Did You Know Hazarding a Vessel Was a War Crime? Me Neither.

by Kevin Jon Heller

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that “war crime,” 10 U.S.C. § 950t(23):

(23) Hijacking or hazarding a vessel or aircraft.— Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

Hijacking or hazarding a vessel is not a grave breach of either the Geneva Conventions or the First Additional Protocol. The Rome Statute does not criminalise hijacking or hazarding a vessel. No international tribunal has ever prosecuted the hijacking or hazarding a vessel as a war crime — not the IMT, not the ad hocs, not the ICC. The ICRC’s study of customary IHL does not mention hijacking or hazarding a vessel — although it does note that both the US Naval Handbook (Vol. II, p. 3893)  and The Restatement (Third) of the Foreign Relations Law of the United States (Vol. II, p. 3938) specifically distinguish between hijacking and war crimes. And so on.

How, then, does Judge Pohl somehow conclude that hijacking or hazarding a vessel is a war crime — as opposed to attacking civilians or civilian objects, both of which are war crimes and are both of which are also detailed in al-Nashiri’s charge sheet? By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Seriously. By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Here is what Judge Pohl says (emphasis mine):

The M.C.A. prohibits conduct that “endangers the safe navigation of a vessel.” The similarity between the M.C.A. and the SUA Convention is plain and unambiguous. The SUA Convention proscribes the same conduct the M.C.A. proscribes and of which the Accused is charged… The Commission finds by a preponderance of the evidence the Prosecution has demonstrated the crime of Hijacking or Hazarding a Vessel or Aircraft is based on norms firmly grounded in international law and can be plainly drawn from established precedent. Therefore, the Commission concludes the offense of Hijacking or Hazarding a Vessel or Aircraft was an international law of war crime at the time the Accused allegedly engaged in the conduct, thus conferring jurisdiction over the offense.

That’s it. That’s Judge Pohl’s entire argument. Never mind that the SUA Convention says nothing about the laws of war, applying equally in armed conflict and peacetime. Never mind that the SUA Convention does not even purport to create an international crime — it is, of course, a suppression convention that simply obligates States Parties to domestically criminalise certain acts. Never mind that, even if it is possible to argue that the widespread ratification of the SUA Convention somehow creates a customary rule prohibiting hijacking or hazarding a vessel (difficult in itself), such a customary rule would still not create “an international law of war crime.”

I hope I don’t need to explain in more detail why the widespread ratification of a suppression convention doesn’t create a war crime. But let’s take Judge Pohl’s methodology seriously. Want to know what other kinds of acts are also war crimes prosecutable in a military commission?

  • Nuclear proliferation (NPT — 190 ratifications)
  • Threatening civilian aviation (Safety of Civilian Aviation Convention – 188 ratifications)
  • Drug trafficking (Illicit Traffic in Narcotics Convention – 188 ratifications)
  • Manufacturing hallucinogenic drugs (Psychotropic Substances Convention – 182 ratifications)
  • Using child labor (Worst Forms of Child Labor Convention – 177 ratifications)
  • Transnational organised crime (Transnational Organized Crime Convention – 176 ratifications)
  • Kidnapping diplomats (Internationally Protected Persons Convention – 176 ratifications)
  • Corruption (Anti-Corruption Convention – 167 ratifications)
All of those conventions are suppression conventions — and each has been much more widely ratified than the SUA Convention. According to Judge Pohl’s logic, therefore, all of those acts are also violations of the international laws of war.In the off chance you needed additional proof that the military commissions are a joke, Judge Pohl’s decision is Exhibit A.

12 Responses

  1. You do admit that “attacking” a civilian object (like a vessel or aircraft) in the theatre of an armed conflict, at least, and that is not a lawful military objective would be a war crime.  It would not have to be a “grave breach” to be a war crime, since any violation of the laws of war by civilians or military personnel is a war crime.
    Could he have made a proper argument that some hijackings are “attacks”? some hazardings are “attacks”?  I wonder, but apparently from your post he did not get even close to such a claim.

  2. Jordan,

    Of course attacking civilians on a vessel and attacking a civilian vessel are war crimes. Al-Nashiri is facing those charges, and they are certainly proper (assuming, as we both reject, that there was an armed conflict between the US and AQ at the time). Their presence in the charge sheet just foregrounds the absurdity of the additional hijacking charge.

  3. I thought the laws of armed conflict required adherence to the principle of necessity and proportionality.
    In the language: “Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective …”

    Wouldn’t the above (as worded) indicate a breach of the LOAC? 

  4. Liz: as agreed above, the laws of war would have to apply.  Then one could ask whether something like “endangers” the “safe navigation” is entirely too broad to be a viable criminal proscription. Thereafter, one might ask if it has anything to do with a violation of the law of war.
    What would “seizes … control” have to do with the laws of war?  impermissible taking of the use of property?  not “targeting” property? but perhaps an impermissible “attack” on property or those on board?  There is much ambiguity.

  5. Liz,

    It’s not that the SUA Convention doesn’t apply in armed conflict; it does. It just does not purport to create a war crime.

  6. Setting aside the time of war problem, why isn’t attacking a naval warship a “legitimate military target”?

  7. Even if we’re talking about the civilian oil tanker, why isn’t that a legitimate military target?  

  8. Sam,

    Count IX concerns the attack on the MV Limburg, not on the USS Cole. The Limburg does indeed seem to have been a civilian vessel.

  9. Your second question is a good one. Granting armed conflict, there is at least an open question about whether the MV Limburg was a military target. My own sense, though, is that it wouldn’t have been — it was carrying oil between Malaysia and Iran, which would seem to have no nexus to the supposed armed conflict between US and AQ.

  10. the laws of war would have to apply.

  11. But Kevin, if the attack had no nexus to the alleged armed conflict between the US and AQ — the existence of which we’re assuming for present purposes — then how is this attack a war crime?  Isn’t it at most a criminal act that has nothing do to with the war? 

  12. Sam: your last question is important when one considers what some int’l crim. tribs. have claimed was a need for a nexus between the “crime” and an armed conflict even though the “crime” occurs within the theatre of an armed conflict — which does not seem to represent customary international law and may not be preferable in any event. 
    Consider the example of rape in the theatre of war.  Rape has long been listed as a war crime during war (1863 Lieber Code, 1919 List of War Crimes, 1949 GC, etc.).  Rape has been (e.g., in Bosnia-H) and is being used in the DRC as a “weapon” of “war.”  But is rape that is seemingly unconnected in any way with war a war crime?  Some prefer that it not be, but I do not agree that customary int’l law has provided an answer yet.  In any event, this is a good question — worthly of future efforts to identify normative content and contours.
    With respect to whether there was a “targeting” or an “attack,” when there was a hijacking or take over of a vessel, in a real war there might be side issues whether HC No. IV, Annex, art. 23(e) is applicable or, as noted above, attacks had been made on the aircraft, vessel, or persons on board — or even if there was a purpose to take hostages (which is now outlawed in GC art. 34, etc.) but the charges would have to be written to reflect such alleged war crimes.

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