by William J. Aceves

Sept 26, 2001

Aceves is Associate Professor of Law at California Western School of Law.  He teaches on human rights and international law.

As America begins the transition from victim to survivor, it must decide how it will respond to these horrible acts of violence that killed thousands of people and scarred the nation. President Bush has referred to the terrorist attacks as acts of war and vows that justice will be done. Many people believe that military reprisals provide the only mechanism for achieving justice in time of war.

While a military response is appropriate under national and international law for acts of war, it is not the only option. Criminal prosecution — judging suspects under the rule of law — is an equally valid and complementary response. Indeed, our own experiences with violence and terror in the past century affirm the wisdom of a measured response, tempered by the rule of law. As history reveals, criminal prosecution is a legitimate response to acts of violence, including acts of war.

During the Second World War, it was unclear how the Allied Powers would respond to the capture of Axis leaders. Would the military and political leaders of Nazi Germany be summarily executed for their acts of aggression, war crimes, and crimes against humanity? Or would they be prosecuted for their actions? The Allied Powers, including the United States, determined that summary execution would serve little purpose. It would be more appropriate to prosecute these individuals for initiating the war and its accompanying atrocities.

Accordingly, the International Military Tribunal at Nuremberg was established to prosecute the senior military and political leaders of Nazi Germany. A similar tribunal was established to prosecute the leaders of Imperial Japan. In addition to these tribunals, the Allied Powers conducted hundreds of smaller trials. These tribunals served to affirm the importance and power of the rule of law. They also set the foundation for future efforts to promote the establishment of international criminal law.

The international community developed similar tribunals following the outbreak of hostilities in the former Yugoslavia and Rwanda. The U.N. Security Council, with the support of the United States, authorized the establishment of international criminal tribunals to prosecute perpetrators of war crimes, genocide and crimes against humanity. Indictments have been issued against numerous individuals from Yugoslavia and Rwanda, and several defendants have already been convicted. These tribunals have decided a number of groundbreaking cases on international criminal law. The United States has firmly supported these efforts.

There is an important lesson to be learned from these experiences. While military action may be necessary to defeat an intransigent foe, criminal prosecution is often required to provide true closure.

Criminal prosecution, even in time of war, serves several purposes. It performs the crucial function of distinguishing individual accountability from group responsibility. Groups identified by certain shared characteristics often receive public blame for the crimes of relatively few offenders. Legal proceedings against individuals, therefore, focus blame where it belongs, calling them to account for their crimes and absolving communal blame.

Criminal prosecution creates a public record, detailing the abuses committed by perpetrators and the injustices suffered by victims. Above all, criminal prosecution serves to reinforce the power of law over violence. It affirms the principle that disputes, whether political, religious, or social, cannot be resolved through acts of violence. It is a civil and humane response to acts that are neither civil nor humane.

Our actions throughout this war against terrorism must remain guided by the rule of law. While it may take military action to win the battle, violence cannot end this war.