The Fight Against Terrorism and the ICC

December 10, 2009

On December 10, 2009, AGI hosted a lecture by DAAD/AGI Fellow Kirstin Janssen-Holldiek. Her presentation focused on the cooperation between Germany and the United States on the fight against terrorism in the aftermath of 9/11 as well as with regard to the International Criminal Court.

The fight against terrorism and the International Criminal Court share common ground when it comes to purposes and challenges. Both aim to bring perpetrators of heinous crimes to justice, to defend human rights, and to prevent future crimes. The challenges that they have in common are based on the fact that both topics have a high priority on the national security and human rights agendas, and both fields still experience difficulties successfully accomplishing their goals. This is obvious in the case of Osama bin Laden or the current president of Sudan, Omar Hassan Ahmad al-Bashir. Moreover, as the ICC can try terrorists who committed crimes against humanity, the court could be an important instrument in the fight against terrorism.

From the beginning, the Bush administration pursued its anti-terrorism policies under the war paradigm, whereas in Germany legislative reactions to 9/11 have treated terrorism as a crime. Ms. Janssen-Holldiek explored the implications of the war paradigm, mentioning that this leads to presumably less control from the legislative and the judicial branches, the detention of enemies until the end of the war and the use of military commissions as a means of waging a successful war. With the executive order on 22 January 2009, President Barack Obama established several task forces to review U.S. detention policy; so far, the administration has decided to use federal courts and military commissions to try detainees from Guantanamo. However, the detention policy regarding future terrorism suspects, including prolonged detention authority, remains unclear.

Ms. Janssen-Holldiek outlined the cooperation between Germany and the United States on the fight against terrorism, which consists of – among others – bilateral intelligence sharing (as happened in the case of the so-called “Sauerland Cell”) and on recently agreed common procedures on extradition and mutual assistance within EU-U.S. relations. In examining the situation in Afghanistan, views of the United States and Germany differ; however, they have also the potential to complement each other. As Germany does not detain persons in Afghanistan but rather transfers them to Afghan authorities, it could play a larger role in assisting the Afghan authorities in strengthening the law enforcement structures and the legal system in Afghanistan. As it detains combatants under the law of war, the U.S. could adopt an agreement with the Afghan government that formalizes U.S. detention authority.

With regard to the cooperation on the International Criminal Court, Ms. Janssen-Holldiek stressed that the effectiveness of the court depends on the cooperation of the states. In this regard, having the United States use its military presence and technical capabilities in assisting the ICC would be welcomed. Germany, being a party to the ICC, works on assisting states in implementing the Rome Statute of the International Criminal Court so that they can prosecute those crimes under national laws. Another possibility for German and American cooperation on the International Criminal Court could take place vis-à-vis their specific interest in the crime of aggression.

Ms. Janssen-Holldiek pointed out the interrelation between the fight against terrorism and the International Criminal Court. She stated that a lack of credibility in one policy might potentially lead to a lack of power in implementing the other policy. Against this background, Ms. Janssen-Holldiek argued that success regarding each of these issues can only be achieved if a positive policy is pursued in both fields. Moreover, both sides of the Atlantic need to work together to be effective. With regard to Germany, Ms. Janssen-Holldiek emphasized that more engagement in the fight against terrorism is needed whereas the United States could take steps to increase engagement with the International Criminal Court.