Frakt on Direct Participation as a War Crime

by Kevin Jon Heller

I want to call readers’ attention to David Frakt’s excellent essay on direct participation in hostilities as a war crime.  Here is the abstract:

This article addresses, in part, the question of what to do with civilian direct participants in hostilities who are not killed by opposing armed forces, but are captured. Specifically, the article address the potential criminal prosecution of detained DPHs. The ability to detain provides an opportunity to the detaining power to prosecute the DPH “for an offence arising out of the hostilities.” But is it a crime for someone who does not meet the Geneva Convention requirements for POW status to directly participate in hostilities? In other words, are all DPHs criminals? If so, are they war criminals, or, rather, common domestic criminals? The prevailing international view is that direct participation in hositilities in and of itself is not a war crime. Contrary to the prevailing international view, the United States has attempted, through the military commissions of Guantánamo, to treat direct participation in hostilities as a war crime. This article examines that effort, including the prosecutions of David Hicks and Omar Khadr, and the failed prosecution of Mohammed Jawad for alleged direct participation in hostilities. The article concludes that America’s effort to convert all fighting against the U.S. by unprivileged enemy belligerents into a war crime has been a failure.

I’ve spent a great deal of time over the years criticizing the US government for attempting to invent war crimes — and criticizing courts for all too often permitting those attempts to succeed.  Frakt’s essay addresses one of the government’s rare failures, and it is a model of clarity, fairness, and analytic precision.  I was particularly struck by the force of his conclusion that “[i]n the future, if the United States seeks to create new customary international law, it should focus on criminalizing acts that are of greater global concern than routine attacks on U.S. troops.”  That seems like very good advice indeed.

9 Responses

  1. “The article concludes that America’s effort to convert all fighting against the U.S. by unprivileged enemy belligerents into a war crime has been a failure.”

    Is this a fair statement given that the U.S. government is currently charging this offense and argues, I think, that participation in hostilities without the combatant’s privilege is an American, domestic common-law-of-war offense rather than an “international” war crime?  I confess that I haven’t had time to read the article but it seems Frakt takes as given a different view of of the subject matter jurisdiction of military commissions (as encompassing only “international” war crimes) than is currently being asserted by the government prosecutors (that it also includes violations of international humanitarian law historically treated as crimes in the U.S. “common law of war”).  I have this one on my “to-read” list though.  Thanks, Kevin.

    Such U.S. arguments do raise concerns under the legality principle, of course.  But I am somewhat sympathetic to an argument that civilians who take a direct part in hostilities and who may be targeted and killed while doing so, and who also may also be subject to criminal prosecution by the state in which they engage in acts of violence, have sufficient notice of the wrongfulness of their actions.  My views are a bit more nuanced on this point as well, though.

  2. Kevin –

    Thanks very much for your kind words.  The article should be out any day in the Valparaiso Law Review 46 Valparaiso L. Rev. 729 (2012).

    Professor Dehn –
    You are absolutely correct that the U.S. is now treating direct participation in hostilities as a common law domestic war crime rather than as an international war crime, and I address this in the article.  The subtitle of my article is “America’s Failed Efforts to Change the Law of War.”  I view the Law of War as a body of international law (IHL), and suggest that America’s efforts are unlikely to move the prevailing view of the international community or be considered a significant practice of customary international law. The primary vehicle for prosecuting direct participation in hostilities has been the offense of “murder in violation of the law of war” inthe Military Commissions Act.  According to the latest version of the manual for military commissions, in order to commit murder in violation of the law of war, one need not actually violate the international law of war. The shift from treating this offense as an international war crime to a common law domestic war crime was motivated by a desire to protect CIA drone operators from charges that they are violating the law of war as civilians directly participating in hostilities.  I hope you enjoy the article and would welcome your comments.

  3. While I agree that the military commission characterization of DPH as a war crime is potentially legally problematic I would have been interested to see the reaction of Kevin and others if the US had done the legally “correct” thing and handed over all those captured for trial (and in many cases execution) by the Iraqi and Afghan criminal justice system.  I somehow doubt that such a practice would have passed without objection.

  4. Thanks for responding to my thoughts, Professor Frakt.  I do plan to enojy your article as soon as I can. 

    I am curious about your statement that,

    “The shift from treating this offense as an international war crime to a common law domestic war crime was motivated by a desire to protect CIA drone operators from charges that they are violating the law of war as civilians directly participating in hostilities.”

    Is that the sole basis?  Do you have direct proof or knowledge of that?  I have no doubt it may be part of the reason.  But I also suspect that it was in part a response to the reality that this issue is unsettled in international law. 

    As I have stated numerous times here and elsewhere, there were “war crimes” before the Nuremberg IMT, but there were no “international war crimes” as that term is today understood (crimes defined as such by international law).  States punished law of war violations by their adversaries or civilians either at the individual or collective level, the latter (for those unfamiliar, called reprisal or retaliation) now being generally prohibited.  But one must remember that even reprisals against or collective punishment of the civilian population were not always prohibited.  There is post WW II case law addressing the disproportionality of civilian reprisals rather than their absolute prohibition.

    But punishment of individuals is not prohibited and there may indeed be support for punishing civilians for “violations” of the international laws of war, which arguably might include engaging in hostilities against an invading force.  In Article 70 of the Geneva Convention relating to the Protection of the Civilian Persons in Time of War, “Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war.” (emphasis added)  This language suggests that there are punishable “simple” breaches of the laws of customs of war which are different from the “grave breaches” later defined in that instrument, which are now thought of as “international war crimes.”  If the treaty intended to make only grave breaches punishable, one would have expected the use of that specific term and a cross-reference to the relevant article.  

    Also of note, the development of a strong legality principle in international law makes it difficult for “international crimes” as currently conceived to develop by custom.  Attempts to define a new crime in international law other than by agreement/treaty would inevitably implicate the principle.

  5. I should note, as well, that we are not only discussing civilians taking a direct part in hostilities.  We are also discussing individuals possesed of a continuous combat function for a non-state party to an armed conflict. 

    Combatant immunity for acts of war is derivative of a state’s sovereign immunity.  As such, it is not available to members of a non-state organized armed group engaged in armed conflict.  Such individuals may legitimately be targeted, and have historically been potentially subject to prosecution for their acts of violence, even those forming a part of the hostilities of an armed conflict that would be immunized if engaged in by a member of a state’s armed forces.  (However, early U.S. commentators stated that suchindividuals may and usually should be treated as prisoners of war.) 

    The term often used for such individuals is “fighters.”  The Military Commissions Act of 2009 denominates them “belligerents” to avoid modern terminology concerns over the use of “combatants.”  To refer to all such individuals civilians is to accept a view of the status of participants in non-international armed conflict that is not generally accepted.

  6. John –

    The evidence for the CIA claim is in the article, and is based on reporting in the New York Times. The other reason they changed the commentary describing the offense may have been the rejection by the military judges at Guantanamo of the government’s theory of the offense of murder in violation of the law of war in the Hamdan, Jawad and al Bahlul cases. I was lead defense counsel in Jawad and al Bahlul.  

    Sounds like you should read my article, then write a response. There is certainly room for debate in this area.


    David Frakt

  7. I am aware of how the commissions treated the offense in those cases and wrote an article, published in 2008, explaining why they were probably wrong even under the 2006 MCA and related Manual for Military Commissions.  That is why I found your comment so curious.  If your source of authority is the New York Times, I understand the statement.  I simply think it is, at best, an incomplete explanation.  Additionally, although I didn’t delve into it, I thought the government should have argued these issues differently in Hamdan, and that if they had done so it may have helped the commissions properly understand the true graveman of the offense.

    Still looking forward to reading the piece!



  8. The notion that a civilian participating directly in hostilities could, in and of itself, be a war crime, is plainly ludicrous. Rather, I say it _should_ sound ludicrous. All one need do is imagine the case of, say, America being invaded on its own home land by China. I know this may sound far fetched, but stick with it. If an American person woke up one morning and found the USA had been invaded by China, is there seriously an academic in the entire USA who would call him a _war criminal_ for engaging in a guerilla defence of his homeland? Please. Give me a break. No American would say that. When it is Iraqis defending Iraq against the USA, it sounds a little different. But it’s the exact same concept. If you’re an intelligent person there is literally no way you can possibly conclude that simple direct participation on its own makes a citizen a war criminal. War is bad and all that… but some people don’t have a choice whether war visits them.

  9. The Geneva Conventions account for the spontaneous taking up of arms by the civilian population in immediate response to an imminent or actual invasion by granting prisoner of war status to those who do so.  However, it does not and should not apply to Al Qaeda or its off-shoots for what I would think are obvious reasons, even if those groups recruit from an effected civilian population.

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