On September 11, 2001, the world watched in horror as planes crashed into the World Trade Center, the Pentagon, and a Pennsylvania field, killing nearly 3,000 people. It was an attack not just on American soil, but on the very fabric of international peace and security. The magnitude of 9/11 called for a swift and forceful response, and the U.S. delivered—launching the War on Terror, invading Afghanistan, and eventually Iraq. However, questions about the legality of these actions arose. The legacy of Guantánamo Bay, extraordinary renditions, and indefinite detentions has left an indelible mark on the global fight against terrorism.

Two decades later, another horrific event has sparked the world’s attention: Russia’s full-scale invasion of Ukraine in February 2022. But this time, the international community is charting a different course. Rather than bypassing international law, Ukraine is actively working to establish a high war crimes court to prosecute the atrocities committed in its territory. This pursuit of accountability, while the conflict is still raging, marks a significant evolution in the global approach to justice. It proves that we are progressing in our search for international accountability, contrasting sharply with the path taken in the aftermath of 9/11.

If you are a current student interested in international humanitarian law and human rights accountability, please come join us at the Holocaust and Human Rights Project. We will be hosting a lunch talk with Professor Omar Dajani to discuss the Israel-Palestine conflict. Additionally, we will be co-hosting (with the International Law Society) the former U.S. Ambassador to Russia in November.

The U.S. Response to 9/11: A Legal and Ethical Quandary

In the wake of 9/11, the U.S. declared a “War on Terror,” which led to military interventions, most notably in Afghanistan and Iraq, as well as a host of controversial legal and military measures. Central to this response was the detention and prosecution of suspected terrorists at Guantánamo Bay, Cuba, where suspects like Khalid Sheikh Mohammed, the alleged mastermind behind the attacks, were held.

The U.S. created military commissions to try these detainees, bypassing traditional civilian courts. However, these commissions were criticized for their lack of transparency, due process, and adherence to international legal standards. Suspects were often denied access to legal representation, and evidence obtained through torture (euphemistically referred to as “enhanced interrogation techniques”) was frequently used.

Additionally, extraordinary rendition programs, in which suspects were secretly transferred to third countries where they faced torture, raised further human rights concerns. The use of indefinite detention without trial in Guantánamo compounded these issues, tarnishing the U.S.’s image as a champion of justice and human rights. As of 2024, many of the high-profile detainees from the 9/11 era still have not faced full trials, leaving the sense that justice remains incomplete.

Ukraine’s War Crimes Court: A Step Toward Global Accountability

In contrast, Ukraine’s response to the atrocities committed during Russia’s invasion represents a more measured, law-abiding, and collaborative approach. As Russian forces ravaged cities like Bucha, Mariupol, and Kherson, reports of indiscriminate killings, torture, and targeting of civilians poured in. Ukraine, supported by international allies, began meticulously documenting these war crimes in real-time, ensuring that evidence would be preserved for future prosecutions.

By mid-2024, Ukraine had recorded over 128,000 war-related offenses, including unlawful killings of civilians and combatants​ (OHCHR). But instead of resorting to extrajudicial measures or shortcuts, Ukraine is preparing to prosecute these crimes through a high war crimes court, consistent with international norms. According to the Ukrainian High War Crimes Court Draft Law, the focus will be on prosecuting the “persons most responsible,” including high-level and mid-level perpetrators. ¹

International partners, including the UN, have helped contribute to Ukraine’s real-time investigations as a model for accountability. The UN Special Rapporteur praised the resilience of Ukraine’s investigators and the thoroughness with which they are building cases against Russian perpetrators, despite the ongoing conflict ​(OHCHR). The U.S, with its European counterparts, has contributed war crimes experts and forensic analysts to engage in on-the-ground documentation, investigation, and prosecution of grave international crimes. This contrasts sharply with the delays, controversies, and secrecy that have plagued the Guantánamo Bay proceedings.

Lessons Learned: The Evolution of International Justice

The creation of Ukraine’s war crimes court offers a hopeful path forward in the pursuit of international accountability. Unlike the U.S. response to 9/11, which prioritized immediate action over adherence to international legal norms, Ukraine’s approach underscores the importance of transparency, due process, and international collaboration. By building a court rooted in established legal frameworks, Ukraine ensures that justice will not only be served but also seen as legitimate in the eyes of the world.  The contrast between these two responses reveals how far we’ve come in our understanding of justice in the face of atrocities. In 2001, the shock of terrorism led to a swift, aggressive response that sometimes skirted the edges of legality. But in 2022 and beyond, Ukraine’s pursuit of a high war crimes court shows that justice can be pursued even in the midst of war, with respect for international law and human rights.

Conclusion: Progressing Toward Justice

The lessons from 9/11 and Ukraine highlight the evolution in how the international community responds to large-scale atrocities. While the U.S.’s response to 9/11 was marked by a willingness to bypass legal norms in the name of security, Ukraine’s approach demonstrates that even during conflict, it is possible to uphold the rule of law. As Ukraine moves toward establishing its war crimes court, it represents a beacon of hope in the long-standing quest for justice and accountability on the global stage.

In many ways, the world’s support for Ukraine’s efforts represents an acknowledgment that justice is not just about punishing wrongdoers but about doing so in a way that strengthens the fabric of international law and cooperation. As we look back on the past two decades, it is clear that our pursuit of justice is evolving—and Ukraine’s war crimes court stands as a testament to that progress.

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¹ For a more detailed analysis of the Ukraine High War Crimes Draft Law and the evolution of the term “Persons Most Responsible,” see: https://ielrblog.com/index.php/2022/12/14/proposal-for-a-ukrainian-high-war-crimes-court-and-the-prosecution-of-persons-most-responsible/.

Alex Mostaghimi is a second-year student at BC Law. Contact him at mostagha@bc.edu.