12 Dec MCA’s Paquete Habana Declaration?
One of the more interesting sidebar comments that occurred during the ASIL Interest Group meeting in San Diego yesterday came from Bill Dodge regarding the MCA. With his permission, I will post the gist of it.
If I understood him correctly, he essentially suggested that the ex post facto provision of the MCA included an interesting reference that appears to embrace the notion of customary international law norms as part of existing federal criminal law. Here is what Section 950p says:
(a) Purpose- The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.
(b) Effect- Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.
The statute then goes on to specify in Section 950v the following crimes, among others, as included in the list of the “existing laws” codified in the MCA: murder, pillaging, treachery, perfidy, terrorism, material support for terrorism, spying, and conspiracy.
At a minimum, the provisions in question are interesting examples of Congress exercising its constitutional power to define and punish offences against the law of nations, including one offence–conspiracy–that a plurality of the Supreme Court in Hamdan concluded was not part of international law.
But it is even more interesting if Section 950p goes further and says that for purposes of ex post facto law, customary international law is part of our law and the MCA simply codifies that law. Is this a “Paquete Habana declaration” that embraces the notion that customary international law is part of our law? If so, in what form did all of these crimes pre-exist in our law? Not all of them were codified. So were they federal common law? Is that what the MCA is saying in Section 950p? That the MCA is simply declarative of these existing customary international law crimes that were pre-existing in our federal system?
I guess I see it differently – the section really is doing three things. 1) It is putting forth elements of enumerated crimes in US internal law. 2) It is saying that these crimes existed before the enactment. 3) To the extent the crimes and elements defined differ from what was prior customary or treaty based international criminal law they are evidence of one state’s practice internally that may or may not be recognized on the international plane as part of the evolution of customary international law. To the extent these crimes track international criminal law that is of no moment. However, to the extent they depart in significant ways and weaken the requirements of international law by placing tighter definitions of certain types of crimes – they are a twisted last in time and very thinly veiled attempt to escape a customary or treaty based international criminal law obligation. I doubt our Supreme Court is capable of countering that in the US system but on the international plane, it is of no moment in a prosecution for example of US officials for violations of internatioanl law. Rather, it would be used as evidence by them of what the rule… Read more »
An enemy combatant is not subject to US law. If a foreign soldier lands on an undefended beach and steals a car, shoots a policeman, and blows up an oil storage tank, he cannot be tried for theft, assault, murder, or arson. However, if he shoots an unarmed civilian under circumstances where there was no military justification, then under 950v he can be charged with Murder of Protected Persons or Attacking Civilians. These are not charges brought under US law, because an enemy soldier is not obligated to follow US law. They are violations of the Laws of War, international law which every soldier must follow. Enemy combatants who violate the Laws of War can only be tried in military courts. “Customary international law” has always been the basis for military commissions or Court Martial of enemy soldiers, but this has nothing to do with civilian law, Federal law, or anything that can be argued in an Article III court. “Perfidy”, for example, would be a hard thing to charge in a civilian criminal court, but it has a meaning in military law.
“An enemy combatant is not subject to US law.” I am confused. The US can set up Military Commissions to try enemy combatants. Those commissions are created under US law. Enemy combatants are subject to THAT US law. Then there are the substantive crimes alleged against the enemy combatant – these may be codified as US definitions of laws of war. Those codifications are US law. The enemy combatants will be tried in those courts (military commissions, court martials or ordinary courts) for those crimes as determined by that US law. So it seems to me that the enemy combatant is subject to US law in that setting. Now, the US law codifications may depart from the international law versions of those laws of war as a matter of internal law but that does not reduce the US obligation under international law to try persons for violations of the laws of war that meet the international standard. So the US might set up kangaroo courts with dubious procedures and crimes (or perfect courts with excellent procedures and perfect crimes defined) that are valid as a matter of internal law but that may or not be coherent as a matter of… Read more »