Selectively Ignoring International Law in Hamdan
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.