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