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Print This PageDodging Hamdan: Does Conspiracy Violate the Law of War?
Ariel Lavinbuk, a 3L at Yale Law, has an interesting proposal on how the Supreme Court should resolve the upcoming Hamdan v. Rumsfeld case. He argues in Slate that the Court should avoid all the hard issues as to legality of military commissions under the Constitution and international treaties. Rather, they should simply hold that even if the commissions are legal, they cannot try Hamdan on charges of “conspiracy” because conspiracy is not an accepted violation of the law of war.
This is a very interesting argument, one that Ariel laid out for me at much greater length during the recent Yale Law symposium on executive power. I don’t have any views (yet) on the question of whether conspiracy is a violation of the law of war, but I wonder if it makes sense for the Court to resolve this tricky interpretive issue first. Traditionally, courts must determine first whether they have jurisdiction to hear the case before they can resolve any other substantive questions. That seems to weigh in favor of resolving at least the question of whether the Detainee Treatment Act bars Hamdan’s current claim.
Moreover, the question of whether or not the law of war includes conspiracy is something that Hamdan can raise before the military commission. Moreover, it is precisely the kind of claim that the Court might want the military commission to resolve first, since it is a pure legal argument that is not fact-dependent. Why wouldn’t they just remand this case to the military commission to resolve that question? Wouldn’t that be the prudent judicial thing to do?
But this is a great argument and one that Ariel deserves a lot of credit for raising. It will be interesting to see whether it comes up tomorrow during oral argument.
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http://opiniojuris.org/2006/03/27/dodging-hamdan-does-conspiracy-violate-the-law-of-war/
6 Responses
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If Hamdan were going before some sort of INTERNATIONAL war crimes tribunal then conspiracy may not be a crime. Hamdan is appearing before an American War Crimes Tribunal in which, according to FM 27-10 conspiracy is clearly cited as a violation of the law of war. International law doesn’t have anything to do with the GTMO detainees in so far as what crimes they may or may not be charged with. The President and by implication when they passed the DTA, Congress say what they can or cannot be charged with.
at 6:52 pm EST Dale Cox
Many thanks to Julian for his thoughts on my argument. The conspiracy issue was raised in front of the commission but, frankly, I can’t remember if there was a ruling on it before Judge Robertson closed the process down. [I’m pretty sure the answer is no]. The issue of conspiracy has been raised throughout – its in both parties’ briefs – but the lower courts didn’t address it directly.
As to Dale, the court made clear in Ex Parte Quirin that the “law of war” is based on the law of nations, not some common law specific to America. Quirin, 317 U.S. 1, 28.
That noted, the power to define offenses against the Law of Nations lies with Congress, according to the explicit text of the Constitution. The Army Field Manual 27-10 that Dale cites is not such an act of Congress.
As the Manual itself makes clear in § 1.1, “[t]his Manual is an official publication of the United States Army, … and those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party [like 27-10] should not be considered binding upon courts and tribunals applying the law of war.”
Hamdan’s situation would be very different if Congress – or a treaty – defined conspiracy as a violation of the law of war. But that is not the case here, where the Executive is asserting that Hamdan has committed a crime that the Executive itself has defined based on the practice of one nation alone, i.e., the U.S.. And it is this situation which is particularly troubling.
at 7:21 pm EST Ariel Lavinbuk
Ariel,
I found your article in Slate very intriguing. I am curious about one thing, though. You say that “[t]he war crimes tribunals at both Nuremberg and Tokyo largely rejected conspiracy as a substantive crime,” but that doesn’t seem to me to be true. Here is Article 6 of the IMT Charter:
Article 6 thus seems to contemplate conspiracy to commit any war crime or crime against humanity as a substantive crime. How does your argument distinguish Article 6?
Kevin
at 8:33 pm EST Kevin Jon Heller
I agree with Ariel Lavinbuk that conspiracy is not a crime under international law. With regard to Kevin Jon Heller’s point, the IMT interpreted Article 6 of its Charter as only criminalising conspiracies to wage aggressive war. The Nuremberg judgment stated that:
‘Count One … charges not only the conspiracy to commit aggressive war, but also to commit war crimes and crimes against humanity. But the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war. Article 6 of the Charter provides:
‘”Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
‘In the opinion of the Tribunal these words do not add a new and separate crime to those already listed. The words are designed to establish the responsibility of persons participating in a common plan. The Tribunal will therefore disregard the charges in Count One that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate and wage aggressive war.’
It might be thought, however, that the Charter conflates the ideas of conspiracy as a substantive offence and as a mode of liability. In the second sense, one might question the extent to which in practice it differs that much from joint criminal enterprise as developed by the ICTY or common purpose liability as set out in article 25(3)(d) of the Rome Statute. Conspiracy is, of course, an inchoate crime, but the bar is set very low in JCE/common purpose with regard to the accused’s actus reus.
at 7:48 am EST Matthew Happold
Ariel,
very interesting article and argument. Two questions:
- First, wouldn’t the decision you are proposing only be a consolation prize for an “Anti-Gitmo-lawyer”, given the host of constitutional and international law questions the case raises? Or is this a case of a bird in the hand?
- Second, another question regarding the punishability of conspiracy in international law: What do you make of concepts such as “joint criminal enterprise” in the jurisprudence of the ad hoc tribunals, which, one might argue, come rather close to the concept of conspiracy?
Bjoern
at 8:01 am EST Bjoern Elberling
Thanks to Matthew for making my second point very clearly while I was still typing
at 8:03 am EST Bjoern Elberling