Selectively Ignoring International Law in Hamdan

by Roger Alford

I wanted to offer one final post on Hamdan. Robert Araujo at Mirror of Justice as this interesting post on Hamdan and the use of comparative and international law:

I am sure I join many others who are still working their ways through the Hamdan v. Rumsfeld decision. At this stage I would like to make a brief observation about two issues addressed by the Court in this case. While references are made by members of the Court to international law, particularly the Geneva Conventions of 1949, little is said about the present day international criminal tribunals. I believe one reference is made in the context of the ICTY (International Criminal Tribunal for the Former Yugoslavia) regarding “conspiracy.” While the Court took strong views about international law in Roper v. Simmons and Texas v. Lawrence, it was less bold in relying on international law, especially international criminal law, in the Hamdan case. I was surprised that the majority/plurality in particular did not make any reference to the Rome Statute of the International Criminal Court. While that Statute’s provisions still remain largely unexplored in actual case applications, we need to be mindful about the fact that the Rome Statute addresses “conspiracy-type” collaboration in discussing individual criminal responsibility in Article 25. Moreover, there are provisions within the Statute itself along with the accompanying Rules of Procedure and Evidence which just might allow in camera ex parte proceedings from which the defendant/accused is excluded. Again, it will take some time to clarify the meaning of these provisions of the Rome Statute and its Rules through case application and the development of the ICC’s jurisprudence. However, it would be premature at this time to say that the Military Commissions criticized by the Court in Hamdan are unlike the proceedings that could take place under the ICC. Perhaps Justice Scalia was on to something in his dissenting opinion in Roper when he criticized his colleagues for selective reliance on international law in Constitutional adjudication.

I am not sufficiently knowledgeable about the jurisprudence of the international criminal tribunals to know whether they have clearly spoken on the issue of conspiracy as a law of war violation. The Court in Hamdan at footnote 40 argued in passing that there was no such offense under ICTY jurisprudence. And David Scheffer has argued that joint criminal enterprise is recognized under the ICTY, but he contends that it is different from conspiracy. Unlike conspiracy, Scheffer maintains that joint criminal enterprise requires agreement and overt action under the ICTY precedents of Ojdanic and Vasiljevic. But even if that is true, it would appear that the counts against Hamdan do indeed allege four overt acts that Hamdan committed in furtherance of Al Qaeda’s joint criminal enterprise, including transporting weapons for Al Qaeda and serving as the bodyguard and driver for Bin Laden to lead Al Qaeda meetings. How is that not sufficient under Ojdanic and Vasiljevic? Why could the Court not have interpreted the conspiracy charge against Hamdan subject to this international law limitation that there be an alleged overt act in furtherance of the agreement? That is analogous to what the Court did in Hamdi in finding an implied limitation on presidential action based on law of war principles.

Moreover, even if the ICTY precedents are unavailing, what about the Rome Statute of the ICC? It would appear that Article 25(3) of the Rome Statute does indeed recognize criminal responsibility for conduct that constitutes conspiracy or something closely akin to that offense (i.e., joint criminal enterprise). It provides in relevant part:

“[A] person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; [or] (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime…

Can someone explain why the counts against Hamdan that specify concrete and overt action by Hamdan in concert with Bin Laden himself would not satisfy the requirements of Article 25(3) of the ICC statute?

As best I can tell, Araujo appears to be correct that Justices Stevens, Breyer, Ginsburg, and Souter selectively ignored a key component of international law jurisprudence that was contrary to their preferred outcome.

16 Responses

  1. I don’t know the answer to your question, but you might want to take a look at George Fletcher’s brief on this issue, esp. section IV, and the Danner/Martinez article cited therein.

  2. Roger,

    The Court in Hamdan is right to say that conspiracy as a separate, inchoate offense is not recognized by international law, except in the case of genocide (see Art. III(b) of the Genocide Convention.

    What you have in the Nuremberg trials, and now before the ICTY and the ICTR, is “common purpose” or “joint criminal enterprise” (JCE) liability, which the ICTY has now differentiated into three categories, and is not a crime by itself, but a mode of participation in a crime, like complicity or command responsibility.

    So, a person must be charged with a specific offense against the law of war or international criminal law, e.g. torture, a grave breach of the 1949 Geneva Conventions, or extermination, crime against humanity, and the theory of responsibility for that crime would be JCE. That is also the precise type of liability contemplated by Article 25(3) of the Rome Statute.

    Therefore, you would have to charge Hamdan with a specific crime, e.g. 9/11, and argue that he is co-responsible for that crime by virtue of JCE, as he was Bin Laden’s driver or something. Then you can see whether his participation in the JCE was indeed such to render him responsible. But the charge must be a substantive crime, such as torture or murder, not conspiracy.

    Other than that, you can simply charge and convict Hamdan of being a member of Al Qaeda (fine by me), but that is not a law of war offense, and he could therefore not be tried before a military court or commission.

  3. Surely, since the US is not a party to the Rome statute, it’s not bound by it.

  4. The US is certainly not bound by the Rome Statute. The US is bound, however, by customary international law. The doctrine of common purpose or joint criminal enterprise liability is a customary one, first used by the International Military Tribunal at Nuremberg, then by the ICTY, and now by the ICC. The crimes and modes of liability set out in the ICC Statute are (for the most part) not substantive in nature, i.e. they are not created by the treaty, but are jurisdictional in nature, i.e. they set out the specifics of crimes under customary law for which the ICC has jurisdiction. In that some (or most) of these provisions of the Rome Statute are reflections of customary law.

    But the point here is that the US is free to use this customary doctrine (or that of command responsibility) to prosecute people for violations of the law of war, but that there is no separate crime of conspiracy in the law of war.

  5. Not sure what Mr. Silanovic means by the statement that “the US is bound, however, by customary international law.” Not so “bound” that Congress can’t make conspiracy a war crime triable by military commissions, notwithstanding CIL. The important point for present purposes is that, as the Hamdan Court explained, the Executive branch is bound by the laws of armed conflict because they have been incorporated into statute (10 USC 821). That statute can be amended, but until it is, it matters whether “conspiracy” is a war crime under the LOAC. What if Congress were to enact a law declaring that, in its view — and contrary to the Stevens plurality — “conspiracy” is a violation of the laws of war? Would that judgment — about a question of customary law, not treaty interpretation — be entitled to substantial deference?

  6. Sorry for the typo — I meant “Mr. Milanovic.”

  7. P.S. I think — but am not certain — that if Congress now made “conspiracy” a war crime, retroactive application of that law to already-detained persons would raise serious ex post facto problems, in light of the JPS opinion that conspiracy was not previously a clearly established war crime.

  8. Marty,

    Well, if Congress decided to make conspiracy a war crime as a matter of US law, even though the customary law of war does not recognize such a crime, it can do so. I doubt there’s anything the Supreme Court could do, as international law would not prevail due to the “last in time” rule. But this holds true only if Congress creates a substantive new criminal offense. If it just says that it “interprets” international law as already containing such a crime, I don’t see why such an interpretation should be given any special deference (ditto as to the President). The international legal order is an objective one, which is congnizable by any reasonable person, through normal methods of legal interpretation. As far as I’m concerned, Congress would be entitled to much less deference than the various international criminal tribunals, who have substantial expertise in the field.

    If Congress does create a new offense of conspiracy as a war crime, the US would be in breach of its obligations under international human rights law, as it would be trying a person not guilty of a war crime before a military tribunal. For example, the European Court of Human Rights has ruled in a series of cases against Turkey that civilians (i.e. persons not charged with offenses under the international law of armed conflict) cannot be tried by state security courts, which had military judges sitting in them.

    Therefore the US would incur state responsibility under international law, most of all the International Covenant on Civil and Political Rights. Whether the law could be enforced against the US is a different matter.

  9. I assume that if Congress does make a move here, it will be to make conspiracy a crime triable by military commissions, not “merely” to interpret the LOAC. But even if it did only the latter, I think the Court would pay great deference to it, because of the Define and Punish Clause.

    Would a new conspiracy offense be a breach of international law? I’m not so sure. First of all, where in international law does it prohibit nations from recognizing certain war crimes that go beyond what CIL prohibits? Relatedly, the int’l law is customary, after all — and custom is established by parties moving in new directions. Finally, as you point out, there’d be no penalty. (BTW, the U.S. position is that the ICCPR does not apply to the armed conflict, on a lex specialis theory.)

    Which brings me back to what I think will be the two most interesting questions: How, if at all, will Congress define the crime of “conspiracy,” and, if it attempts to make that crime retroactive, will that be an Ex Post Facto violation?

  10. I am very grateful for the above discussion, having learned quite a bit from this and related posts over the last several days. However, it’s disturbing that ‘in a weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics,’ nary a word is devoted to a treatment of what is happening in the Gaza Strip. We hear nothing from international legal scholars about Israel’s deliberate dismantling of the Palestinians’ Hamas-led government, its systematic targeting of the region’s infrastructural facilities, and so forth and so on. Recall that this round of ugly events was precipitated by the Israeli shelling of a beach leading to the death of civilians. Why the silence? Surely international law is of some relevance here. Again, I mean to take nothing away from ongoing analyses of the Hamdan decision (indeed, in the big picture that includes our endeavor to understand the motivational psychology and socio-political conditions surrounding terrorism, these topics are related) but perhaps we can widen our horizons….

  11. Seamus, I agree that Hamdan may be a bit played out for now. But when you read a case carefully things percolate in your mind and you post them. As I said, I think this is my last post on Hamdan for the immediate future.

    And thanks to Marty and Marko for their comments. They are quite helpful.

    Roger Alford

  12. Seamus, I understand the comment regarding the situation in Gaza. My own hesitancy to take a stab at assessing the situation there from an IL perspective is that it’s something of a law-free zone, in the way the rest of the world used to be with respect to many use of force issues. Whatever IL might apply as a formal matter, it’s not going to make much of a difference.

    As for Hamdan, if it’s still playing out on the op-ed pages, it would seem like it’s still fair game for the blogs. At this point much of it may be of more interest to Washington-watchers and the foreign relations law people, rather than those whose focus is on IL.

    Peter Spiro

  13. Professor Alford,

    I absolutely agree that ‘when you read a case carefully things percolate in your mind’ and, as I said, intend to take nothing whatsoever away from the discussion. I’m the beneficiary of a wonderful, informal (and ‘free’) education here, and thus likewise believe their comments were ‘quite helpful.’

  14. Professor Spiro,

    A bit awkward perhaps, but I responded to your comment here at your own post above.

  15. I wanted to echo the above conclusions about conspiracy’s status in international law. Conspiracy is not a crime in international criminal law. Joint criminal enterprise is a derivative of complicity and is therefore merely a form of liability for other substantive crimes. Conspiracy as a freestanding crime has been specifically rejected by the negotiators of the Rome Statute and the judges of the ad hoc tribunals, with the exception of conspiracy to commit genocide. The U.S. War Crimes Act (implementing the Geneva Conventions), 18 U.S.C. s 2441, also makes no mention of conspiracy, although Congress could obviously amend the law here if it so desired.

    There is, however, a strong argument that conspiracy to commit crimes against peace (aggression) is a crime under CIL, based on the Nuremberg and Tokyo precedents. For those of you who are still interested in this issue, you can read the brief that I wrote with Jenny Martinez in the Hamdan case.

  16. There are three things which have not been sufficiently discussed however: the degree to which it is clear that conspiracy is not a chargeable offense under international criminal law (with the exception of crimes against peace, as noted); why it is not; and of course, why, therefore, if Congress now created a crime of conspiracy it could not be applied to any present detainees, and might not even be applied to future detainees.

    The degree to which is clear that conspiracy is not a crime under the LOAC matters. From the International Military Tribunal (the Charter did not define as a separate crime any conspiracy except the one to commit acts of aggressive war), to the Appeals court in Tadic, to the Ojdanic decisions on jurisdiction conspiracy has simply not been a crime in customary international criminal law. This is so clear the Supremes needed no more than make a passing reference to it. To a small extent this matters as a demonstration of the Administration’s idiotic approach to the military commissions. How could they not know or ignore this?!

    More greatly this matters because it demonstrates a lack of fidelity to the rule of law itself. Nullem crimen sine lege – no crime without law. If the crime was not a crime, or not a crime the defendant knew or should have known was a crime, basic rule of law principles dictate that the defendant cannot be charged with it. Here, not only could the defendant not have known it was a crime, it was in fact not a crime under the LOAC.

    Moreover, conspiracy was quite deliberately not made a crime (e.g. in the Rome Conference, in the civil law of many nations) because it was felt too many would be swept up in it… all the way down to, say, chauffeurs. How could so many be on notice that they could be found guilty of so many multitudinous crimes when they themselves had committed no illegal act? Hamdan might stand as a good reason why conspiracy should not be in the LOAC.

    Therefore, can someone explain to me how even if the Congress decides that conspiracy is a crime chargeable by the military commissions, and thus inapplicable outside the US? Wouldn’t nullem crimen sine lege STILL trip it up? It would be merely municipal law, not ICL nor a recognized LOAC, no? One that no international defendant could be expected to know about? If Congress does so, the US will stand as more of an outlier than it already is…

    Seems that Congress can go by the law fo the US, or ICL, but not mix and match with any legitimacy….

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