The CMCR Invents the “War Crime” of Material Support for Terrorism
Earlier today, the U.S. Court of Military Commission Review (CMCR) held in U.S. v. Hamdan that material support for terrorism is a war crime and thus within the jurisdiction of the military commissions. The decision represents the apotheosis of the US’s utterly self-referential approach to international law, because the CMCR managed to reach that conclusion without citing a single non-American source for the idea that material support is a war crime, not simply a domestic crime punished by states either of their own initiative or pursuant to suppression conventions. Indeed, the entire decision rests on a subtle — and fatal — elision of the difference between sources that indicate material support violates the law of nations and sources that indicate material support violates the law of nations regarding war crimes.
What is most distressing is that the CMCR is aware of the difference. The decision repeatedly acknowledges that the issue in the appeal is not whether the international community considers material support to be criminal, but whether it considers it to be a war crime (emphasis added):
“From the very beginning of its history [the Supreme Court] has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Ex parte Quirin, 317 U. S. 1, 27-28 (1942). Like the law of nations, the law of war must adapt to changing circumstances to be effective (p. 16).
Using its authority to define and punish offenses against the law of nations, Congress approves, within constitutional limitations, jurisdiction of military commissions to try persons for offenses against the law of war. Quirin, 317 U.S. at 26-31 (p. 16).
In this case, Congress and the President seek to protect our Nation’s interests in ensuring compliance with the law of war and adherence to the law of nations, including customary international law, through adjudication and punishment of particular crimes against the law of war (p. 20).
We, like the military commission judge, consider international and domestic sources of law for pre-existing examples of criminalization under the law of war of conduct similar to that for which appellant was convicted (p. 34).
This emphasis on whether material support is criminal under “that part of the law of nations which prescribes… for the conduct of war” disappears, however, as soon as the CMCR begins to analyze international sources of law. The CMCR signals the change in emphasis at the very beginning of its analysis of those sources, when it notes that it has “an independent responsibility to determine whether appellant’s charged conduct existed as well-recognized criminal conduct” (p. 20). Indeed, the section itself is revealingly — and distressingly — entitled “Criminalization of Analogous Global Conduct.” Notice what is absent in these new formulations of the issue: any requirement that material support be well-recognized as a war crime.
That is not accidental. On the contrary, the elision is necessary to permit the CMCR to claim that international conventions and decisions of international tribunals support the idea that material support is a war crime. Consider the first category of international sources that it cites: international conventions and declarations. After discussing a number of suppression conventions, such as the International Convention for the Suppression of the Financing of Terrorism, the International Convention for the Suppression of Terrorist Bombings, and the International Convention Against the Taking of Hostages, the CMCR concludes as follows (emphasis added):
Although the approach of various nations towards punishment of terrorism-related offenses varies, prosecution of such offenses has been encouraged by the United Nations Security Council and treaties. We are satisfied that international conventions and treaties provided an additional basis in international law that appellant’s charged conduct in support of terrorism was internationally condemned and criminal.
Yes — but not as a war crime. Put aside the fact that, with the exception of the 1999 terrorist financing convention, none of the suppression conventions mentioned by the CMCR deal with anything resembling material support for terrorism, as opposed to terrorism proper. More important, none of the suppression conventions discussed in the decision address terrorism as a war crime. Indeed, the purpose of the conventions was precisely to address terrorism outside of armed conflict, where domestic laws and mutual legal-assistance regimes were often inadequate to address terrorist acts.
The next international source is even less helpful: joint criminal enterprise at the ICTY. According to the CMCR, nothing prevents it from “considering JCE… for purposes of determining whether an appellant’s conduct was prohibited and historically punishable as a law of nations offense” (p. 41). And lo and behold, it does!
In applying the JCE liability analysis, appellant’s underlying conduct constitutes known, unlawful acts historically punishable and established before 1996 (p. 43).
This is a ridiculous conclusion. First, JCE requires proof that the defendant entered into an agreement with another person to commit a crime, that the defendant intended to commit the crime, and that the crime was actually committed — three requirements that are strikingly absent from the crime of material support (see pp. 28-29). Second (and this should go without saying), JCE is a mode of participation, not a “law of nations offense.” Indeed, the CMCR itself acknowledges as much, noting two paragraphs after its statement that it can use JCE to determine whether material support was historically a “law of nations offense” that “JCE doctrine provides a theory of liability for proving a specific crime, and it is not a stand-alone substantive offense” (p. 41). The CMCR might as well claim — and almost does, when it considers the modes of participation in the Rome Statute (p. 44) — that the existence of aiding-and-abetting in international criminal law supports the existence of material support as a war crime. After all, the “underlying conduct” in aiding and abetting as a mode of participation is kind of like the “underlying conduct” in the crime of material support.
The CMCR’s discussion of the third international source — “Non-United States Domestic Terrorism Laws” — is no better. Here we see the elision between material support as a violation of the law of nations and material support as a war crime under the law of nations most clearly, as indicated by the CMCR’s framing of its analysis (emphasis added):
It is the duty of this court to ascertain whether appellant’s conduct, providing material support for terrorism, constituted an offense against the law of nations. In doing so, we apply the definition of terrorism in 2006 M.C.A. § 950v(b)(24)… and we consider the degree to which appellant’s underlying conduct violated international standards defining crimes as shown by various national laws prohibiting terrorism (p. 45).
Notice: crimes, not war crimes. Thus framed, domestic terrorism laws obviously supports the CMCR’s desired conclusion. As it notes, many states criminalize terrorism. Some even criminalized it prior to 1996, when Hamdan’s acts of material support took place. (Although the decision cites only one state that did, India, and that state’s pre-1996 terrorism laws did not criminalize anything remotely as broad as material support). None of those statutes, however, deem terrorism — much less material support for terrorism — to be a war crime. So the entire discussion is irrelevant.
The fourth and final international source is perhaps the worst of all: the crime of criminal membership at the International Military Tribunal and the Nuremberg Military Tribunals. The CMCR cites criminal membership, and convictions for it, in support of its conclusion that there is historical precedent for the “war crime” of material support. The analogy, however, is fatally flawed. To begin, criminal membership was not a war crime; it was a sui generis independent crime. More important, though, criminal membership does not bear even a passing resemblance to material support. First, and most obviously, whereas criminal membership required membership in a criminal organization, material support criminalizes the actions of individuals who are not members of a terrorist group. (See Humanitarian Law Project.) Second, the crime of criminal membership was purely inchoate; because of the membership requirement, it did not require the defendant to contribute to the criminal organization’s crimes in any way. Material support, by contrast, is defined by the defendant’s contribution, however slight, to the terrorist group’s crimes. The only similarity between the two crimes, then, is that they both involve criminal groups.
Properly understood, in short, literally none of the international sources cited by the CMCR provide any support whatsoever for its claim that “[w]hen appellant’s charged offenses began in 1996, the underlying wrongful conduct of providing material support for terrorism, as now defined under the 2006 M.C.A., was a cognizable offense under the law of war” (p. 75). The only sources to that effect are American ones — and even those are far less helpful than the CMCR assumes. But that is a subject for a subsequent post.