JUSTICE FOR 9/11 AND ITS AFTERMATH IS NOT ONE SIZE FITS ALL
DIFFERENT TYPES OF SUSPECTS REQUIRE DIFFERENT JUDICIAL TREATMENTo:p>

Rights Group Outlines how Various Judicial Options Better Serve Specific Cases  

The capture of an American in the Taliban army has raised serious questions about how and where the U.S. would – and could -- try the wide range of suspects in the September 11^th attacks and the armed conflict in Afghanistan. 

Human Rights First supports the Administration’s commitment to bring perpetrators of serious crimes to justice.  We believe, however, that it is essential for any trials to uphold core U.S. values of due process.  As outlined, the military commissions created by President Bush’s military order, fail in this regard and are unwise for several other reasons, including the fact that their verdicts will lack international legitimacy, they will provide other nations with ammunition to set up similar courts, and xxx. 

Up until now, much of the debate about military commissions has centered on whether the U.S. should try Osama bin Laden in a military commission and what such a commission should look like.  Ignored in this debate is the likely fact that Osama bin Laden will not be captured alive.  

The question, then, is what to do with all of those members of al Qaeda and the Taliban who are suspected of serious human rights crimes.  What are the best options for brining them to justice? 

As a way to clarify what international humanitarian law will permit in bringing these suspects to justice, Human Rights First has outlined, in broad categories, some of the types of cases that are likely to arise and the best options for seeking justice in those cases. 

In these scenarios, we include three types of justice options (see full list below): 

• U.S. criminal courts
• An international tribunal, if one were set up.  (We recommend the Bush Administration set up an international criminal tribunal much like the one for the former Yugoslavia or Rwanda or the Lockerbie or Nuremberg Tribunals.) 
• Military commissions. 

SCENARIOS OF LIKELY CASES 

1.  U.S. citizen, apprehended in Afghanistan fighting for al-Qaeda or Taliban 

This case could be tried in U.S. criminal court or by U.S. court martial.  The case could go before an international tribunal if there was proof that a war crime was committed. Such a case could not appear before a military commission because the individual is a U.S. citizen.  If the individual only took up arms, he cannot be tried for war crimes.  He could be tried in the U.S. for treason or seditious conspiracy. 

Human Rights First believes XXX would be the best option because  

2.  Non US citizen, apprehended in Afghanistan fighting for al-Qaeda or Taliban 

This case could be tried in an international tribunal, when one is set up, or military commission --  but only if there is proof that the person committed a war crime (killing unarmed prisoners of war, shooting civilians, rape, etc.).  

The individual cannot be prosecuted for the simple act of taking up arms in an armed conflict (under belligerent immunity).  He also cannot be prosecuted under the laws of war for membership in al-Qaeda.  Membership in al Qaeda will present complicated legal issues since “membership” is difficult to prove; the laws of war do not provide for concepts of criminal conspiracy such as those found under U.S. RICO laws.  

Human Rights First believes XXX would be the best option because  

3.  Taliban solider who captured Northern Alliance soldiers and then disarmed and shot them.  

This case can be tried in an international tribunal or the military commission for war crimes.  

Human Rights First believes XXX would be the best option because  

4.  Non-U.S. citizen suspected al Qaeda member apprehended in the U.S. 

This case should be tried in U.S. criminal courts.  (U.S. federal courts have successfully prosecuted similar cases such as the perpetrators of the 1993 World Trade Center bombings).  There is active debate on whether or not this case could go to a military commissions.  If the person was apprehended in connection with the Sept. 11 attacks – or had planned attacks during this time – some would rely on Quirin (German saboteur case) to say a military commission has jurisdiction.  If the act in question took place before Sept. 11, a military commission would not have jurisdiction because there was no armed conflict.  

Human Rights First believes XXX would be the best option. 

5.  Non-U.S. citizen, suspected al Qaeda member who is apprehended in Europe. 

In this case, Europeans could try the individual in their own courts or extradite to an international  tribunal, U.S. criminal courts or the military commission. 

Human Rights First believes the international tribunal would be the best option since European governments are unlikely to extradite to courts that impose the death penalty (U.S. courts and the military commissions). 

6.  Non U.S. citizen living in the U.S. who provides assistance to an al Qaeda member.  

Assistance can range from renting a hotel room or loaning a car or money.  

Human Rights First believes XXX would be the best option.  

7.  Non U.S. citizen, al-Qaeda member in Afghanistan, proof that they are connected to Sept. 11 or committed a war crime.  (bin Laden)

This person could be prosecuted by an international tribunal, U.S. criminal court or a military commission. 

Human Rights First believes XXX would be the best option.  

Criminal Justice Alternatives to Military Commissionss

Human Rights First urges the Bush Administration consider the following criminal justice alternatives to military commissions: 

For suspects in the U.S. or extradited to the U.S. 

§         Suspects in or extradited to U.S. from Europe and elsewhere should be tried in U.S. courts.  In recent years, the U.S. federal courts have successfully prosecuted similar cases and obtained key information that has helped U.S. law enforcement efforts. 

For al Qaeda or Taliban suspects outside the U.S.

§         Build on an existing international criminal tribunal to try to try al Qaeda or Taliban suspects.  This option is best accomplished by expanding the International Criminal Tribunal for the Former Yugoslavia, which is now trying Slobodan Milosevic.  To do this, a trial chamber and prosecutor’s office would be established in the  Middle East or in South or Central Asia; this is what was done when the Rwanda Tribunal was established in Tanzania 

§         A fully autonomous international tribunal.  This would be a tribunal outside of the existing structure of the tribunal for the former Yugoslavia. 

§         A Lockerbie-type Tribunal.  The tribunal that tried suspects in the Pan Am 103 bombing over Lockerbie, Scotland was a Scottish court applying Scottish law while sitting in the ‘neutral third Country’ of the Netherlands.  

§         A Nuremberg-type Tribunal, similar to the one that tried Nazi leaders. This tribunal was a joint military tribunal of the four powers occupying Germany after the Second World War.  

§         A Special Chamber of a UN transitional administration in Afghanistan could be established to try Al Qaeda and Taliban crimes as part of the long-term effort to establish the rule of law in Afghanistan.