The international community continues to struggle to address the proliferation of transnational terrorism. Ideologically driven, non-state affiliated terrorist organizations, the most well-known being Al-Qaeda, have successfully exploited chasms within international law resulting in a fractured and inconsistent global response to their violent actions. In particular, states are unclear and divided as to the due process requirements to be used when a transnational terrorist is captured. Questions concerning confinement, trials, and punishment abound and remain unanswered.
The United States’ extreme difficulties with the Guantanamo detention facility is a stark example of the uncertainty that permeates through targeted nations that capture transnational terrorists. Second-guessing and scathing criticism plague every decision, whether concerning alternative confinement locations, the viability of military commissions, indefinite detention, possible domestic trial venues, or future punishment. Unable to appease all interested groups or to determine an internationally acceptable end-state for detainees, U.S. efforts to shut down the facility have stalled amid internal government squabbling.
The inability to construct an internationally acceptable model for the handling of captured transnational terrorists is by no means a problem unique to the United States. Various other terrorist-affected nations have failed to craft suitable approaches following the detention of a terror suspect. For example, Israel, the United Kingdom, Egypt, and Malaysia rely upon domestic law to allow indefinite detention of terrorist suspects, but are routinely accused of violating international law. Spain and India have treated the Madrid bombings and the Mumbai attacks, respectively, as domestic crimes but are relentlessly questioned as to how they can administer justice in a fair and impartial manner, given their victimization in these events. Still others, such as China in their dealings with the alleged international terrorists in the Uygur region, do not provide captured individuals any legal protections and consequently face universal denouncement for human rights violations.
The challenges posed by Guantanamo and the problems confronting other state detention regimes demonstrate the likelihood that a nation, upon capture of a transnational terrorist, will face widespread criticism for its detention policies. These nations are therefore caught in the predicament of choosing between ineffectual policies with potentially dangerous consequences or enduring international condemnations for their treatment of captured suspects. Forced to decide, terrorist-affected nations will most likely deem self-preservation as paramount and consistently place greater emphasis on security rather than appeasing critics. As a result, these nations will continue handling detainees as they see fit and perpetually dismiss international calls for detention reform as impractical.
However, the belief that states can solve this dilemma by simply prioritizing state safety over international criticism is misguided and dangerous. The rising tide of disapproval for these policies places terrorist-affected nations at significant risk of losing their moral authority when detaining transnational terrorists. This erosion of credibility allows transnational terrorist groups to grow in both stature and ability as global polarization intensifies and populist anger swells. Given the opportunity to divert attention away from their own violent actions and toward the treatment of captured suspects, non-state terrorist groups will continue to find endless recruits, fresh financial support, and sympathetic media outlets. Thus, the decision to overlook international criticism and proceed with current detention practices, though attractive in the short-term, actually poses the greatest long-term threat to the national security of terrorist-affected nations and emphasizes the true difficulty in addressing the on-going terrorist threat.
A Proposed Solution
Yet, within this seemingly irresolvable quagmire lies a unique and promising opportunity for a permanent solution. The eventual realization that current practices are counter-productive and that a workable policy is needed will lead frustrated terrorist-affected nations to re-examine their procedures upon capturing a terror suspect. Driven by an earnest and almost desperate desire for an answer, targeted nations are likely to entertain almost any feasible alternative, including relinquishing sovereign authority over captured terror suspects in return for relief from the detention burden. This willingness to consider ceding control over captured transnational terror suspects allows for the possibility of an internationally crafted framework that addresses the crisis created by the rise of non-state affiliated terrorism.
The benefits of a collective solution to long-suffering, terrorist-affected nations and the global community are potentially immense. An international criminal justice system handling a transnational terrorist would inject predictability, consistency, and objectivity into the current chaos that characterizes terrorist detention and prosecution. The resulting judicial precedents, internationally monitored confinement facilities, and establishment of specific due process rights would quell allegations of unfair treatment and undercut terrorist recruitment propaganda. Simultaneously, individually targeted nations would discontinue their own unpopular detention policies, preventing terrorists from using a nation’s treatment of terror suspects as a call for indiscriminate violence. Unable to justify their brutal actions by criticizing and disparaging these state practices, the allure of the transnational terror ideology would weaken, resulting in a significant diminishment of public sympathy for terrorist groups. An international criminal justice system would therefore absolve targeted nations of the detention burden and solidify their moral underpinning in the ongoing “battle of ideas,” all while providing a viable avenue to detain, prosecute, and confine transnational terrorists.
Some may argue that existing international venues –the International Criminal Court (ICC) or a U.N. ad hoc tribunal resembling the International Criminal Tribunal for the Former Yugoslavia (ICTY)– already dispense justice in transnational terrorism cases and therefore a new international criminal justice framework is redundant and unnecessary. Admittedly, an established international venue may be the appropriate forum for prosecuting a transnational terrorist; however, simply conducting a judicial proceeding will not adequately answer the various non-trial related questions that arise from the detention of a terror suspect. Current international tribunals offer, at best, an incomplete and partial methodology to the processing of a captured terror suspect. In contrast, a comprehensive international criminal justice system that specifies how to handle a transnational terror suspect from the point of capture, through prosecution, and into post-trial confinement addresses the disjointed problems arising from transnational terrorist detention and provides a much needed universal response to non-state affiliated terrorism.
An International Criminal Justice Framework
Upon capture of an alleged transnational terrorist, a detaining state would need to determine possible eligibility for entry into the international criminal justice system by clarifying the status of the suspect. Analogous to the obligation found within Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (GC III), which requires that a competent tribunal resolve questions concerning Prisoner of War status for captured belligerents during an international armed conflict, a detaining state would use an administrative hearing to answer the threshold question of whether the suspect is a transnational terrorist. The hearing, both non-adversarial and procedurally simple, would focus on the suspect’s conduct, along with possible membership in a non-state affiliated terror group, to establish transnational terror status. If transnational terror status is established, the detaining state would present its finding before a magistrate of the international criminal justice system.
The magistrate would not scrutinize the administrative hearing’s finding, leaving that issue for pre-trial motions, but rather would review the detaining state’s handling of a suspect from the point of capture until the request for transfer. Again, similar to how Article 5 of GC III bestows the full Prisoner of War protections on captured individuals with an unclear status as they await a definitive determination, detaining states would be required to provide safeguards delineated by the international community to all alleged transnational terrorists within their control. Violations of these protections, manipulation of the administrative hearing, or altering a suspect’s status to avoid scrutiny would result in possible denial of the detaining state’s request for transfer to the international criminal justice system. “Denial” due to unacceptable behavior would act as a public admonition placing disrepute on the state which, along with the possibility of losing the various other benefits offered by a collective solution, would provide an additional incentive to comply with these internationally established norms. Further, a willingness by the magistrate to reject tainted requests for transfer would facilitate confidence and trust in the international criminal justice framework.
If the magistrate determined that the detaining state acted appropriately and approved the request for transfer into the international criminal justice system, the suspect would immediately move to an internationally administered pre-trial confinement facility. Responsible for both providing a humane environment for the preparation of the suspect’s defense and offering assurances to the targeted nation that any immediate threat is suppressed, the facility would need to weigh delicately the alleged transnational terrorist’s human rights with the required heightened security measures. Though challenging, transparent treatment standards and extensive monitoring by the International Committee of the Red Cross (ICRC) would alleviate concerns of abuse or maltreatment, while still allowing for objectively reasonable security precautions. Existing international facilities, such as the International Criminal Tribunal for Rwanda detention facility in Tanzania or the United Nations Detention Unit in the Netherlands, offer possible models for the detention facility and provide valuable insights into executing this balancing act.
While awaiting trial, suspects would have robust due process rights, including liberal access to an appointed defense counsel, to help draft and present all forms of preliminary motions. A non-exhaustive list of possible motions would include a request for release pending trial, dismissal due to an unsupported finding of “transnational terrorist status” by the detaining state, or a venue change due to lack of jurisdiction. If these pre-trial efforts were unsuccessful, the suspect would be brought before an international tribunal with jurisdiction over the crime of “transnational terrorism.” Regardless of whether an existing international tribunal is adapted or a new forum is constructed to conduct these prosecutions, preliminary questions concerning logistics, court composition and administration, applicable law, evidentiary and procedural rules, trial process, punishments, and numerous other issues would need to be answered. The frameworks for current international courts, for example the Rome Statute of the ICC or the Statute of the International Tribunal for the Former Yugoslavia, demonstrate the practicality of resolving these numerous issues.
The more troubling problem facing an international tribunal is defining the crime. Long a contentious issue in international discussions, the term “terrorism” is virtually impossible to define precisely. As demonstrated repeatedly in the world body, attempting to draft an enumerated list of acts that constitute “terrorism” will most likely result in unending debates. For this reason, adopting a vague definition would provide a solution to this impasse and allow the international tribunal to exercise jurisdiction. An example of a workable definition is found within United Nations Security Council Resolution 1566 which defines terrorism as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.”
To ensure that empowering the international tribunal with far-reaching jurisdiction would not politicize the system, the tribunal’s originating statute would need to contain articles relating to immunity and state actor protection. As an additional counter-weight to the possibility of misuse, detaining states would always retain the right not to use the international criminal justice system. If detaining states consistently decided not to participate due to discretionary abuse by the court or a perceived lack of impartiality, the limited international involvement would threaten the legitimacy of the international criminal justice system. This need for broad international involvement would therefore encourage fair and neutral adjudication by the tribunal.
If the tribunal deemed the suspect guilty of transnational terrorism, the convicted individual would transfer from the pre-trial confinement facility into an internationally administered, post-trial penitentiary to serve their adjudicated sentence. Though the transnational terrorist’s basic human rights would still be at the forefront of the penitentiary’s concerns, the facility would acutely focus on rehabilitation and terrorist preventive measures. Similar to the pre-trial facility, the post-trial penitentiary would implement transparent treatment standards and request ICRC monitoring to minimize the terror propaganda possibilities presented by a more controlled confinement environment. No international post-trial criminal facilities currently exist; thus the prison, possibly called the Transnational Terrorism Penitentiary, would rely on internationally respected domestic prison systems to provide ideas for implementation and administration.
Admittedly, the proposed framework must clear many significant and difficult hurdles to be viable. However, the increasingly prolific violence of transnational terrorist groups provides a warning to the international community that continued indifference and incoherence in policy will only encourage future indiscriminate attacks on individual nations and their civilian populations. The urgent need for collective action is apparent as these ideologically based, non-state affiliated groups continue to gain influence and ability. Only a comprehensive international criminal justice system built through global cooperation will provide the moral force required to counteract the recurring threat presented by transnational terrorism and thus dissuade future generations from embracing ideologically driven violence.