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