29 Jan Thoughts on the CMCR’s Questions in al-Bahlul
As Bobby Chesney noted at Lawfare a few days ago, the Court of Military Commission Review (CMCR) has issued the following order in al-Bahlul:
Upon consideration of the record of trial and pleadings of the parties and amicus curiae, the following issues are specified and oral argument is ordered:
I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006). See Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).
II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?
ORDERED, that the Appellant’s brief on the specified issues is due on February 24, 2011 and the Appellee’s brief on the specified issues is due on March 11, 2011.
In this post, I want to offer a few thoughts on each issue.
In terms of the first question, the CMCR’s cite to footnote 40 in Hamdan says it all. The footnote mentions a number of international criminal sources — such as the ICTY’s decisions in Tadic and Milutinovic — for the proposition that joint criminal enterprise is a mode of participation in a crime, not a substantive crime such as conspiracy or material support for terrorism. JCE thus provides no support whatsoever for the idea that conspiracy or material support are substantive war crimes.
Indeed, as footnote 40 somewhat obliquely notes, the Nuremberg Military Tribunals specifically relied on the notion of “being connected with plans or enterprises” involving the commission of a crime — Control Council Law No. 10’s version of JCE — to reject the argument that conspiracy to commit a war crime was itself a war crime. Telford Taylor’s OCC alleged such conspiracies in its first three multi-defendant cases: Medical, Justice, and Pohl. In the Medical case, for example, Count 1 of the indictment was entitled “The Common Design or Conspiracy” and alleged in paragraph 1 that “all of the defendants herein, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together and with each other and with divers other persons, to commit war crimes… as defined in Control Council Law No. 10, Article II.” The other two indictments contained nearly identical language.
The defendants filed motions to dismiss the conspiracy charges in all three cases. The Committee of Presiding Judges responded by holding a joint session on the conspiracy issue on 9 July 1947 — the first and only joint session that involved oral argument. Telford Taylor argued on behalf the OCC. Carl Haensel, who represented Joel in the Justice case and Loerner in the Pohl case, argued on behalf of the defendants.
I discuss the oral argument at length in Chapter 12 of my book. Suffice it to say that Taylor and the OCC suffered a crushing defeat, with the Medical, Justice, and Pohl tribunals each dismissing the conspiracy counts on the ground that — in the words of the Justice tribunal — they had “no jurisdiction to try any defendant upon a charge of conspiracy considered as a substantive offense.”
Despite the dismissal of the conspiracy counts, the OCC was not quite ready to abandon the idea that it was criminal to conspire to commit war crimes. It thus tried a new tack in four later cases, folding such accusations into counts that alleged conspiracies to commit crimes against peace. Count 5 of the Farben indictment, for example, alleged that the defendants had participated in “a common plan or conspiracy to commit, or which involved the commission of, crimes against peace (including the acts constituting war crimes… which were committed as an integral part of such crimes against peace) as defined by Control Council Law No. 10.” Similar language appears in the Krupp, Ministries, and High Command indictments.
The OCC’s new approach was no more successful than its initial one. As the High Command tribunal pointed out when it dismissed the charges, conspiracy to commit war crimes functioned in the new omnibus count as a mode of participation, not as an substantive crime, because the count alleged the actual commission of such crimes. The conspiracy allegations thus added nothing to the counts that alleged the defendants were responsible for war crimes, because they were “connected with plans or enterprises” involving their commission.
I have no idea what the specific answer to the second question might be, but I think it is a bad sign that the CMCR is asking the question at all. To begin with, regardless of what American military commissions might have done during the Civil War or in the Philippines, I fail to see how “aiding the enemy” could be considered a war crime under the “law of nations.” No IHL convention prohibits aiding the enemy, and no international tribunal has ever criminalized, much less prosecuted, such assistance. Why would they? The most obvious situation is when a national of State A aids State B while it is at war with State A. In such a situation, “aiding the enemy” does not violate State A’s obligations to State B during the armed conflict — like treason, the aiding is a purely domestic matter for State A.
The issue is not appreciably more difficult when a national of State C aids State B while State B is at war with State A. To be sure, the law of neutrality once imposed a duty on State C to remain impartial in such a situation, but that does not mean the nationals of State C had the same duty. Indeed, as Elizabeth Chadwick has noted, “[a] crucial aspect of the operation of the law of neutrality was that the neutral duty not to supply war material to a belligerent did not necessarily extend to private commercial transactions by private citizens.” Besides, even if the same duty of neutrality did apply equally to State C and the nationals of State C, that would still not mean that a violation of the duty was a war crime. Are there any non-American examples of such violations being prosecuted as war crimes, as opposed to violations of the domestic law of the aggrieved state? I don’t know of any — much less sufficient state practice to constitute the “law of nations.”
More importantly, though, even if “aiding the enemy” does somehow qualify as a war crime, and even if that war crime is somehow not “limited to those who have betrayed an allegiance or duty to a sovereign nation,” it would still be illegitimate for the CMCR to rely on the war crime of aiding the enemy to hold that material support for terrorism is a war crime. The law of neutrality applies to states, not to non-state actors, and it governs international armed conflicts, not non-international ones. The only thing “aiding the enemy” and “material support for terrorism” have in common, therefore, is that they both involve individuals acting in a manner inconsistent with a government’s national-security interests. Any attempt by an international criminal tribunal to infer the latter “war crime” from the former would thus clearly violate the principle of legality, a critical aspect of which is that — in the Rome Statute formulation — “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy.” I am not a constitutional-law scholar, but I am confident that the “fair notice” requirement of the Fifth Amendment would foreclose the analogy between aiding and material support, as well.