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

by Kevin Jon Heller

A couple of years ago, I blogged about how Salim Hamdan was prosecuted in a military commission for conspiring to commit the non-existent war crime “murder in violation of the law of war.”  Hamdan was acquitted on that count, but the crime is starring again in the unconscionable prosecution of child-soldier Omar Khadr.  That’s unfortunate in itself — but what is particularly unfortunate is that, according to the Vancouver Sun, Harold Koh and the State Department tried to get the charges dismissed but were rebuffed by the Department of Defense:

Officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr, Canwest News Service has learned.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate. Prosecutors said in the wake of the Bush administration they were prepared to take about 60 Guantanamo detainees to trial — among them the accused co-conspirators of the Sept. 11, 2001 attacks.

The Pentagon issued its 281-page Manual for Military Commissions on the eve of hearings April 28 to May 6 in the Khadr case after the U.S. Congress updated the Bush-era Military Commissions Act with legislation President Barack Obama said makes them fair. Prosecution and defence teams use the courtroom rules to present their cases, but a new manual was necessary to conform to the legislative changes in the 2009 act.

The failed bid to change part of law-of-war murder rule — as well as separate arguments insiders say took place over other rules — illustrates how the commissions remain a point of division in the Obama administration. Numerous appointees — and even Obama himself — were sharply critical of the tribunals after the Bush administration launched them as a key tool in its post-9/11 “war on terror.”

[snip]

Among those leading the charge against the contested murder segment was Harold Koh, Obama-nominated legal adviser of the State Department, who once wrote that the U.S. was part of an “axis of disobedience” along with North Korea and Saddam Hussein’s Iraq.

[snip]

U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

As the article notes, and as Scott Horton discusses here, Koh and the State Department had an ulterior motive in opposing the crime — they are worried that it might come back to haunt the US’s drone program:

The pretext for demanding the draft-rule edit centred on concern about defending the legitimacy of Central Intelligence Agency drone attacks on terror suspects in Pakistan, one insider confided.

According to this official, it was feared that aspects of the commission manual’s “comment” in the section titled Murder in Violation of the Law of War could be applied to the attacks. Key among the contested phrasing is a statement that says murder and some other offences rise to the level of war crimes if committed “while the accused did not meet the requirements of privileged belligerency” — which principally covers regular war law-abiding combatants.

Their fears are legitimate.  The war crime doesn’t exist under international law regardless of whether the US pretends that it does.  But the US would find it very difficult to argue that another country could not prosecute a CIA agent involved in a drone strike for “murder in violation of the law of war” given its willingness to prosecute Khadr (and apparently dozens of others) for the same crime.

Stay tuned!

P.S.  It’s worth noting that four of the five “war crimes” Khadr allegedly committed do not actually exist under international law: murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, and material support for terrorism.  The only one that does exist — though the charge sheet does not provide much information about what Khadr allegedly did — is spying.

P.P.S.  For a very interesting discussion of “murder in violation of the law of war” as municipal, common law offense, see my friend John Dehn’s article in the Journal of International Criminal Justice here.

http://opiniojuris.org/2010/05/26/the-non-existent-murder-in-violation-of-the-law-of-war-redux/

11 Responses

  1. Kevin

    I think this link may work better to get to John’s article
    http://jicj.oxfordjournals.org/cgi/content/full/mqp015v1

  2. Thanks Kevin and Chris for the article plug.  In essence, my article argues that “murder in violation of the law of war” is a domestic, “common law of war” offense applied extraterritorially.  For those suspicious of that argument, the existence of this undoubtedly federal common law was recognized post-Erie in Ex parte Quirin.  The article did not reach the question of whether applying this municipal law extraterritorially is consistent with international law.  I believe it could be under the protective or passive nationality principles, depending upon their fundamental validity and/or potential scope.  My draft article on that issue awaits further attention.

  3. Response…
    Perhaps “wilful killing” is preferable, since it is a grave breach of the Geneva Conventions.  Confusion exists because of mistatements in Quirin and by some authors.  A person who has no right to engage in social violence during an armed conflict, an unprivileged fighter [certainly not a "belligerent" or "combatant" as those terms are understood under the laws of war] has no combatant immunity for what would otherwise be a lawful targeting by a combatant and can be prosecuted under domestic law for murder — but this is not a war crime, so this circ. does not create “murder in violation of the law of war.”  Otherwise, there are many circ. where killings can be murder and a war crime.
    Jordan

  4. “Murder in violation of the laws and customs of war” was charged in a number of Civil War cases, notably that of Henry Wirz, commandant of Andersonville prison.  Lack of combatant immunity does not appear to have been an  element of the crime.  Rather, the charges involved the killing of prisoners. Treacherous killing of adversaries bearing a white flag was charged as “murder in violation of the laws of war” in the case of the Modoc Indians.  For cites and a couple more examples, see   http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA517846&Location=U2&doc=GetTRDoc.pdf (pages 11 to 13). 

  5. For more on the supposed war crime of “Murder in Violation of the Law of War,” and the new Manual For Military Commissions, check out Prof. David Frakt’s Huffington Post piece of April 29, 2010.
    http://www.huffingtonpost.com/david-frakt/new-manual-for-military-c_b_557720.html

    He was formerly lead defense counsel with the Office of Military Commissions, He writes that three different military judges in three separate commissions at GTMO (Hamden, Jawad & al Bahlul) (Frakt was lead defense counsel for the last two) rejected the government’s argument that “Murder in Violation of the Law of War” under the 2006 MCA is simply any killing by a person whose status is that of an unprivileged belligerent, whether or not the killing itself violates IHL. Each judge “ruled that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war.”

    Frakt testified before a subcommittee of the House Judiciary Committee in the run up to the 2009 MCA, and argues that

     

    “Congress was well aware of these rulings when it enacted the 2009 MCA — I specifically mentioned them in my testimony — but left the definition of “Murder in Violation of the Law of War” unchanged, reflecting their comfort with these judges’ interpretation of the crime.”

    Regarding the new Manual’s commentary on the “Murder in Violation of the Law of War” offense, the subject of the dispute between the State Dept. and DOD, Frakt has this to say:
     

    “Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: “[A]n accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.
    [snip]
    The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.”

    I think Frakt’s point about the inconsistency of the DOD commentary with the both the text and the “elements” of the crime is devastating to DOD’s position on this offense. Perhaps DOD agrees with John C. Dehn’s view, if I understand it correctly, that “murder in violation of the law of war” is really a U.S. domestic common law crime that the U.S. government thinks applies extraterritorially.  I know John did not address in his IJCJ piece either the appropriateness of extraterritorial application of  this “municipal” offense  (or of vesting jurisdiction to adjudicate it in MCA Commissions), but Frakt’s seems to have made a pretty good case that the U.S. Congress didn’t see “Murder in Violation of the Law of War” as such an offense when it enacted the 2009 MCA. It will be fascinating to see how the Commissions deal with all this.

  6. Jordan,

    All agree that “willful killing” of a person protected from attack by international humanitarian law (IHL) is a war crime.  Every knowledgeable IHL scholar also well understands what you state regarding the consequences of engaging in armed hostilities without the combatant’s privilege.  However, the MCA offense very clearly intends to punish those who murder without privileged belligerent/combatant status.  You need only read the statute and its commentary (or my article’s analysis of both) to understand this clearly.  One must look past the label of the offense to its substance in order to accurately analyze it.

    Confusion exists because many scholars have not taken care to fully understand the basis of Quirin or to place the decision in its historical context.  Quirin was decided before the Nuremberg IMT and cited to Winthrop as a primary source of authority.  Customary and conventional IHL of that era did not require or impose individual punishment of enemy soldiers for a violation of the laws of war. There were no international “war crimes” at that time.  Thus, it is impossible for Quirin to have mistakenly identified a “war crime.”  It found that the charges against the saboteurs were fairly within the “common law of war” applied by U.S. military tribunals.

    Winthrop relied heavily upon the Lieber Code and on U.S. “military precedent” (primarily but not solely military commission decisions) when analyzing “war crimes” — a domestic common law analytical approach.   According to Lieber, every law of war violation (including engaging in hostilities when not a member of a party’s armed forces) either removed combatant (or civilian) immunity or never provided it.  Thus, in those circumstances the laws of war permitted punishment, they did not impose or require it.  Punishment was necessarily a sovereign act of the state imposing it.   If it is proper to call such punishment a “crime” at all, it was only a crime under domestic law.  (As I explain in the article, this “common law” approach was preserved in the Articles of War and in the Uniform Code of Military Justice.  The latter vests general courts-marital with jurisdiction to impose punishment permitted by the laws of war.)

    Anything defined as a crime by the MCA that is not a “war crime” in modern customary or conventional IHL is, necessarily, a domestic law of war offense.  Its lack of “war crime” status in IHL simply changes the legal basis for applying the crime to the conduct at issue.  It does not necessarily invalidate or prohibit it.

    The propriety of applying a domestic (a.k.a. municipal) offense therefore depends solely upon whether doing so is consistent with applicable international law.  If IHL does not provide combatant immunity under the circumstances, then it does not prevent the application of a municipal offense to the conduct at issue.  (Your statement above necessarily agrees with this.)  If the conduct occurred extraterritorially, however, then other customary international law becomes relevant to the analysis.  (Note here that these were not at issue in Quirin because the relevant conduct occurred within U.S. territory.)

    There are many arguable customary international law bases upon which states might prescribe law applicable to extraterritorial conduct.  Depending upon the precise circumstances, one or more of these bases might support the application of a domestic law of war offense to extraterritorial conduct in armed conflict.  The most likely candidates are the passive nationality and protective principles, though the latter requires some explanation.

  7. As to the PS, Judge Allred clearly rejected Hamdan’s claim that material support was not an offense traditionally considered a violation of the law of war.

  8. To MKS,
    The U.S. Dept of Justice apparently does not share your view of the matter. See the STATEMENT OF DAVID KRIS ASSISTANT ATTORNEY GENERAL
    BEFORE THE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON TERRORISM AND HOMELAND SECURITY UNITED STATES SENATE presented July 28, 2009.
    http://judiciary.senate.gov/hearings/testimony.cfm?renderforprint=1&id=4002&wit_id=8156

    “There are two additional issues I would like to highlight today that are not addressed by the Senate bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant likelihood that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby threatening to reverse hard-won convictions and leading to questions about the system’s legitimacy. ….”

  9. MKS,

    He did, indeed.  But that doesn’t mean his decision was correct.

  10. Based on the article in today’s N.Y. Times that Julian Ku & Ken Anderson have blogged about on OJ, it seems clear that any pretense by the U.S. government that “murder in violation of the law of war” is actually a war crime has been abandoned. Apparently the need to protect CIA drone operators from war crimes allegations tipped the scales, as the Times articles reports:

    “In recent months, top lawyers for the State Department and the Defense Department have tried to square the idea that the C.I.A.’s drone program is lawful with the United States’ efforts to prosecute Guantánamo Bay detainees accused of killing American soldiers in combat, according to interviews and a review of military documents.

    [snip]

    The United States has argued that because Qaeda fighters do not obey the requirements laid out in the Geneva Conventions — like wearing uniforms — they are not “privileged combatants” entitled to … battlefield immunity. But C.I.A. drone operators also wear no uniforms.

    [snip]

    [T]he Obama administration legal team confronted the issue [of the legality of CIA involvement] as the Pentagon prepared to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Mr. Khadr was 15.

    The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.

    An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

    But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime….” [my emphasis]

    So it appears that the U.S. efforts to shield the CIA drone pilots from being labeled war criminals have finally brought it to agree with Kevin: A war crime of murder in violation of the law of war? “There is no such animal!”

    On the other hand, it looks like the U.S. wants to eat its cake and have it too. It appears to have essentially adopted the view expressed in the comments above that this is 1. a U.S. domestic law crime (not a war crime) that is committed whenever an alien unprivileged enemy belligerent intentionally kills another person, and 2. That it is an offense traditionally triable by a military commission, so 3. They can still charge it against Khadr and other detainees and try them before military commissions rather than in U.S. federal court, without breaking Obama’s pledge to restrict the commissions to “law of war offenses.”

    At best this is just “old wine in new bottles.” Simply take the Bush Administration’s position on the substance of the crime (any intentional killing by someone who did not meet “the requirements for lawful combatancy “), change the label (from war crime to domestic crime), and write an accompanying commentary that says the commissions may convict on that basis. Voila! It no longer matters for purposes of the jurisdiction of the commissions or the elements of the offense that the killing was not in violation of IHL. And with the stroke of the key, the “war criminal” cloud is removed from over the heads of those CIA drone pilots. How clever!

    But perhaps I am wrong to criticize. In defense of the U.S. position John Dehn recently wrote here that: “[T]he MCA offense very clearly intends to punish those who murder without privileged belligerent/combatant status.  You need only read the statute and its commentary (or my article’s analysis of both) to understand this clearly.  One must look past the label of the offense to its substance in order to accurately analyze it.” OK, let’s do that.

    First, the claim that those who wrote the commentary clearly want convictions for this crime to be based solely on the status of the accused as an alien unprivileged enemy belligerent, without any proof that the killing was a violation of IHL, is entirely convincing. As the Times article points out, that helps the U.S. remove the “war criminal” cloud hanging over the heads of the CIA drone “pilots.” Plus it makes it much easier to convict for this crime Khadr and others whose conduct in killing did not itself constitute a per se violation of the law of war (e.g. perfidy, hors de combat). But it’s Congress’ s intent that counts, not the intent of the commentary writers.

    So let’s look at that. The claim was made that if we ignore the “label” of the offense [which, inconveniently, is “murder in violation of the law of war”], and accurately analyze its language, we see that the statute clearly manifests a legislative intent “to punish those who murder without privileged belligerent/combatant status.” But that assertion is just wrong because it ignores the words of the statute. The statute reads

    Any person subject to this chapter who intentionally kills one or more persons, including privileged belligerents, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct,
     
    not,
     
    Any person subject to this chapter who intentionally kills one or more persons, including privileged belligerents shall be punished, etc “

    Justice Felix Frankfurter is reported to have said that the first three things to do in trying to understand the meaning of a statute is to “READ THE STATUTE, READ THE STATUTE, READ THE STATUTE!” The only ambiguity about the meaning of the words “in violation of the law of war” in the statute defining “murder in violation of the law of war” is the ambiguity created by the cynical exercise engaged in by the authors of the Military Commissions Manual Commentary. As the three judges in the military commissions at Guantanamo described by Prof. Frakt (see my earlier comment above) understood, the words “in violation of the law of war” in this statute convey their plain or ordinary meaning, i.e., in violation of the international law of war, as the law of war is international law.  On the other hand, if we are wrong about that, and this crime is just “like espionage — an offense under domestic law not considered a war crime,” why isn’t the Obama administration honoring its pledge to limit the military commissions to “law of war” offenses and bringing these defendants into U.S. federal courts, which have vast experience in trying such cases, and will conduct criminal proceedings under a set of procedures that will result in verdicts that will be accepted as legitimate throughout the international community?
     

  11. Charles,

    To be clear, my article and the comment above do not “defend” the U.S. position or drone policy.  They offer a careful analysis of the law.  Whether that law is good current domestic policy was not my concern.  I do not favor or disfavor that policy in my article.  The article seeks to uncover the original basis of the punishment of law of war violations in U.S. law and how it is reflected in Quirin, and in past and present U.S. law and practice.

    As is clear in my article, your analysis of the statute neglects the fact that in the MCAs of 2006 and 2009 Congress already punishes unlawful killing of those protected by the laws of war (civilians, POWs) or a combatant adversary by perfidy, etc. elsewhere.  One must, “read the statute, read the statute, read the statute” in context, not in isolation. Trying to read the statute broadly and without reference to these other crimes, as both you do and Hamdan’s military commission judge did, is problematic.   In the context of the MCA, the commentary interpretation of this offense is a fair and probably more accurate one.  It is also entitled to some (not conclusive) weight in later judicial interpretation.

    Engaging in combat without meeting the requirements of privileged belligerent status is a “violation of the law of war,” meaning international humanitarian law.  That is why combatant immunity is either removed or never provided to those who do it.  It is simply not a “war crime” made expressly punishable by international law…or better stated…it is not conduct for which international law requires domestic punishment, as the Geneva Conventions require for grave breaches.  As my article explains, this was the case for all law of war violations at the time of the Lieber Code, Winthrop’s (1886 and 1920 revised) commentary and Quirin.  The laws of war of that era did not provide for or require individual punishment.  Per Lieber and Winthrop’s interpretation, it merely permitted it.  Punishment was therefore necessarily a domestic law/policy.  Winthrop begins his (1920 ed.) analysis of law of war offenses by stating that the law of war “in this country” (emphasis in original) consists primarily of unwritten law.

    The fact therefore remains that the history of “law of war offenses” in the U.S. appears to be one of domestic common law, and it is proper to read “law of war” in a domestic statute as referring to both international humanitarian law and its domestic component/implementation.  This is what the Quirin court did.  It looked to Winthrop and his domestic, common law analysis of “law of war offenses” to analyze the substance of the offenses, and then to relevant, applicable international law to ensure that that they were consistent with it.

    As I also point out in the article, the Quirin Court implicitly used a presumption against the defendants with regard to the spying charge, one that Winthrop documented in the Civil War and Lieber hinted at in earlier letters.  The use of such presumptions in armed conflict was not clearly prohibited in international law until the 1977 Additional Protocols to the Geneva Conventions. (Even assuming it applies, the presumption of innocence was subject to derogation during a state emergency in the ICCPR.)  It was this presumption, and a broad Civil War domestic interpretation of the treachery (or “armed prowler”) offense, that made it appear that the Court sanctioned the imposition of punishment for status rather than conduct. Such presumptions are not now at issue.  The offense requires a completed killing (unless an inchoate theory is properly offered – a topic for another day).

    With all of this said, I have a nascent article that will offer a different analysis of the development of this law and historical practice.  A recent visit to the Dutch Resistance Museum reinforced the thought.  If it proves to be the more accurate view, it would seriously undermine the continued use of military commissions (not necessarily courts-martial) from both a constitutional and international humanitarian law perspective.

    If I only had a research assistant…

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