Al-Bahlul, Conspiracy and the Subject Matter Jurisdiction of Military Commissions

I will delay any detailed response to Kevin’s typically insightful posts about the CMCR’s recent decision, particularly its conclusion of a “substantial showing” that conspiracy to violate the laws of war is “an offense against the law of armed conflict.”  For now, I will note that I have some similar concerns to those Kevin expressed (e.g. on the relationship or relevance of joint criminal enterprise and criminal participation liability to conspiracy liability).

In fact, I am highly suspect of any claim that customary or conventional laws of war (not including the Rome Statute) affirmatively sanction the punishment of inchoate violations such as conspiracy, attempt or solicitation.  Prior to the Rome Statute, relevant treaty law addressed only completed violations.  For example, the 1949 Geneva Conventions (GCs) and their protocols require states to impose a penal sanction only for completed grave breaches. The Nuremberg IMT and ad hoc tribunals offer no real support for inchoate liability.  Interestingly, though, the Rome Statute includes both attempt and solicitation liability/responsibility, in Article 25 (b) & (f), respectively.  It also includes liability for those who “in any other way contribute to the commission or attempted commission” of a war crime.  Article 25(d) (emphasis mine).

For these reasons, there appears to be an open question regarding whether international law permits the use of the other domestic modes of inchoate criminal liability to punish non-nationals for extraterritorial violations of the law of war.  Exploring this rather complex issue requires retracing the origins of law of war violations and their punishment.

States have punished law of war violations by adversaries and their sympathizers since long before there were international laws affirmatively requiring or authorizing it.  The law of war prior to the 1949 GCs was understood to permit punishment of captured members of enemy forces as well as certain hostile civilians for violations, and indirectly required punishment – through the threat of reprisals and the command responsibility doctrine – of violations by members of friendly forces.

The 1949 GCs for the first time required states to impose a penal sanction for grave breaches (regardless of the nationality of the victim or offender), but all such punishment remained a sovereign act of the individual states party — a domestic crime with an international origin.  Additionally, this new requirement to punish certain offenses did not immediately change the view that all violations of the law of war permitted punishment.  This is why the 1956 U.S. Army Field Manual on the topic defined a “war crime” as “the technical expression for a violation of the law of war by any person or persons, military or civilian.” It continued, “[e]very violation of the law of war is a war crime.”  Although the law being violated was international in origin, the sanction was necessarily domestic in character.  This is consistent with Blackstone’s commentary on the topic, and also with the way that other violations of the law of nations by individuals, such as piracy, were traditionally punished.

Contemporary notions of “international criminal law” create the perception that customary or conventional international law must expressly or affirmatively provide for a criminal sanction for a given law of war violation.  This is required, we are told, by the legality principle: nullem crimen sine lege, which is similar to our constitutional prohibition on ex post facto laws.

But is affirmative definition or identification of conduct as a crime in customary or conventional law truly necessary?  If so, how could the customary law of international war crimes evolve or expand? All contrary state practice would necessarily be invalid under the legality principle (unless, perhaps, only nationals or territorial violations are prosecuted).  Or is it the case that these traditional understandings provide adequate notice that states may punish all law of war violations?  If the traditional understanding is that the law of war permitted such punishment, one could argue, the world is on notice and (an admittedly loose understanding of) the legality principle potentially satisfied. This would potentially leave us with two types of “war crimes” – those that are solely domestic crimes implementing lesser aspects of the laws of war and subject to standard constraints on prescriptive criminal jurisdiction (territoriality, passive nationality, etc.), and those deemed so serious that international law both requires punishment and permits the exercise of universal jurisdiction.

Both before and after the 1949 GCs, the subject matter jurisdiction of U.S. military commissions traditionally extended to all law of war violations against U.S. forces.  As Kevin noted, though, it went beyond international law of war violations during the U.S. Civil War, including a conspiracy offense (and what seems to me at least one other inchoate violation) not clearly within that law.  Colonel Winthrop’s commentary analyzed this vibrant domestic common law of war.  He noted developments in both the substantive and procedural components of this common law in the decision-making of military commissions.

But the Civil War was an internal armed conflict.  Thus, all such developments were, at best, domestic common law only.  They were one state’s practice rather than customary international law.  Such domestic common law doctrines and developments are fairly within the subject matter jurisdiction of military commissions from the perspective of U.S. law.  However, their application to extraterritorial violations by non-nationals would implicate the legality principle and the constitutional prohibition of ex post facto laws, but only if not consistent with relevant international law.

For me, then, the key question is whether the application of this admittedly domestic criminal responsibility doctrine is consistent with international law.  Does the earlier cited language of the Rome Statute reflect either customary international law or an applicable general principle of law?  Does one “contribute to the attempted commission of . . . a crime by a group of persons acting with a common purpose . . . with the aim of furthering the criminal activity or criminal purpose of the group” by entering into a criminal conspiracy so long as the group ultimately makes a substantial (rather than merely any overt) step toward completing the offense? It at least seems plausible.  I am, of course, very interested in what Kevin thinks about all of this (though I suspect that I know the answer).