26 May The Non-Existent “Murder in Violation of the Law of War” — Redux
A couple of years ago, I blogged about how Salim Hamdan was prosecuted in a military commission for conspiring to commit the non-existent war crime “murder in violation of the law of war.” Hamdan was acquitted on that count, but the crime is starring again in the unconscionable prosecution of child-soldier Omar Khadr. That’s unfortunate in itself — but what is particularly unfortunate is that, according to the Vancouver Sun, Harold Koh and the State Department tried to get the charges dismissed but were rebuffed by the Department of Defense:
Officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr, Canwest News Service has learned.
The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.
Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate. Prosecutors said in the wake of the Bush administration they were prepared to take about 60 Guantanamo detainees to trial — among them the accused co-conspirators of the Sept. 11, 2001 attacks.
The Pentagon issued its 281-page Manual for Military Commissions on the eve of hearings April 28 to May 6 in the Khadr case after the U.S. Congress updated the Bush-era Military Commissions Act with legislation President Barack Obama said makes them fair. Prosecution and defence teams use the courtroom rules to present their cases, but a new manual was necessary to conform to the legislative changes in the 2009 act.
The failed bid to change part of law-of-war murder rule — as well as separate arguments insiders say took place over other rules — illustrates how the commissions remain a point of division in the Obama administration. Numerous appointees — and even Obama himself — were sharply critical of the tribunals after the Bush administration launched them as a key tool in its post-9/11 “war on terror.”
[snip]
Among those leading the charge against the contested murder segment was Harold Koh, Obama-nominated legal adviser of the State Department, who once wrote that the U.S. was part of an “axis of disobedience” along with North Korea and Saddam Hussein’s Iraq.
[snip]
U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.
“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”
As the article notes, and as Scott Horton discusses here, Koh and the State Department had an ulterior motive in opposing the crime — they are worried that it might come back to haunt the US’s drone program:
The pretext for demanding the draft-rule edit centred on concern about defending the legitimacy of Central Intelligence Agency drone attacks on terror suspects in Pakistan, one insider confided.
According to this official, it was feared that aspects of the commission manual’s “comment” in the section titled Murder in Violation of the Law of War could be applied to the attacks. Key among the contested phrasing is a statement that says murder and some other offences rise to the level of war crimes if committed “while the accused did not meet the requirements of privileged belligerency” — which principally covers regular war law-abiding combatants.
Their fears are legitimate. The war crime doesn’t exist under international law regardless of whether the US pretends that it does. But the US would find it very difficult to argue that another country could not prosecute a CIA agent involved in a drone strike for “murder in violation of the law of war” given its willingness to prosecute Khadr (and apparently dozens of others) for the same crime.
Stay tuned!
P.S. It’s worth noting that four of the five “war crimes” Khadr allegedly committed do not actually exist under international law: murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, and material support for terrorism. The only one that does exist — though the charge sheet does not provide much information about what Khadr allegedly did — is spying.
P.P.S. For a very interesting discussion of “murder in violation of the law of war” as municipal, common law offense, see my friend John Dehn’s article in the Journal of International Criminal Justice here.
Kevin
I think this link may work better to get to John’s article
http://jicj.oxfordjournals.org/cgi/content/full/mqp015v1
Thanks Kevin and Chris for the article plug. In essence, my article argues that “murder in violation of the law of war” is a domestic, “common law of war” offense applied extraterritorially. For those suspicious of that argument, the existence of this undoubtedly federal common law was recognized post-Erie in Ex parte Quirin. The article did not reach the question of whether applying this municipal law extraterritorially is consistent with international law. I believe it could be under the protective or passive nationality principles, depending upon their fundamental validity and/or potential scope. My draft article on that issue awaits further attention.
Response…
Perhaps “wilful killing” is preferable, since it is a grave breach of the Geneva Conventions. Confusion exists because of mistatements in Quirin and by some authors. A person who has no right to engage in social violence during an armed conflict, an unprivileged fighter [certainly not a “belligerent” or “combatant” as those terms are understood under the laws of war] has no combatant immunity for what would otherwise be a lawful targeting by a combatant and can be prosecuted under domestic law for murder — but this is not a war crime, so this circ. does not create “murder in violation of the law of war.” Otherwise, there are many circ. where killings can be murder and a war crime.
Jordan
“Murder in violation of the laws and customs of war” was charged in a number of Civil War cases, notably that of Henry Wirz, commandant of Andersonville prison. Lack of combatant immunity does not appear to have been an element of the crime. Rather, the charges involved the killing of prisoners. Treacherous killing of adversaries bearing a white flag was charged as “murder in violation of the laws of war” in the case of the Modoc Indians. For cites and a couple more examples, see http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA517846&Location=U2&doc=GetTRDoc.pdf (pages 11 to 13).
For more on the supposed war crime of “Murder in Violation of the Law of War,” and the new Manual For Military Commissions, check out Prof. David Frakt’s Huffington Post piece of April 29, 2010. http://www.huffingtonpost.com/david-frakt/new-manual-for-military-c_b_557720.html He was formerly lead defense counsel with the Office of Military Commissions, He writes that three different military judges in three separate commissions at GTMO (Hamden, Jawad & al Bahlul) (Frakt was lead defense counsel for the last two) rejected the government’s argument that “Murder in Violation of the Law of War” under the 2006 MCA is simply any killing by a person whose status is that of an unprivileged belligerent, whether or not the killing itself violates IHL. Each judge “ruled that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war.” Frakt testified before a subcommittee of the House Judiciary Committee in the run up to the 2009 MCA, and argues that “Congress was well aware of these rulings when it enacted the 2009 MCA — I specifically mentioned them in my testimony — but left the definition of “Murder in Violation of the Law of War” unchanged, reflecting their comfort with these judges’… Read more »
Jordan, All agree that “willful killing” of a person protected from attack by international humanitarian law (IHL) is a war crime. Every knowledgeable IHL scholar also well understands what you state regarding the consequences of engaging in armed hostilities without the combatant’s privilege. However, the MCA offense very clearly intends to punish those who murder without privileged belligerent/combatant status. You need only read the statute and its commentary (or my article’s analysis of both) to understand this clearly. One must look past the label of the offense to its substance in order to accurately analyze it. Confusion exists because many scholars have not taken care to fully understand the basis of Quirin or to place the decision in its historical context. Quirin was decided before the Nuremberg IMT and cited to Winthrop as a primary source of authority. Customary and conventional IHL of that era did not require or impose individual punishment of enemy soldiers for a violation of the laws of war. There were no international “war crimes” at that time. Thus, it is impossible for Quirin to have mistakenly identified a “war crime.” It found that the charges against the saboteurs were fairly within the “common law of war”… Read more »
As to the PS, Judge Allred clearly rejected Hamdan’s claim that material support was not an offense traditionally considered a violation of the law of war.
To MKS,
The U.S. Dept of Justice apparently does not share your view of the matter. See the STATEMENT OF DAVID KRIS ASSISTANT ATTORNEY GENERAL
BEFORE THE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON TERRORISM AND HOMELAND SECURITY UNITED STATES SENATE presented July 28, 2009.
http://judiciary.senate.gov/hearings/testimony.cfm?renderforprint=1&id=4002&wit_id=8156
“There are two additional issues I would like to highlight today that are not addressed by the Senate bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant likelihood that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby threatening to reverse hard-won convictions and leading to questions about the system’s legitimacy. ….”
MKS,
He did, indeed. But that doesn’t mean his decision was correct.
Based on the article in today’s N.Y. Times that Julian Ku & Ken Anderson have blogged about on OJ, it seems clear that any pretense by the U.S. government that “murder in violation of the law of war” is actually a war crime has been abandoned. Apparently the need to protect CIA drone operators from war crimes allegations tipped the scales, as the Times articles reports: “In recent months, top lawyers for the State Department and the Defense Department have tried to square the idea that the C.I.A.’s drone program is lawful with the United States’ efforts to prosecute Guantánamo Bay detainees accused of killing American soldiers in combat, according to interviews and a review of military documents. [snip] The United States has argued that because Qaeda fighters do not obey the requirements laid out in the Geneva Conventions — like wearing uniforms — they are not “privileged combatants” entitled to … battlefield immunity. But C.I.A. drone operators also wear no uniforms. [snip] [T]he Obama administration legal team confronted the issue [of the legality of CIA involvement] as the Pentagon prepared to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar… Read more »
Charles, To be clear, my article and the comment above do not “defend” the U.S. position or drone policy. They offer a careful analysis of the law. Whether that law is good current domestic policy was not my concern. I do not favor or disfavor that policy in my article. The article seeks to uncover the original basis of the punishment of law of war violations in U.S. law and how it is reflected in Quirin, and in past and present U.S. law and practice. As is clear in my article, your analysis of the statute neglects the fact that in the MCAs of 2006 and 2009 Congress already punishes unlawful killing of those protected by the laws of war (civilians, POWs) or a combatant adversary by perfidy, etc. elsewhere. One must, “read the statute, read the statute, read the statute” in context, not in isolation. Trying to read the statute broadly and without reference to these other crimes, as both you do and Hamdan’s military commission judge did, is problematic. In the context of the MCA, the commentary interpretation of this offense is a fair and probably more accurate one. It is also entitled to some (not conclusive) weight in later… Read more »