Frakt on Direct Participation as a War Crime
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.