Just moments after the September 11 attacks President George W. Bush firmly held the view, as we can read in his memoirs Decision Points, that these attacks were to be seen as “a declaration of war” against the United States. The former president also described his own opinion, which was shared by many citizens of the US, namely: “We were going to find out who did this, and kick their ass.”

by Geert Jan Knoops
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  War and revenge were thus the cornerstones of the political, military and legal policy of the US in the post-9/11 era. Cornerstones which constituted the advent of a new world order and the invention of a new phenomenon in international law: the Global War on Terror (GWOT). Consequently, several fundamental principles of international (criminal) law were changed dramatically in the wake of 9/11.

First and foremost, the USA PATRIOT Act, signed into law on 26 October 2001, considerably restricted civil liberty rights in the US. The Patriot Act introduced extensive powers for US law enforcement officials, in particular the ability to investigate communications and financial records, in relation to both international and domestic terrorism.

Birth of the War on Terror
  With regard to the impact of 9/11 on principles of international law, the most fundamental effect related to the very nature of the laws of war. Prior to 9/11, wars were fought between States, and not between a State and a group of individuals. But after 9/11, in accordance with UN Security Council Resolutions 1368 and 1373, it became possible to wage a war against an organisation such as Al Qaeda, authorising “all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism.” Hence, the Global War on Terror was born. This GWOT introduced a new concept of war, in that the whole world was perceived by the US as a battlefield. The concept endowed States with a carte blanche to invade other states that potentially harbor terrorists.

Indefinite hostilities
A third consequence of the GWOT concerns the treatment of prisoners, i.e. suspects of terrorism. Under the law enforcement model, applicable when there are no active hostilities, prisoners have certain legal rights, such as fair and proper extradition proceedings. However, under the law of war model, applicable during active hostilities, traditional law enforcement rules are abandoned. For instance, prisoners can be held captive for as long as there are active hostilities, which in the case of the GWOT might be indefinite! In the case of Hamdi v. Rumsfeld (2004), the US Supreme Court ruled that US citizens cannot be held indefinitely without a chance to appeal their status as an enemy combatant to a court of law. However, this only pertains to US citizens and not to foreign enemy combatants.

The torture memos
A fourth implication of 9/11 and the GWOT concerned the legitimacy of torture as a means of procuring information that might be vital to national security and the fight against terrorism. During the Bush administration, several methods dubbed enhanced interrogation techniques, such as waterboarding, were used on prisoners being held at Guantanamo Bay. Legal advisors to the Bush administration reviewed the legality of these proceedings, and found them to be in accordance with international laws and the laws of the US. These reports, known as the torture memos (2002), have stirred up considerable controversy. A US Senate Commission subsequently ruled in 2009 that these methods were indeed torture and thus illegal Nonetheless, none of the individuals who approved these methods, including Donald Rumsfeld, Dick Cheney, George W. Bush and the White House legal advisors, were prosecuted for torture. In fact, they were de facto pardoned by President Obama, or granted immunity in the case of the CIA agents responsible for applying these methods.

A legal catastrophe
Finally, 9/11 and the GWOT have fuelled the use by governments of so called ‘extrajudicial killings’. During the presidency of Barack Obama, the number of attacks carried out by unmanned drones on potential terrorists in Pakistan and Afghanistan has risen exponentially; attacks which almost certainly also resulted in the deaths of innocent citizens. One notable example of such extrajudicial killings was the elimination of Osama Bin Laden on 2 May 2011. Bin Laden was most likely unarmed but was nevertheless executed instead of being captured and tried before a court of law. In my upcoming book “Amerika versus Bin Laden” (November 2011 – in Dutch) I will attempt to show by means of a virtual court case against Bin Laden why he was denied such a trial; politically, there was no support in Bin Laden’s case for the rule of law.

These are just a few examples of the impact that the 9/11 attacks have had on the legal world. 9/11 therefore symbolises not only a human catastrophe but also a ‘legal catastrophe’, which still overshadows international law.

Geert-Jan Alexander Knoops
Professor of International Criminal Law, Utrecht University
International defense lawyer, Knoops & Partners Lawyers