The United States’ Radical Charges Against Al-Nashiri

by Kevin Jon Heller

The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002.  Here is Bobby Chesney’s helpful description of the charges:

Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to get close to the USS Cole exploited the protection for civilians under the law of war.

Charge 2: Murder in Violation of the Law of War (10 USC 950t(15)) – the idea here is that the perfidious attack rendered the resulting murders violations of the law of war).

Charge 3: Attempted Murder in Violation of the Law of War (10 USC 950t(28)) – same as above as to the Cole, but a separate specification mounts this charge also in relation to the failed attack on the USS [The] Sullivans in January 2000.

Charge 4: Terrorism (10 USC 950t(24)) – The first idea here is that the attack on the Cole was intended to influence the government through unlawful violence.  A second specification presents the same claim as to the 2002 attack on the MV Limburg.

Charge 5: Conspiracy (10 USC 950t(29)) – The conspiracy charge as referred is a touch narrower than it was when first specified.  References to activities in Qatar and Bosnia have been deleted, for example.  But the bottom line is the same: a conspiracy with other al Qaeda figures to commit terrorism and murders in violation of the law of war, supported by various overt acts.  Interestingly, the convening authority deleted the first specified overt act, having to do with allegations that al-Nashiri between 1994 and 1999 traveled to various locations to obtain training and participated in fighting.

Charge 6: Intentionally Causing Serious Bodily Injury (10 USC 950t(13)) – similar to the murder count, related to the Cole attack.

Charge 7: Attacking Civilians (10 USC 950t(2)) – Based on the Limburg attack.

Charge 8: Attacking Civilian Objects (10 USC 950t(3) – same as above

Charge 9: Hazarding a Vessel (10 USC 950t(23) – same as above

There are numerous problems with the specific charges, such as the idea that a perfidious act that causes the death of individuals who are otherwise lawfully targetable (i.e., combatants) qualifies not only as the war crime of perfidy, but also as the war crime of murder.  There is, of course, no support for that position in the law of war.

The more fundamental problem with the charges, however, is one that I’ve discussed before: namely, that was no armed conflict between the U.S. and al-Qaeda at the time of the attack on the USS Cole or the attempted attack on the USS The Sullivans.  Both attacks took place prior to the AUMF, so the (flawed) argument that the AUMF recognized a global non-international armed conflict (NIAC) between the U.S. and al-Qaeda is unavailing.  As a result, the U.S. has only two possible arguments: (1) that any terrorist attack on a military target is governed by the laws of war; or (2) that bin Laden’s “declaration of war” on the U.S. in 1996 triggered the laws of war.  The first argument finds no support whatsoever in international humanitarian law — and, indeed, is far more radical than the U.S. claim (also flawed) that it can simply concatenate any terrorist attack anywhere into a global NIAC.  The second argument is even more incoherent, and simply continues the regrettable — and wholly opportunistic — U.S. tendency to elide the difference between international armed conflict (IAC) and non-international armed conflict.  As the eminent American scholar Quincy Wright noted long ago, “insurgents or native communities, not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  The same is true for other non-state actors, such as terrorist groups like al-Qaeda.  Bin Laden’s “declaration of war” on the U.S. is thus irrelevant to whether there was an armed conflict between al-Qaeda and the U.S. at the time of the attacks alleged in the charges against Al-Nashiri.

Because there was no armed conflict between the U.S. and al-Qaeda at the time of the attack on the USS Cole or at the time of the attempted attack on the USS The Sullivans, none of the charges related to those events can properly be considered war crimes.  That leaves the charges concerning the October 2002 attack on the MV Limburg.  Was that attack governed by the laws of war?  I’m skeptical, for reasons that should be familiar to readers by now, but the issue is at least more difficult for the attack on the MV Limburg than for the pre-9/11 attacks.

There is, however, a much deeper question raised by the charges involving the MV Limburg: why does a U.S. military commission have jurisdiction over that attack?  The MV Limburg was a French oil-tanker owned by Belgium and chartered by Malaysia; as far as I know, no American was harmed in the attack or was even aboard the ship.  (The one fatality was Bulgarian.)  So what is the jurisdictional nexus?

The charge sheet is silent on that issue.  The only possible argument for jurisdiction that I see involves the definition of “unlawful enemy combatant” in 10 U.S.C. 948(a) (emphasis added):

(1) Unlawful enemy combatant. – (A) The term “unlawful enemy combatant” means – (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal
established under the authority of the President or the Secretary of Defense. (B) Co-belligerent. – In this paragraph, the term “co-belligerent”, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.

The argument here would be that that France was a co-belligerent of the U.S. in the conflict with al-Qaeda, bringing the attack on the MV Limburg within the purview of a military commission.  But that argument is not without its difficulties.  To be sure, France supported and participated in the war in Afghanistan, which makes it appear to be a “co-belligerent” in that war.  But it is far from clear whether France can be considered a “co-belligerent” of the U.S. in the global NIAC between the U.S. and al-Qaeda — even if we bracket the fact that no such armed conflict exists.  To the best of my knowledge, France has never embraced the U.S. position that the laws of war apply to any terrorist attack anywhere; indeed, this report by the International Centre for Counter-Terrorism says that France views terrorism as governed by the law-enforcement paradigm.  If so, the claim that France is a a co-belligerent of the U.S. outside Afghanistan rings hollow — and undermines the validity of the charges against Al-Nashiri involving the attack on the MV Limburg.

Readers, your thoughts?

http://opiniojuris.org/2011/09/28/the-united-states-radical-charges-against-al-nashiri/

2 Responses

  1. As to your last point, I would look to Article 6(2)(3) of the 1988 Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention). It provides that a State Party has jurisdiction over attacks on ships when “it is committed in an attempt to compel that State to do or abstain from doing any act.” France, the US and Yemen are all States Party to the SUA Convention.

  2. Response…
    And prosecution should be in the federal district court — not a war crime re: a law of war milt. comm.  And yes, we were not and still cannot be at “war” with al Qaeda as such, which is not to say that some members of al Qaeda in a real theatre of war in Afghanistan could not be prosecuted in a fed. dist. ct. for a war crime if they violated the laws of war.
    And in a fed. dist. ct., the U.S. could prosecute under 18 U.S.C. 2332(a) and (b) — estraterritorial murder and/or serious bodily injury to a U.S. national legislation.  And what would the jurisdictional basis be under int’l law?  Perhaps human rights law and universal jurisdiciton or protective jurisdiciton.

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