Justice in Times of Violence

Abstract

The question of who should judge the terrorists is an intriguing one This article seeks to understand why this is so by putting it into historical perspective. International law has a long history of dealing with terrorism, but was seemingly caught unprepared by the kind of nihilistic destructiveness implied by September 11. The challenge of ‘hyperterrorism’ can be seen as provoking a reorganization of the field. On the one hand, a brief cosmopolitan revival may be witnessed as several authors have urged the trial of major terrorists before an international criminal court. The argument, however, is unlikely to convince many and probably has more to do with liberalism's need to revitalize its programmatic promise in times that seem to profoundly challenge its globalizing logic. On the other hand is the notion, implemented in the United States, that terrorists should be judged by military commissions. This idea betrays a regression of international law and can only be properly understood if viewed in the larger context of a crisis of judicial liberalism. One intriguing element, however, is the way in which, beyond all the fuss generated by the international criminal court/military commissions debate, a great deal of what is wrong with the way that suspected terrorists have been dealt with has assumed decidedly more insidious forms.