The Non-Existent War Crime of “Murder in Violation of the Law of War”

by Kevin Jon Heller

I was hoping that the discussion last week would address not only who could be tried by a military commission, but also for what crimes someone could be tried.  That issue flared up again yesterday in the Hamdan trial, when the presiding military judged refused to instruct the jury that any attempt by an “unlawful enemy combatant” — a status that, as innumerable scholars have pointed out, does not exist under international humanitarian law — to kill a soldier is a war crime:

Prosecutors agreed to withdraw their objections to Allred’s jury instructions rather than risk a mistrial. But they sought clarification on the circumstances under which killing or trying to kill U.S. soldiers is considered a war crime since the issue will arise in other Guantanamo cases.

“We plan on charging at least 80 individuals down here,” said prosecutor Clayton Trivett.

The United States classifies Hamdan and the other 265 Guantanamo captives as “unlawful enemy combatants” who do not fight for a national army or wear uniforms or bear arms openly.

The conspiracy charge accuses Hamdan of agreeing with al Qaeda to commit murder in violation of the laws of war by transporting two surface-to-air missiles that were to be used against U.S. and allied forces in Afghanistan.

In order to find him guilty on that charge, the judge instructed jurors, they must find the missiles were intended for use against protected people — civilians not involved in hostilities, soldiers removed from combat by illness or capture, or religious or medical personnel.

The prosecution presented no evidence any such people were targeted. They argued the missiles were intended for use against U.S. forces, who had the only planes in the area.

The prosecution wanted the judge to revise the instructions and tell jurors that any attempt by an “unlawful enemy combatant” to kill a U.S. soldier in combat is a war crime.

The Defence said that was not the law of war in effect when the alleged acts occurred, and Congress could not retroactively change it in the 2006 law underpinning the Guantanamo trials.

There is no question that the military commissions have jurisdiction over the crime of “murder in violation of the law of war,” defined by the Manual for Military Commissions as “intentionally kill[ing] one or more persons, including lawful combatants, in violation of the law of war.”  That war crime only exists, however, in the imagination of the United States: it is not a war crime under IHL for a unprivileged belligerent — the correct label for the mythic “enemy combatant” — to kill a soldier.  Gabor Rona:

As for civilians who take up arms, participation in hostilities absent a privilege to do so is not, in itself a violation of the laws of war (war crime).  It is merely a disqualifier for PoW status.  A civilian who attacks an enemy combatant may be violating domestic criminal law (assault, murder, etc.) but does not thereby violate IHL… It is absolutely true that civilians who take part in hostilities are not protected in the sense of being immune from targeting.  Indeed, they may be targeted so long as they are taking direct part in hostilities. They do not, however, forfeit civilian status, although their mere participation in hostilities might be a crime under domestic law, or if, for example, they are targeting civilians, which is a war crime.

Under IHL, in other words, an unprivileged belligerent can only be prosecuted (1) for a domestic crime if his act would have been legal for a privileged belligerent, such as killing a soldier; or (2) for a war crime if his act would have been illegal even for a privileged belligerent, such as killing a civilian.  What he cannot be prosecuted for is (3) a “war crime” whose underlying act would not have been a war crime if committed by a privileged combatant.

The prosecution’s proposed jury instruction is, of course, an example of scenario (3).  I have no idea whether that instruction is permissible in the context of the military commissions, which generally reflect the US’s Alice-in-Wonderland approach to IHL.  But I do know that, under IHL as the rest of the world understands it, there is no war crime of “murder in violation of the law of war” if the victim is a combatant.

For a more general discussion of this and related issues, see our colleague Dave Glazier’s excellent article “A Self-Inflicted Wound: A Half-Dozen Years of Turmoil over the Guantanamo Military Commisions.”  It’s available on SSRN here.

NOTE: As Howard quite correctly points out in the comments, Hamdan certainly could be prosecuted in a domestic court for attempted murder.  The military commissions, however, only have jurisdiction over war crimes — which is why the US has created this new and non-existent crime.

http://opiniojuris.org/2008/08/05/the-non-existent-crime-of-murder-in-violation-of-the-law-of-war/

18 Responses

  1. The Hague Agreements and the Fourth Geneva Convention requires a military force when occupying territory to protect the civilian population not only from soldiers, but also from chaos and lawlessness. Article 64 requires the military to initially enforce existing local law, but it can be replaced with new regulations to protect the security of the occupation army provided that those new laws are publicized before they are applied.

    Unfortunately, IHL creates a set of impossible requirements. Laws must be enforce to prevent murder, rape, robbery, arson, and the like, and in the middle of combat the army doesn’t have an opportunity to draft and widely distribute new laws. Yet on occasion the existing local laws are unconscionable. Nazi laws in Germany could not reasonably be applied to Jews by the US military forces, and in Afghanistan Shari’a as previously practiced by the Taliban would require a military court to violate basic rights as we understand them (a woman’s testimony is treated as only half as good as a man’s, making rape prosecution almost impossible, and as we have seen in many countries the woman’s accusation then becomes a basis for stoning the woman to death).

    The only way that IHL actually works is if we posit that there are universal “common law” crimes like murder, rape, robbery, arson, etc. Local law may set a standard for the maximum punishment for robbery, but we don’t have to follow the Taliban laws exactly and cut off the robber’s right hand. Then the US military can enforce basic social order by trying universal crime in something approximating a universal tribunal.

    Murder is the most basic of crimes. There is, of course, no crime called “murder in violation of the laws of war”. Murder is murder. When a soldier kills a civilian it is murder and maybe you can also call it a “war crime”. When a civilian kills a soldier or another civilian then it is just murder and is definately not a “war crime” in anybody’s dictionary. The special case occurs when a soldier kills another soldier in combat, where combatant privilege applies and no crime can be charged. When someone without combatant privilege kills a soldier it is simple murder, but one might be more specific and say that it is murder by killing a soldier without combatant privilege. If that is what the US means by “murder in violation of the laws of war” then maybe they need some help writing up the charges clearly.

    A fundamental element of IHL is to distinguish privileged belligerents (defined by the Hague Agreements or GC III Article 4) from unprivileged persons. That distinction must mean something or else IHL is simple nonsense. Since the essence of privilege is that one soldier cannot be charged with murder for killing another in battle, then the essence of unprivileged status must be exposure to the criminal charge of murder for killing someone. Thus Hamdan and Khadr must either be privileged or they must be subject to some criminal charges for engaging in combat without privilege. The question is what the proper charge should be.

    The post correctly points out that the wording in these charges makes no sense. Hamdan may be found not guilty because the prosecution brought the wrong charges. However, it would be a mistake to then claim that Hamdan was innocent of any crime and could not have been prosecuted. If a civilian participates in combat by transporting weapons to a battle, then he is guilty of a crime. Whatever that crime is, it is not murder or attempted murder, and certainly not the nonsense crime of “murder in violation of the laws of war.”

  2. It seems to me that the US has in fact implicitly taken a position on the legality of hostile action by unprivileged combatants by its support for the mujahedin against the Soviet Union. If anything, the Taliban come closer to satisfying the requirements for being privileged combatants than the mujahedin ever did, yet the US saw no illegality in supporting the mujahedin.

  3. Howard, you say that “If a civilian participates in combat by transporting weapons to a battle, then he is guilty of a crime.”  

    A crime under what body of law?  A civilian who participates in delivering weapons probably loses the protection from being targeted, but I don’t know that it constitutes a crime under international law. I believe the U.S. armed forces employ civilians in similar logistical capacities, or at least don’t regard it as forbidden under international law.   

     In occupied territory, the occupier can no doubt make it illegal to transport weapons.  Otherwise, wouldn’t Afghan law in effect at the time apply?   

  4. Howard, I think you are maybe misunderstanding this somewhat.

    There isn’t any requirement for an occupier to operate the domestic legal system; the basic requirement is to permit the local laws to function normally to the extent that military requirements permit, and more to the point, to the extent that the occupier doesn’t suspend the normal operation of the laws by public decree.

    A second point here is that the US forces in France and Germany 1944-45 would have had similar difficulties trying to operate the continental systems employed in those nations. In practice, an occupation generally functions in cooperation with the local authorities within the constraints of the military situation. That was just as true of Nazi occupations as it was of allied occupations, and the major difference was that the Nazi occupation forces were actively engaged in committing war crimes against the local populations with the assistance (and varying degrees of cooperation, willing or not) of the local authorities — just as the Bush administration has for six and hal years now.

    Finally, I think a court martial under Title 10 has ample scope for local laws and customs to be given fair consideration where appropriate. For example, inappropriate conduct with respect to women… Under US military law, adultery and fraternization are offenses not because they are generally regarded as such in civil society, but because they are subversive of military discipline. I can’t imagine that anyone would argue imposing the general understanding of such things in US society on an Islamic society, even though there might be some areas where we might not be willing to accept all of the local practices… “honor killings” for instance, or the death penalty for adultery for another.

    It is complicated no doubt, but the complexities merely argue for diligence, and when you have a government of criminals like the Bush administration, that’s the only real problem you have — everything else is just a byproduct.

  5. If a crime cannot be fit to the defendant and thus no trial held, and considering the position of DoD spokesperson Geoff Morrell is that some will never be released regardless, then concern for meeting the elements of a crime seems like government pageantry. Of course, it is important to do things properly and not to forgo formality just because the result might be the same.  I support observation of the formalities of the process, although I propose that a philosophical evaluation through this lens reveals mockery of the process in select cases.

    Mr. Morrell’s quotation is excerpted below.

    Q     Do you have an approximate number for those who can’t be tried and also can’t be released?

    MR. MORRELL: No. . . . But I think, you know, there is still a significant population within Guantanamo who will likely never be released because of the threat they pose to the world, for that matter.”

    http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4270

  6. So we deport them back to Afghanistan to stand trial there?

  7. Jennifer raises a good point. I’m not aware of anything in the laws of war that prevents anyone from defending themselves against a military attack, and it’s very clear that civilians can engage in hostilities:

    “The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.” Hague IV 1907, annex, art. 2.

  8. RE Howard Gilbert: “Since the essence of privilege is that one soldier cannot be charged with murder for killing another in battle, then the essence of unprivileged status must be exposure to the criminal charge of murder for killing someone.”

    This does not necessarily follow, in regard to international criminal liability. Insurgents in non-international armed conflicts are unprivileged belligerents, and thus are subject to domestic criminal charges for their mere participation in the conflict (though APII art. 6(5) encourages amnesty). But such participation is not an international crime. For an unprivileged belligerent to kill a U.S. soldier in combat in Afghanistan falls within U.S. extraterritorial jurisdiction, and presumably constituted a domestic-law crime in 2001-02, so it can be tried in a regular U.S. court. Neither can be said, so far as I can see, for otherwise-lawful acts of war committed by unprivileged belligerents against our “co-belligerents.”

  9. The laws of war permit the targeting of combatants and forbid the targeting of civilians. For this to make sense at all, civilians are also forbidden to attack soldiers. It is irrational to argue that civilians who by definition are not privileged to engage in combat are somehow more privileged than combatants because they can engage in combat themselves (under the pretense of self defense) but they cannot be targeted militarily.

    Civilians who take up arms and form themselves into militia (Afghanistan, Concord, Lexington, Bunker Hill) can become privileged, but then they are no longer civilians and when captured they can be held for the duration of the conflict as POWs. Civilians who pretend to be non-combatants, but then engage in combat when your back is turned, are criminals.

    What is the crime? Well in a real war with a real army it is the offense charged against the Germans in Eisentrager. After Germany’s surrender, they became civilians not privileged to engage in combat. Yet they continued to provide “material support” to the Japanese commanders in occupied China. They were tried and convicted by a military commission, so this charge must be one of the charges normally tried by a military commission and therefore generally covered by the MCA.

    The problem here is that the US doesn’t recognize the Taliban and al Qaeda as a real army in a real war. So a civilian cannot be charged with unlawfully supporting enemy soldiers in combat (as were the Eisentrager group) when you do not recognize that there are any enemy soldiers or a real enemy army. Having thrown the Third Geneva Convention under the bus, the administration now had to do some fancy footwork to define new language for what would otherwise have been a well established offense.

    Military commissions do not simply try “war crimes”. Yes everyone concentrates on Nuremberg and the Japanese war criminals, but the Eisentrager guys weren’t “war criminals”. They were simply criminals tried by a military commission. Not everyone who violates the laws of war is a war criminal.

    There are three possible outcomes. The conviction can be upheld, in which case we accept that al Qaeda is a “terrorist organization” legally and not just in rhetoric. Higher courts could find that the enemy is a real army with real soldiers, then reverse the decision claiming that Hamdan should be retried under the Eisentrager charges instead of the “material support for a terrorist organization” charges. Or they might find that “material support for a terrorist organization” is not really a charge traditionally triable by a Military Commission and toss the case out entirely.

    The courts may find that the MCA was so badly worded that it created a set of “crimes” that are not chargable and omitted the traditional Military Commission charges that would have been chargable.

  10. Howard:  I agree with most of your 1:09 PM post, but with some qualifications.  First, as to your first paragraph: API in some respects establishes explicitly what you regard as irrational.  Of course, the U.S. is not bound by API as such, but the logic you invoke, while plausible, is not inexorable.

    Second, as to “Civilians who pretend to be non-combatants, but then engage in combat when your back is turned, are criminals”:  Depending on what you mean by “when your back is turned,” what you describe may constitute the international crime of perfidy, but the elements of that crime are not co-extensive with unprivileged belligerency.  I doubt that Khadr committed perfidy, and Hamdan almost surely did not.

    Third, I agree that “Military commissions do not simply try ‘war crimes’” and that “the Eisentrager guys weren’t ‘war criminals.’” The questions here are whether the MCA can and does confer jurisdiction on this particular military commission to try this particular crime.  The MCA cannot criminalize conduct retroactively, nor can it criminalize conduct outside the scope of U.S. jurisdiction to prescribe (e.g., Afghans engaging in combat against Afghans in Afghanistan).  The rest turns on the statutory language, as to the messiness of which we are in agreement.

  11. Just a small addendum to Kevin’s (and Brad Roth’s) excellent analysis: the differences between unprivileged belligerents (or civilians taking a direct part in hostilities) and war criminals have been explored long ago by Yoram Dinstein, one of the most eminent IHL experts out there (who is btw by any definition not your average bleeding heart, terrorist-loving liberal). See, e.g., here and here. Quite simply, unless it can be proven that the person in question committed a distinct war crime such as perfidy, the mere fact that he participated in hostilities without having the privilege to do so would not by itself constitute a war crime.

  12. We are finally approaching the real issue here in Brad’s last post.

    Although I am no apologist for the MCA, it is the law of the tribunal and the judge’s instruction was potentially erroneous. Fighting a war in civilian attire could constitute the war crime of perfidy if it results in the death, injury or capture of a combatant adversary (see AP I, art. 37(1) also incorporated almost verbatim as an MCA offense).  Whether he should have instructed on a conspiracy for that depends on the evidence introduced at trial.
    Kevin’s original assertion that killing a combatant adversary could never be a war crime is simply erroneous. The heart of the problem with the unlawful combatant designation – made clear by this charge and debate – is its incomplete overlap with the IHL definition of perfidy (particularly its specific intent requirements alluded to by Howard).  This creates the resulting confusion about whether acts of war against a combatant adversary by an unprivileged belligerent are ever a war crime.  The answer is, sometimes but not always (and certainly not never).  As is usually the case in the law, there are nuances for which IHL has attempted to account in various ways, such as the “carry[ing] arms openly” requirement of the levee en mass provision cited by Charles.

    The other problem raised here is that the IHL perfidy prohibition does not criminalize inchoate offenses.  Completed death, injury or capture is a required element of the perfidy offense (but note that capture – though illegal – may not constitute a “war crime” according to the ICRC in its recent IHL analysis).  This gets us back to the whole argument regarding whether conspiracy to commit a law of war violation is itself a law of war violation.

    I am currently drafting a journal article on this very issue.  I’d be happy to share it with any interested folks if you contact me with your email.

  13. John,

    What exactly is “simply erroneous” about my post?  I made it quite clear that an unprivileged combatant can be prosecuted (qua war crime) for any act that would have violated the laws of war even if he had be been privileged. My example (“such as”) was the prototypic war crime, killing a civilian, but obviously privileged belligerents are not entitled to act perfidiously either. So it’s clear I did not claim that killing a combatant could never be a war crime for an unprivileged belligerent.

    I am curious whether you are suggesting that simply fighting in civilian attire qualifies as perfidy — in which case all unprivileged belligerents who do not wear a uniform by definition are guilty of that crime.  If so, I think the claim is significantly overbroad.  But I’d be curious to see the argument.

  14. Kevin,

    This statement

    “But I do know that, under IHL as the rest of the world understands it, there is no war crime of “murder in violation of the law of war” if the victim is a combatant.”

    appeared to me to state something different.  If I misunderstood, I stand corrected.

    I would read “murder in violation of the law of war” as defined in the MCA and the MCA’s perfidy offense as overlapping – with the latter merely being a more specific example when it comes to a perfidious act resulting in death.  That they used the former as a catch-all for indiscriminate attacks, etc. merely makes it all the more confusing.

    On your second point, I am not suggesting that at all.  I’d be happy to discuss in detail off line or when the article is ready for collegial review.

  15. John,

    I don’t think we actually disagree at all.  I certainly didn’t mean to suggest — and apologize if I was sloppy with my writing — that there is no conceivable set of facts under which a detainee could be fairly prosecuted for “murder in violation of the law of war.”  I was simply (I thought) addressing the prosecution’s argument, as discussed in the article I quoted, that any killing of a US soldier by an unprivileged combatant is a war crime, even one that would have been perfectly legitimate for a privileged combatant (e.g., a non-perfidious one).

    I do wonder — you would know better than I — how many sets of facts that would qualify as “murder in violation of the law of war” by an unprivileged belligerent would not otherwise satisfy one of the other, less objectionable, war crimes within the jurisdiction of the military commissions. As you note, by way of example, the separate war crime of acting treacherously or perfidiously would cover many such sets of facts.

    I would love to read the article and discuss it.  Perfidy is fascinating and slippery!

  16. Kevin,

    As you have clarified your position, it sounds as if we do agree.  As reported in the article, neither prosecution nor defense articulated a complete understanding of the topic. 

    I have not looked at the issue you last mentioned.  I have worked quite a bit with the MCA in my published, to-be-published, and unpublished scholarship but not on that issue.  I’ll contact you for thoughts on the article.

    Marko,

    I do not believe Dinstein has yet seized upon the precise issue creating the confusion between perfidy, direct civilian participation in hostilities, and unprivileged belligerents.  I have not read the book you linked but I have read Dinstein’s jus in bello book very closely on this issue.  Indeed, IHL has tried so hard to reconcile the issues underlying this problem that it has become quite confused on the point.  The proof of that is this discussion and the various provisions of IHL that have been thrown out to convey one understanding or another of the consequences of putative civilians engaging in combat.  I hope to identify the “tipping point” in a way that will lead to new understanding and discussion of the issue.  Perhaps that aspiration is simply the product of hubris.

  17. Howard, that’s just silly.

  18. Interesting stuff….

    Omar Khadr is facing this charge, and in almost every news article about his case it’s written that he (is accused of having) “murdered a US soldier,” when the death of the soldier in question took place during a very intense, lengthy, and chaotic battle in which Khadr himself was seriously wounded and almost died.

    Khadr was a fifteen-year-old child soldier at the time, but, setting that atrocious fact aside, the crime of “murder in violation  of the law of war” is absolutely ridiculous on its own.

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