained therein) to be
subverted by a state withholding intelligence where its own self-interest was at stake. Case
went through a number of appeals and court found eventually that evidence that it had was
sufficient for it to convict based on the accused’s participation in 9/11. Sentenced to 15
years in prison. Similar experiences throughout Europe. Useful example to highlight the
different approaches to enforcing fair trial guarantees and also to demonstrate the
importance of intelligence sharing between states.
UK is another European state with a history of terrorism, although ti has received criticism
for its relatively low prosecution rates, which do not match up with the broad ranging
investigative power assumed post 9/11. Although some high-profile terrorism cases have
been completed post 7/7, there has been some questions raised regarding the abusive
circumstances of the accused’s pre-trial detention and torture. R. v. Ahmed (Rangzieb), R. v.
Ahmed (Habib).
Example of practice of criminal courts on African continent is case against those accused of
the ‘Kampala world cup bombings’ in 2010, which was heard before Ugandan courts in 2011
, (Uganda v Hussein Hassan [2016]). Case graphically illustrates number of characteristics and
challenges associated with terrorism trials:
(i) Process of investigations and transfer via extra-legal rendition is reminder of worst
aspects of the lack of due process in handling of terror suspects.
(ii) Among individuals detained was human rights activist who had advised the other
suspects, and claimed he was being punished for his human rights work. This recalls
the danger of broad-ranging approaches to counter-terrorism which include
‘association’ with terrorism as a criminal offence. (These charges were eventually
dropped, although after this suspect had suspect a year in detention).
(iii) When accused brought before court and granted bail (which is basic right in the
absence of exceptional circumstances) there were huge political pressures, which
demonstrates the political pressures within which judges and legislators operate
when dealing with issues relating to terrorism. In this instant case, many of the
suspects were acquitted due to lack of evidence which only served to fuel public
outrage. (Some suggest that these acquittals should be seen as a failure, but in
actuality should be seen as a credit to the court, which ensures that the RoL was
observed and that the guilt of the defendants had to be proven beyond reasonable
doubt).
Similar moves in Asia and the Middle East to use criminal law in order to regulate / respond
to terrorist threats. As such, can see that is vast and developing body of jurisprudence
regarding terrorist trials on global scale. Can identify similar challenges and trends
throughout all of these systems (evidence, fair trial, politicisation etc).
4B.1.3 International vs national models of justice post-9/11
4B.1.3.1 Focus on justice for terrorism at the national level
Increased focus on combatting terrorism and the challenges faced in the national systems’
responses raises questions as to the appropriate vertical and horizontal relationship
between national and international courts. Should national courts take priority over
international ones when dealing with crimes of this nature, or vice versa? (ICC bound by
complementarity but regional courts and ad hoc tribunals not necessarily!).
Proponents of an international tribunal in the wake of 9/11 suggested that true justice
favoured prosecution of 9/11 offences before an impartial tribunal outside of the US. Others
argued that in as far as domestic courts were willing and able to prosecute these offences,
international alternatives were unnecessary.
Despite 9/11 occurring on the cusp of the international justice wave, proposals for an
international tribunal never gained traction. Moreover, ICC would not have had jurisdiction
over the 9/11 attacks themselves as entered into force in 2002 and has no retroactive effect
under Art. 11. Might have done if SC had referred, US position in relation to the courts
would have made this impossible. ICC therefore played no role in the prosecution of those
associated with the 9/11 attacks.
