Jihad Unspun - In Human Terms

The horrific attacks of September 11, 2001 on the World Trade Center and the Pentagon that claimed the lives of thousands of civilians constituted criminal acts under both United States and international law. In particular, as acts of murder committed deliberately as part of a widespread attack against a civilian population, they constitute crimes against humanity which can be prosecuted by any nation on earth. Chief among suspected perpetrators is Osama bin Laden, a Saudi exile in Afghanistan, who is accused of having inspired, organized, trained and bankrolled a network of militants. Allegedly included in this network are groups dedicated to covert attacks on U.S. targets, both military and civilian, as well as armed forces affiliated with bin Laden that operate under the overall command of Taliban armed forces in Afghanistan.

As this paper explains, governments may not use unlimited methods and means to pursue war, even a war against indistinct enemies. International humanitarian law, also known as the "laws of war," is designed, in principal part, to protect civilians and other non-combatants. Warring forces must distinguish combatants from non-combatants. As discussed below, these forces are required to minimize harm to civilians and civilian facilities and to refrain entirely from attacks that would disproportionately harm the civilian population and from attacks whose effects would be indiscriminate as between combatants and civilians.

Despite the existence of an armed conflict, certain aspects of international human rights law also remain in force. Even in a state of emergency, it is unlawful to suspend some rights, such as the prohibition on arbitrary deprivation of life, the prohibition of torture, freedom of religion, and trial ex post facto. Other civil and political freedoms may be derogated in an emergency, but under highly restricted conditions: the derogation must be for a limited period of time, in a way that involves no invidious discrimination, and only to the extent strictly required by an emergency so severe that it threatens the life of the nation.

The two bodies of law - humanitarian and human rights - can simultaneously govern different geographic areas. For example, an armed conflict raging in one country would be governed primarily by humanitarian law while in another country the pursuit of criminal networks through traditional law-enforcement means would be governed by human rights law, with full rights protections regulating the use of force and the fairness of trial, even if those networks had links to one of the parties in the armed conflict in the first country. Whether those who become the targets of the United States and its allies in the emerging anti-terrorism coalition are viewed as criminals or as an enemy in wartime is not merely a rhetorical distinction, since it affects such basic matters as when lethal force can be used. This paper addresses various questions about the requirements of international humanitarian and human rights law and the interplay between the two.