Guest Post: What’s in Name? – Military Commissions and Criminal Liability under a U.S. Common Law of War

by Jonathan Hafetz

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School. He co-authored an amicus brief in D.C. Circuit on behalf of civil rights organizations in Hamdan v United States (Hamdan II).]

On September 30, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, will hear oral argument in the case of Guantanamo detainee and alleged al Qaeda propagandist, Ali Hamza Ahmad Suliman al Bahlul.   Earlier this year, a D.C. Circuit panel invalidated al Bahlul’s conviction by a military commission for conspiracy and related charges because those offenses did not violate the international law of war when committed.  The ruling in Al Bahlul followed logically from the D.C. Circuit’s previous ruling in Hamdan v. United States (Hamdan II), reversing the defendant’s conviction and holding that jurisdiction under the Military Commissions Act of 2006 (2006 MCA) is limited to violations of international law for conduct that pre-dates the statute.

Al Bahlul presents the important question of whether the U.S. may try in a military commission offenses such as conspiracy and material support for terrorism (MST) that do not violate international law. The U.S. government’s argument is predicated on the assumption that the jurisdiction of military commissions extends also to violations of a separate (domestic) U.S. common law of war. The principal focus in Al Bahlul will be on statutory and constitutional issues—more specifically, whether the 2006 MCA authorizes the prosecution of pre-2006 conduct that does not violate international law and, if so, whether the statute violates the Ex Post Facto Clause, the Define and Punish Clause, and/or the civilian criminal jury trial guarantee under Article III and the Fifth and Sixth Amendments.

It is important, however, to consider some other implications of the U.S. government’s argument for commission jurisdiction based on a domestic common law of war.  As described below, the U.S. position is in tension with the theory and purpose underlying war crimes prosecutions, regardless whether liability is imposed retroactively or prospectively.

International law rests on a consensus among nations regarding shared values and norms, and not on a particular country’s unique heritage or tradition.  This notion of shared norms—and of membership in a larger transnational community—is central to international law and to conceptions of its role in constraining state behavior.  War crimes are among the oldest offenses under international law.  They have developed over the centuries through custom and usage, reflecting an evolving consensus on conduct so extreme it is prohibited even during armed conflict, where state-sponsored violence is the generally accepted norm.

A separate “U.S. common law of war” jeopardizes the principle that war crimes rest on shared conceptions of exceptionally grave conduct.  It suggests, moreover, that each state may unilaterally define its own sub-set of war crimes, creating the possibility of multiple and inconsistent definitions of criminal liability during armed conflict.

To be clear, the United States is not advancing competing interpretation of a shared norm of substantive criminal liability.  Rather, it is prosecuting individuals based on what it claims is a separate domestic tradition of war crimes that exists outside and independent of internationally accepted norms. The position is thus directly at odds with the conception and purpose of war crimes.

The U.S. position also advances a sweeping expansion of individual criminal liability during armed conflict.  Under the guise of domestic law, it seeks to bring within the scope of war crimes conduct that exceeds even the broadest notions of collective liability articulated by international tribunals since Nuremberg.  Under international law, war crimes are considered grave offenses and liability is premised on personal culpability.  The U.S. common law of war theory, however, turns this notion on its head.  MST, conspiracy, and murder in violation of the law of war (the last charge is not at issue in Al Bahlul but supplied a basis for conviction in the Omar Khadr prosecution) seek to impose liability for virtually any participation in armed conflict by members of certain enemy forces (all of whom are designated as unprivileged enemy belligerents).

By effectively transforming all such fighters into war criminals, even if they do not themselves participate in or commit a war crime, the U.S. theory diminishes the expressive value of war crimes prosecutions.  Rather than criminalizing the actions of a fighter who transgresses specific norms during armed conflict, it makes all fighters in a particular conflict war criminals.  Status, in short, replaces conduct as the basis for war crimes liability.  Under this theory, the difference between a Khalid Shaikh Mohammed, accused of killing three thousand civilians, and a defendant prosecuted for MST or conspiracy merely for attending an al Qaeda-affiliated military training camp, becomes one of degree, not kind.

The United States has invoked the charge of war crimes in commissions not so much to properly capture the nature of the alleged conduct as to circumvent existing legal protections provided by Article III courts.   Despite improvements made since their earlier incarcerations, the commissions are still plagued by an absence of transparency, obstacles to the accused’s ability to confront the government’s evidence, and limitations on the attorney-client relationship and effective representation of counsel, among other problems. The commissions’ overriding purpose remains supplying an alternative forum that makes it easier to obtain convictions and that is more politically secure.

The commissions thus lack a key justification behind creation of specialized tribunals to address war crimes and other grave criminality—the inability or unwillingness of existing national tribunals to prosecute the offenses fully and fairly.  Their prosecution of war crimes thus serves the aim of forum diversion rather than vindication of an underlying and widely shared substantive norm.  Indeed, for the commissions, forum diversion through labeling conduct a war crime itself becomes the message: conveying opprobrium by shifting a broad category of cases away from a capable, but neutral forum (federal courts) to a specialized, second-class forum—a message embodied by the common refrain that foreign terrorism suspects do not “deserve” to be tried in the regular criminal justice system.

17 Responses

  1. Thanks for the post Jonathan. I don’t see the US position on the existence of a “US common law of war” as being too dissimilar to the way states define/interpret other international crimes at domestic law differently to that under international law. Take genocide’s protected groups. Under the Genocide Convention they are restricted to national, ethnic, religious and racial groups. Yet, many states, for the purposes of domestic law, have added a swathe of other groups including political groups and increasingly groups based on sexual orientation. Similarly, courts have upheld expansive domestic interpretations of genocide – such as cultural genocide in the ECtHR’s Jorgić case – that go beyond the definition as understood at international law. In other words, states can understand and define such crimes crimes differently under domestic law as we would under international law. Is that really any different – in principle – to the US position in the Al Bahlul litigation with respect to “US common law of war”?
    Of course, in the Al Bahlul litigation this would not likely fly as you’ve already pointed to prior holdings that the Military Commission’s jurisdiction extends only to international war crimes – and by implication not “US common law of war”. It’s creative lawyering though!

  2. Jonathan: an xlnt post.  The U.S. Supreme Court has already ruled that there are no more federal common law crimes.  United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 32-33 (1812).  See also 1 Op. Att’y Gen. 209, 210 (1818).  This does not mean, however, that international criminal law cannot be prosecuted directly (see Paust, Bassiouni, et al., International Criminal Law 269-71 (4 ed. 2013) and Paust, Van Dyke, Malone, International Law as Law of the United States 145-46 (3 ed. 2007)) — but it would be international law that must be prosecuted.  Further, 10 U.S.C. Sec. 818 and 821 incorporate by reference the international laws of war for criminal prosecution and provide concurrent jurisd. in milt. comms. (see, e.g., Ex parte Quirin and In re Yamashita re: the precursor to 10 U.S.C. Sec. 818, i.e., the 1916 Articles of War — the first U.S. legislation incorporating the laws of war) — but it is the international laws of war that are incorporated by reference–somewhat the same with the War Crimes Act (although some definitions and standards radically deviate from international law and should not be used).

  3. and the point should be made that what had been prosecuted since the Revolutionary War as violations of the laws of war prior to the existence of the first implementing statute (in 1916) was the international laws of war, not some peculiar U.S. “common law.”  Looking back in U.S. history, there is really no such thing as a peculiar “U.S. common law” of war that was divorced from the actual laws of war.

  4. Jonathan,
    For now, I won’t make any assertions about the accuracy of your argument in relation to conspiracy and material support other than that I tend to agree with you in significant respects (my quibble is with material support for terrorism as it might be applied in some cases).  I comment to take issue with your assertion that prosecuting “murder in violation with the law of war” somehow “diminishes the expressive value of war crimes prosecutions” and criminalizes “status” rather than “actions.”
    Regarding the expressive value claim, I disagree that clearly and affirmatively labeling something a domestic, common law of war offense diminishes the expressive value of international war crimes prosecutions.  Beginning with the Geneva Conventions of 1949, states bifurcated law of war violations between grave breaches, for which a penal sanction was required by the Conventions, and other punishable breaches of the laws and customs of war (see, e.g., Art. 70 of the Geneva Convention relative to the Protection of Civilian Persons).  States were free to punish these “lesser violations” of the laws and customs of war; they were simply not required by the Geneva Conventions to do so.  
    The body of what is considered a serious violation of the law of war has certainly expanded since then, particularly if we accept the crimes prescribed by the Rome Statute/Statute of the International Criminal Court as accurately representing them.  But the Rome Statute itself limits its scope to the most serious international crimes, thereby leaving some potentially punishable conduct on a lower plane free to be punished (at the very least internally) by states.  Thus, international law can be said to have identified those international law violations worthy of universal disapprobation and universal condemnation by the international community, and those worthy of universal disapprobation but with condemnation only from the sovereign authority of an injured state.  Such an approach does not diminish expressive value of the former category even if the state borrows the language of international law in defining its domestic crime.
    Regarding your claim about punishment of status rather than conduct, engaging in hostilities without meeting formal requirements for combatant and prisoner of war status is universally understood to allow punishment of the underlying (usually violent) conduct in which an individual engaged.  The offense of murder in violation of the law of war permits punishment for murder engaged in without the sanction of international law…without lawful authority.  It is widely accepted that those who engage in hostilities without meeting formal requirements for prisoner of war status may be punished under the domestic law of a state.  Such prosecutions are for domestic/municipal crimes in domestic tribunals in accordance with domestic law; but they are only made possible by the antecedent law of war violation, that of engaging in hostilities without the lawful authority or sanction of international law. 
    The only disagreement is with regard to which states and where or in which tribunals such an adjudication may be had.  The claim is often made that it must be in the territorial state’s (the state in which the violent acts occurred) non-military, domestic tribunals.  I am aware of no such rule in international humanitarian law.  Regularly constituted courts may be used and include military tribunals convened in accordance with domestic law.  So long as those tribunals provide requisite judicial guarantees, they comply with the Geneva Conventions and their Protocols.  Just as the Geneva Conventions and their Protocols extend their protections to any place the parties to a conflict interact, so to does the law permit states to punish law of war violations wherever they occur (Ex parte Quirin definitively establishes this proposition as to our nation’s enemies).
    Within the U.S. legal system, such irregular fighters have always been punished by law of war military commissions.  The Supreme Court has placed the power to punish this conduct within the war powers of our government (Quirin and Yamashita) and has sanctioned the use of military commissions to do so (ibid.).  If the question is whether the lawful authority to punish these fighters exists and where, the Supreme Court has already provided an answer, it does and in military commissions that otherwise comply with international law.  
    The question that I ponder is whether we should be estopped from prosecuting this offense by our historical use of irregular fighters, or by their use in this conflict.  If small bands of special forces and perhaps even paramilitary civilian intelligence operatives (themselves irregular fighters) used the irregular fighting forces of the Northern Alliance in the invasion of Afghanistan without the sanction (indeed, with the sanction) of domestic law, it might be argued that we should be estopped from punishing such fighters on the other side of the front lines.  

  5. But John, it is not a violation of the laws of war to directly participate as a civilian, unprivileged fighter.  That fighter does not have protection from targeting b/c of Geneva Protocol art. 51 and the CIL reflected therein.

  6. I would suggest that Art. 70 of the GPC allows such a fighter may be punished for their underlying conduct given their participation in hostilities.  Art. 51 supplements (rather than displaces) this by clarifying that such an individual may also be targeted while engaging in hostilities.

  7. That should have said “unauthorized” or “unsanctioned” (by international law) participation in hostilities.

  8. We must keep in mind that international humanitarian law did not affirmatively identify any of its violations as a crime until, at the earliest, the Geneva Conventions.  Punishment of law of war violations generally, and in the U.S. by military commission, have been around much longer than that.  Before then, international law merely permitted individual or collective punishment of its violations.

  9. John: yes, targetable and not entitled to “combatant immunity” for what otherwise (if engaged in by combatants) would have been lawful acts of war — but such targetableness (word?) and lack of immunity do not create war crime responsibility.  The lack of immunity is with respect to prosecution for any applicable domestic law (e.g., an extraterritorial U.S. federal statute that can apply because of compliance with one of four principles of jurisdiction under international law (like objective territorial, protective).  After Hudson & Goodwin, there is no relevant federal “common law,” much less some extraterritorial federal common law even if a direct and significant national security interest of the U.S. might allow prescription of some statute on the basis of the protective principle of jurisdiction under international law.

  10. Jordan, H&G does not address punishment by military commission.  It addresses the power of district courts of the U.S. to enforce common law crimes absent congressional enactment.  In no case involving a law of war military commission does the Supreme Court suggest that H&G is apposite.  
    Given that international law didn’t affirmatively define war crimes as such prior to 1949, how do you explain or describe the acknowledged power to punish law of war violations by military commission prior to that year?  What did Howard S. Levie get wrong in the FM 27-10 of 1956?

  11. John: not sure re: each of your Qs, but H&G would seem to be quite relevant re: prosecution by the feds in any forum — no common law crimes as such.  FM 27-10 made no mistake about that the fact every violation of the laws of war is a war crime and that universal jurisdiction pertains with respect to customary int’l crimes, even absent some perfect definition or listing of a possible penalty (and this point was recognized more generally by the IMT at Nuremberg with respect to HC No. IV of 1907, e.g., there is no need for the relevant law of war to identify the fact of individual responsiiblity, a perfect definition, what sanctions might pertain, what domestic forum might prosecute, or aut dedere aut judicare) — violations of the laws of war, not some peculiar U.S. “common law” outside the contours of the actual international laws of war.  Before 1949? 1863 Lieber Code attempt to codify the customary laws of war, in part; 1899 Hague Conventions; 1907 Hague Conventions; 1864 Geneva Conv.; 1906 Geneva Convs; 1929 Geneva Convs.; 1925 Geneva Protocol; 1899 Hague Declaration on expanding bullets; etc., etc.
    Every prosecution of violations of the laws of war in a military tribunal since the Revolution was just that — a prosecution violations of the international laws of war, treaty-based and customary.

  12. p.s. it was Major Richard Baxter (later Prof. at Harvard and Judge of the ICJ) who participated in the drafting of the FM.
    Also, FM 27-10, at 180-81, para. 505(e) states: “Law Applied.  As the international law of war is part of the law of the land in the United States, enemy personnel charged with war crimes are tried directly under international law….”  This is not completely correct, however, because 10 U.S.C. secs. 818 and 821 incorporate the laws of war as offenses against the laws of the United States (Quirin, Yamashita, Schultz, etc.) and provide concurrent jurisdiction in various military fora.

  13. H&G did not frame the issue as you suggest.
    Whether Baxter participated, Levie’s name is on the cover of my copy of the FM.  
    If 818 and 821 perform the role you offer, a point with which I agree except in its phrasing, how did punishment occur BEFORE that jurisdiction was expressly recognized by the Articles of War and UCMJ.  Indeed, how did they perform that role before international law affirmatively defined anything as a crime?  The law of war merely prescribes rules which were understood to permit punishment (see the Lieber Code).
    Winthrop refers to the law of war “in this country” and describes it as part of our law.  Therefore, I submit that the act of indvidual punishment by a sovereign constitutes the creation of a common law domestic crime before any statute authorized it.  818 and 821 merely preserves that which already existed.

  14. up until the 1916 Articles of War, directly (i.e., prosecution for violations of treaty-based and/or customary international laws of war directly as part of the laws of the United States).  There is a famous para. in Ex parte Quirin re: that fact and that “From the very beginning of its history this Court has recognized and applied the laws of war” re: “the status, rights and duties of enemy nations as well as enemy individuals.”  The IMT at Nuremberg cited Ex parte Quirin re: indiv. resp., etc.
    Concerning early prosecutions, see, e.g., 57 Mil. L. Rev. 99, 112-117 (1972), reprinted in part in our International Criminal Law casebook.
    No one seems to have thought that what was being prosecuted was some U.S. common law as such — merely the international laws of war that were directly incorporable.  The FM seems to aver that direct incorporation of the “international law of war” is still directly incorporable (i.e., without 10 U.S.C. sec. 818 incorporating it “be reference” as the Sup. Ct. would say, and did in Ex parte Quirin).

  15. Thank you all for the thoughtful responses.  John, I’d like to isolate two main areas we appear to differ. First, as Jordan suggests, I think there’s a distinction between what international law prohibits as a war crime and what international law simply does not protect or immunize, and thus allows to be prosecuted under domestic law (e.g., as murder).  In the case of Khadr, for example, international law does not consider murder by an unprivileged belligerent a war crime but rather allows the state on whose territory the offense is committed (i.e.,, Afghanistan) to subject it to punishment under its domestic law or another state (i.e., the U.S) to punish it based on the extraterritorial application of its domestic criminal law where, for example, it involved the murder of a U.S. national. A state’s simply  saying the murder was committed in violation of the law of war does not make it such–the conduct itself has to constitute a war crime, whether because it involves killing by proscribed means or killing of a protected person. Second, the Constitution–I would argue–prohibits trying offenses that don’t violate int’l law in a military commission (absent situations of martial law or prosecution or occupied territory). Quirin is best read as a narrow exception to Milligan and the default rule of Article III criminal jurisdiction. It is what Justice Stevens suggested in Hamdan was the outer limit (or “high water mark”) of military jurisdiction. And in Quirin, the offense violated int’l law–the offense being the removal of the uniform and surreptitious entry into the U.S. by a combatant, not the waging of war generally by an unprivileged belligerent, which is how the U.S. gov’t has (wrongly) insisted on reading it. Lastly, the U.S. position–taken to its logical conclusion–does in my view diminish the expressive value of war crimes because it effectively renders foot-soldiers subject to prosecution as war criminals based on their status and their mere participation in the given armed conflict.
    Manuel, I agree that States may under appropriate circumstances go beyond int’l norms in their codification of domestic offenses.  But the point is, as you seem to agree, that it is then a violation of domestic and not int’l law.  The problem with the U.S. position in Al Bahlul and other military commission cases is that the gov’t is using a concept rooted in int’l law (war crimes) to create a potentially substantial carve out from Article III jurisdiction for domestic offenses (e.g., material support for terrorism, conspiracy).  

  16. Jonathan,
    Thanks for your thoughtful response.  It seems we agree on the point that states may punish law of war violations that are not identified as “war crimes” by international law under a domestic criminal law and in a domestic tribunal.  
    I think where we part ways is in some rather important terms of art.  “Law of war violation” or “offense” and “international war crime” are not synonymous terms in U.S. law.  The 1956 Army Field Manual went to great lengths to make this point.  The “law of war,” referring to the customs or usages of (then-civilized) nations based in the natural/common law, continued (and I would argue based upon the IMT, Tadic and the Rome Statute continues) to exist in both international and U.S. domestic law.  Its violations, when not “war crimes” in positive international law, permit punishment of those engaging in them by the domestic law of an injured state.  Engaging in hostilities without combatant status has always been in this category, as you seem to recognize.  In my view, material support for terrorism may also fit here depending on the precise conduct being punished and its (necessary) nexus to an armed conflict.
    If this is all correct, the main issue then becomes one of domestic law not international law, namely: in which tribunal does U.S. law place authority to punish those engaging in hostilities without combatant status.  The answer to this has always been in military commission (except when they were called councils of war).  The reason is that, as the Supreme Court has clearly said, punishing those who engage in hostilities not sanctioned or permitted by international law are punished pursuant to the war powers of our government rather than Article III courts.  
    I’m working on an article to lay this out more clearly.  Unfortunately, it won’t be done in time for the next al Bahlul hearing but might be before other important steps in that (or other) cases are taken.  I’ll hope to get your and Jordan’s (no doubt highly critical) input!

  17. John: it seems that what you are partly focusing on here is customary international law, and I  don’t recall any mention of the phrases “natural law” or “common law” in FM 27-10, but, as noted above, the phrase “international law of war” appears, etc.

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