Combatants or Criminals?

WAR (International law); INTERNATIONAL crimes; INTERNATIONAL relations; CRIMINAL procedure

This essay comments on the article "The Law of War in the War on Terror," by Kenneth Roth in the January/February 2004 issue of "Foreign Affairs." Roth chides the administration of U.S. President George W. Bush for using armed force and the law of armed conflict to capture and detain al-Qaeda's key operatives. But a war is in fact raging, and criminal law is too weak a weapon. Destroying the infrastructure of al Qaeda's operations has required diplomacy and the use of force as well as criminal law. The purpose of domestic criminal law is to inflict stigma and punishment, and so it must be applied cautiously. Roth suggests that criminal justice can provide all the tools necessary to defend a democratic public against catastrophic terrorism. But few criminal cases can be built on circumstantial evidence alone, and criminal proof demands near certainty, a very high hurdle that even first-rate intelligence cannot usually meet. The author, Roth, replies to the comment and points out that exceptions to the guarantees of criminal justice, once accepted, can come back to haunt us all. Roth also points out that detaching the notion of war from a traditional battlefield is easy. But it is much too dangerous to indulge.