Archive for
October, 2006

Sic transit gloria mundi

by Cesare Romano

Unforgivable Curses, the Ministry of Magic, and Muggle Law

by Roger Alford

Military Commissions Declared Illegal…on Battlestar Galactica

by Chris Borgen

The MCA and Interpreting the Geneva Conventions

by Roger Alford

What the Right Thinks of Harvard’s New 1L Curriculum

by Peter Spiro

Noah Feldman on the Fear of an Islamic Nuke

by Chris Borgen

Did Israel Use Uranium-Based Weapons in Lebanon?

by Kevin Jon Heller

Fixing the ICJ: More Law Clerks is Not the Answer

by Julian Ku

Judge Orders Pinochet Arrested

by Kevin Jon Heller

WTO and Human Rights

by Cesare Romano

Crawford and Alvarez on Non-State Responsibility in International Law

by Duncan Hollis

Does U.S. Patent Law Extend Overseas?

by Julian Ku

Here Comes the Arms Trade Treaty

by Julian Ku

I’m Busy Blogging

by Roger Alford

Rwanda Investigates France’s Role in 1994 Genocide

by Julian Ku

Cheney Defends Waterboarding; KSM Wins “Admiration” of Torturers… And People Still Wonder Why the Geneva Conventions Are Necessary?

by Chris Borgen

US-Mexico Fence Could Be an Ecological Disaster

by Kevin Jon Heller

Vietnam Wins Invitation to Join the WTO

by Julian Ku

Balkin and Levinson on the National Surveillance State (Why Don’t I Feel Like I’m In It?)

by Peter Spiro

The WTO… Maybe.

by Kevin Jon Heller

Coolest lingo

by Cesare Romano

Comparative References in the New Jersey Same-Sex Civil Union Case

by Roger Alford

New Essay on SSRN

by Kevin Jon Heller

IAVA Grades Congress on Supporting Our Troops (Updated)

by Kevin Jon Heller

The U.S. Congressional Elections and the United Nations

by Julian Ku

Irrationality

by Cesare Romano

Prediction Markets on GOP Control of Congress

by Roger Alford

Stray From The Course

by Roger Alford

Happy United Nations Day!

by Julian Ku

International Law Workshop Series: Fall 2006 Roundup

by Peter Spiro

The Political Ad I’d Like to See

by Kevin Jon Heller

The U.N.’s Pointless Special Rapporteur on Palestine

by Julian Ku

When Diplomats Blog

by Roger Alford

Israel Admits Using White Phosphorus Against Hezbollah

by Kevin Jon Heller

HRW Documents Hezbollah’s Use of Cluster Munitions

by Kevin Jon Heller

Authoritarians versus the Internet: Two More Examples

by Chris Borgen

Misnomers

by Cesare Romano

The Washington Post Discusses Posada Carriles

by Kevin Jon Heller

Can Japan Search North Korean Ships on the High Seas?

by Julian Ku

A call from the bottom

by Cesare Romano

The Cold War isn’t over yet

by Cesare Romano

Defining a Foreign Terrorist Organization

by Roger Alford

Cassel on the War Against Defense Attorneys

by Kevin Jon Heller

The EU’s International Legal Personality

by Duncan Hollis

Military Commissions Act: The Sky Is (Probably) Not Falling

by Peter Spiro

How to Lobby the U.N. General Assembly: A Case Study

by Julian Ku

Iraq and the Defense of Political Necessity (Updated)

by Kevin Jon Heller

The seasons of international law

by Cesare Romano

Whatever It Takes: CIA Lies, Prosecutorial Abuse, and (In)Justice

by Chris Borgen

Defining the Customary International Law of Outer Space

by Julian Ku

Mexico May Take Border Fence to UN

by Peter Spiro

Treaty Interpretation 101

by Roger Alford

Shallow International Law Can’t Protect the Deep Sea

by Cesare Romano

Should Lynne Stewart Have Been Convicted?

by Kevin Jon Heller

Venezuela and Guatemala in Cage Fight! Who Will Get the Security Council Seat?

by Chris Borgen

Interview With ASIL Executive Director Betsy Andersen

by Roger Alford

Opinio Juris Welcomes Guest Blogger Cesare Romano

by Peter Spiro

Did the Security Council Authorize the U.S. to Blockade North Korea?

by Julian Ku

Law Blogs That Have Juice

by Roger Alford

Microfinance Pioneer Wins Nobel Peace Prize

by Christopher Le Mon

Rwanda’s “Michael Jackson” on Trial for Genocide

by Christopher Le Mon

Hamdan and the Lessons of History

by Duncan Hollis

Research Canons, “Must Reads,” etc.

by Chris Borgen

“Unacknowledged Legislators” Redux: Orhan Pamuk Gets Nobel and Avoids Jail

by Chris Borgen

Human Rights Council Off To Rocky Start

by Peter Spiro

House of Lords Adopts New Libel Standard

by Roger Alford

All Yoo All the Time (The Book)

by Peter Spiro

International Law Professors and Foreign Language Proficiency

by Roger Alford

International Law Research Canons

by Duncan Hollis

What Is “International Economic Law”?

by Peter Spiro

Letter from Iraq

by Roger Alford

Hamdan’s Lawyer Forced Out of the Navy

by Kevin Jon Heller

Did North Korea’s Nuclear Test Violate International Law?

by Christopher Le Mon

Judicial Review of Geneva Convention Claims: Commentary on the Military Commissions Act by David Sloss

by Peggy McGuinness

Schoolyard Terrorism: People v. Campbell

by Roger Alford

North Korean Nuclear Weapons Test Reported

by Christopher Le Mon

International Issues and the Mid-Term Elections

by Roger Alford

Building a Religious Constituency for International Law

by Peter Spiro

Harvard 1L Curriculum to Include International Law

by Peter Spiro

Medellin, Norm Portals, and the Horizontal Integration of International Human Rights

by Peggy McGuinness

Interdisciplinarity and IL Scholarship

by Peter Spiro

Guantanamo Teach-In

by Duncan Hollis

President Bush: Global Fisheries Conservationist

by Julian Ku

Supreme Court Same-Day Transcripts

by Roger Alford

The Supreme Court Docket

by Roger Alford

Is There a Limit to the Crimes Subject to the Jurisdiction of the Military Commission?

by Geoffrey Corn

[Opinio Juris note: Geoffrey Corn, a former Opinio Juris guest blogger who is a military law expert teaching at South Texas Law School, has sent along the following thoughts on the Military Commission Act.]

It is by now apparent to most interested observers (and probably quite a few not so interested observers) that the Military Commission Act of 2006 has triggered a barrage of commentary and criticism. The initial focus on the amendments to the War Crimes Act has now shifted to expressions of dismay over the broad definition of “unlawful enemy combatant.”

In response to a request by the Asser Institute of International Humanitarian Law in the Netherlands, I provided some initial thoughts on the originally released “compromise” Bill (available here). In this commentary, I provided my assessment of the amendment to the War Crimes Act, to include my thoughts on how the amendment apparently transformed offenses in violation of common article 3 into specific intent crimes, which I consider a subtle but potentially profound modification. I then attempted to highlight what I considered the improvements to the Commission process resulting from analogy to the courts-martial system, and also what I considered unresolved deficiencies in that process.

One aspect of the MCA that I have been thinking of recently is the scope of the jurisdiction granted to the Military Commissions. According to the statute:

“A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.”


This jurisdiction obviously expressly expands the jurisdiction of the Military Commission beyond offenses in violation of the laws of war. This is probably a response to the pre-Hamdan defense assertions that many of the prosecution allegations failed to allege violations of the laws of war applicable to their clients. It seems that Congress has answered this challenge by simply granting the Commission statutory jurisdiction over theses offenses. But I think this raises two very significant questions.

First, can Congress validly grant jurisdiction to the Military Commission for any non-law of war violation? Article 21 of the UCMJ certainly suggests that a Military Commission may exercise jurisdiction over offenses defined by either the laws of war or by statute when it says “The provisions of this chapter conferring jurisdiction upon courts- martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions . . .” However, it seems to me that this “by statute” clause of Article 21 must be narrowly construed to refer to non-law of war violations historically subject to such military jurisdiction. I am specifically referring to espionage and related wartime crimes associated with armed conflict that are not considered violations of the laws of war but nonetheless historically subject to prosecution by military courts.

This limited extension of military commission jurisdiction is actually reflected in the punitive articles of the UCMJ. Most of the offenses defined by the Code are not subject to trial by military commission, but only by courts-martial (which means only individuals subject to the Code at the time of violation may be charged with such offenses, a category that does not include pre-capture enemy personnel). The only two offenses that are expressly made subject to trial by military commission in addition to courts-martial are “spying” and “aiding the enemy”, both of which are historically subject to military jurisdiction even though they are not considered violations of the laws of war.

Article 18 of the UCMJ also bolsters this limited extension of military commission jurisdiction. Article 18 establishes the jurisdiction of the general courts-martial. This grant of jurisdiction includes two categories. First, only individuals subject to the UCMJ may be tried by general courts-martial for violating the prohibitions of the code established by the punitive articles. Second, any “person who by the law of war is subject to trial by a military tribunal” may be tried by general courts-martial. This seems to reflect the principle that although the jurisdiction of this military court does extend beyond individuals subjected the punitive articles of the UCMJ, the extension is limited to offenses in violation of the laws of war.

Congress does not seem to have perceived any limit to the range of non-law of war offenses that may be subjected to trial by military commission. Considering the military commissions are creatures of the laws and customs of war, or as some commentators have labeled them, “war courts”, I have a hard time reconciling this view of jurisdiction. I do not dispute that some offenses may be subjected to trial by military commission by statute, but I think this is a limited category of customarily accepted “battlefield” crimes that are not prohibited by the law of war for the simple reason that every nation authorizes them – like espionage. Crimes such as terrorism, hijacking, providing material support to terrorism, perjury, and conspiracy don’t seem to me to fall into this category. Nonetheless, they are now by statute subject to trial by the Military Commission. If these offenses are not derived from the laws of war, what special competence does a Military Commission have to adjudicate such crimes? In my mind, none, which leads me to conclude that granting the Commission jurisdiction over such offenses is just easier than trying them in an Article III court.

The other aspect of this expansion in jurisdiction that I find troubling is that it seems to violate the nulle crimen principle. Even if Congress can subject such offenses to trial by military commission, they were not subject to this jurisdiction before now. Nonetheless, the statute indicates that any person who violated these provisions “before, on, or after September 11, 2001” is subject to trial by Military Commission. Again, I have no problem with the government alleging an individual committed a violation of the laws of war and subjecting such an offender to the jurisdiction of a military commission. So long as the government alleges and proves the requisite jurisdictional predicate – that the law of war applied to the individual and proscribed the alleged misconduct at that time – there is no ex post application of law. However, this is far different from Congress defining a list of offenses not derived from the laws of war, and then establishing retroactive jurisdiction over these offenses by simply placing them under the umbrella of the jurisdiction of a “war court.”

Can the President Exercise “Unreviewable Statutory Authority”?

by Julian Ku

Secretary-General Ban Ki-Moon

by Christopher Le Mon

Case of the Month: Commission v. Netherlands

by Roger Alford

Bush Waives Article 98 Sanctions

by Kevin Jon Heller

“We Apologize For the Inconvenience”

by Roger Alford

Rwanda’s Troubled Gacaca Courts

by Christopher Le Mon

Dumping on the Ivory Coast

by Duncan Hollis

Opinio Juris Welcomes Guest Blogger Christopher Le Mon

by Peggy McGuinness

Report from the Blue-Ribbon Princeton Project

by Peter Spiro

Surprising Poll Numbers on American Attitudes Toward the UN

by Peter Spiro