29 Jan Thoughts on the CMCR’s Questions in al-Bahlul
As Bobby Chesney noted at Lawfare a few days ago, the Court of Military Commission Review (CMCR) has issued the following order in al-Bahlul:
Upon consideration of the record of trial and pleadings of the parties and amicus curiae, the following issues are specified and oral argument is ordered:
I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006). See Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).
II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?
ORDERED, that the Appellant’s brief on the specified issues is due on February 24, 2011 and the Appellee’s brief on the specified issues is due on March 11, 2011.
In this post, I want to offer a few thoughts on each issue.
Question One
In terms of the first question, the CMCR’s cite to footnote 40 in Hamdan says it all. The footnote mentions a number of international criminal sources — such as the ICTY’s decisions in Tadic and Milutinovic — for the proposition that joint criminal enterprise is a mode of participation in a crime, not a substantive crime such as conspiracy or material support for terrorism. JCE thus provides no support whatsoever for the idea that conspiracy or material support are substantive war crimes.
Indeed, as footnote 40 somewhat obliquely notes, the Nuremberg Military Tribunals specifically relied on the notion of “being connected with plans or enterprises” involving the commission of a crime — Control Council Law No. 10’s version of JCE — to reject the argument that conspiracy to commit a war crime was itself a war crime. Telford Taylor’s OCC alleged such conspiracies in its first three multi-defendant cases: Medical, Justice, and Pohl. In the Medical case, for example, Count 1 of the indictment was entitled “The Common Design or Conspiracy” and alleged in paragraph 1 that “all of the defendants herein, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together and with each other and with divers other persons, to commit war crimes… as defined in Control Council Law No. 10, Article II.” The other two indictments contained nearly identical language.
The defendants filed motions to dismiss the conspiracy charges in all three cases. The Committee of Presiding Judges responded by holding a joint session on the conspiracy issue on 9 July 1947 — the first and only joint session that involved oral argument. Telford Taylor argued on behalf the OCC. Carl Haensel, who represented Joel in the Justice case and Loerner in the Pohl case, argued on behalf of the defendants.
I discuss the oral argument at length in Chapter 12 of my book. Suffice it to say that Taylor and the OCC suffered a crushing defeat, with the Medical, Justice, and Pohl tribunals each dismissing the conspiracy counts on the ground that — in the words of the Justice tribunal — they had “no jurisdiction to try any defendant upon a charge of conspiracy considered as a substantive offense.”
Despite the dismissal of the conspiracy counts, the OCC was not quite ready to abandon the idea that it was criminal to conspire to commit war crimes. It thus tried a new tack in four later cases, folding such accusations into counts that alleged conspiracies to commit crimes against peace. Count 5 of the Farben indictment, for example, alleged that the defendants had participated in “a common plan or conspiracy to commit, or which involved the commission of, crimes against peace (including the acts constituting war crimes… which were committed as an integral part of such crimes against peace) as defined by Control Council Law No. 10.” Similar language appears in the Krupp, Ministries, and High Command indictments.
The OCC’s new approach was no more successful than its initial one. As the High Command tribunal pointed out when it dismissed the charges, conspiracy to commit war crimes functioned in the new omnibus count as a mode of participation, not as an substantive crime, because the count alleged the actual commission of such crimes. The conspiracy allegations thus added nothing to the counts that alleged the defendants were responsible for war crimes, because they were “connected with plans or enterprises” involving their commission.
Question Two
I have no idea what the specific answer to the second question might be, but I think it is a bad sign that the CMCR is asking the question at all. To begin with, regardless of what American military commissions might have done during the Civil War or in the Philippines, I fail to see how “aiding the enemy” could be considered a war crime under the “law of nations.” No IHL convention prohibits aiding the enemy, and no international tribunal has ever criminalized, much less prosecuted, such assistance. Why would they? The most obvious situation is when a national of State A aids State B while it is at war with State A. In such a situation, “aiding the enemy” does not violate State A’s obligations to State B during the armed conflict — like treason, the aiding is a purely domestic matter for State A.
The issue is not appreciably more difficult when a national of State C aids State B while State B is at war with State A. To be sure, the law of neutrality once imposed a duty on State C to remain impartial in such a situation, but that does not mean the nationals of State C had the same duty. Indeed, as Elizabeth Chadwick has noted, “[a] crucial aspect of the operation of the law of neutrality was that the neutral duty not to supply war material to a belligerent did not necessarily extend to private commercial transactions by private citizens.” Besides, even if the same duty of neutrality did apply equally to State C and the nationals of State C, that would still not mean that a violation of the duty was a war crime. Are there any non-American examples of such violations being prosecuted as war crimes, as opposed to violations of the domestic law of the aggrieved state? I don’t know of any — much less sufficient state practice to constitute the “law of nations.”
More importantly, though, even if “aiding the enemy” does somehow qualify as a war crime, and even if that war crime is somehow not “limited to those who have betrayed an allegiance or duty to a sovereign nation,” it would still be illegitimate for the CMCR to rely on the war crime of aiding the enemy to hold that material support for terrorism is a war crime. The law of neutrality applies to states, not to non-state actors, and it governs international armed conflicts, not non-international ones. The only thing “aiding the enemy” and “material support for terrorism” have in common, therefore, is that they both involve individuals acting in a manner inconsistent with a government’s national-security interests. Any attempt by an international criminal tribunal to infer the latter “war crime” from the former would thus clearly violate the principle of legality, a critical aspect of which is that — in the Rome Statute formulation — “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy.” I am not a constitutional-law scholar, but I am confident that the “fair notice” requirement of the Fifth Amendment would foreclose the analogy between aiding and material support, as well.
[…] at Opinio Juris, Kevin Jon Heller has posted some thoughts on the two questions that will be addressed at oral argument by the CMCR’s en banc proceeding […]
I wrote a student note a little while back that directly touched on the first question. In Part III of that note, I directly tie the validity of JCE as a liability theory under IHL to the rejection of conspiracy as a crime or liability theory under IHL.
Regarding the second question, Mr Heller misses the issue and therefore his conclusion is dead wrong. The issue as CMCR has framed it favors the US government’s position that MST is a war crime. Mr Heller pays no attention to US history and jurisprudence as a legitimate (even sufficient) source for the definition of war crimes (regardless of what American military commissions might have done during the Civil War or in the Philippines, I fail to see how “aiding the enemy” could be considered a war crime under the “law of nations). The US Constitution gives Congress the authority to define and punish the law of nations, and w/ the MCA of 2009 it has done exactly that regarding MST and aiding the enemy. Under the MCA, aiding the enemy is a loyalty offense, but MST is not. CMCR’s question relates to US practice during the Civil War and the Phillipines insurrection. Aiding the enemy was prosecuted by military commission during that era, and was not necessarily a loyalty offense. The question CMCR is trying to get an answer to is- since aiding the enemy under the MCA is a loyalty offense, and the US during the Civil War and Phillipines prosecuted it in military commissions without a loyalty element, what happened to the charge of aiding the enemy absent a duty of loyalty to the US. THe Us government’s answer is, or at any rate should be: Material Support for Terrorism. That’s where this question from CMCR is heading. Mr Heller’s thoughts on the internationalist approach to aiding the enmy are nice, but miss the point entirely. It’s not his fault of course. Most folks in his position dismiss entirely US history and jurisprudence as a legitimate, even sufficient in the American context, source of the law of armmed conflict. CMCR is signalling that it thinks otherwise.
Must take back part of that. Mr Heller thinks the fact that CMCR is asking the question whether aiding the enemy historically requires a loyalty element is a troubling development. From the perspective of someone who thinks Material Support For Terrorism is not a war crime, he’s absolutely right.
Publius’s condescending response is erroneous in two respects. To begin with, he fails to address the non-retroactivity issue, which is critical given that the allegedly criminal MST in al-Bahlul took place well before Congress enacted the MCA. Publius appears to take for granted that any crime ever prosecuted by a US military commission can be prosecuted now without running afoul of the principle of non-retroactivity. But that presumes what it has to prove: namely, that the prosecuted crime was, in fact, a war crime at the time. “Aiding the enemy” was not a war crime under international law in the 19th century, and to the best of my knowledge Congress did not use its constitutional authority to define aiding the enemy as a war crime prior to the Phillipine military commissions. (Professor Glazier?) So the CMCR cannot simply say “aiding the enemy was once prosecuted without a loyalty element” and end its analysis there.
Publius also simply ignores the question of whether analogizing between aiding and MST would be constitutional. His idea of due process seems to reduce to “close enough.” I would hope that most readers take the Fifth Amendment’s fair-notice requirement more seriously than that.
re non-retroactivity, prosecutions by military commission during the Civil War and Philippine Insurrection of aiding the enemy absent a duty of loyalty to the US at a minimum demonstrate that the United States has regarded it was a war crime. Have events in the meantime overturned or eliminated that idea, to the extent that an individual in the late 20th/early21st century would not be on notice that aiding the enemy absent a duty of loyalty to the US is a war crime? Perhaps. This is precisely where Mr Keller’s internationalist ruminations apply, and seem s to be the question CMCR is asking.
re analogizing- leaving aside Mr Keller’s internationalist approach to stautory interpretation, besides noting that it may not be embraced wholeheartedly by a majority of CMCR or, when it comes to that, the US Supreme Court- that’s not what the MCA did at all. If (a biggish “if”) the Civil War and Philippine Insurrection prosecutions establish the idea that aiding the enemy absent a duty of loyalty to the US is a crime within the jurisdiction of a military commission, the MCA merely bifurcates the idea- aiding the enemy for those with a duty to the US, and MST for those without. Was this the wisest, cleanest way for two Congresses and two Presidents to capture the idea(MCA 2006 and MCA 2009 both include both charges)? Perhaps not, but sloppiness should not defeat Congress’ and the Executive’s plain intent: to update (not create) the traditional war crime of aiding the enemy, both for those with a duty of loyalty to the US and those without such a duty.
That’s “Mr Heller”, not “Mr Keller”. I apologize.
A key element missing from the Publius-Hellerviticus debate (sorry – couldn’t resist) is the fact that military commissions in both those conflicts sat as domestic law courts and so the mere fact that a commission prosecuted an offense during these conflicts says nothing about its status as a law of war offense. To my reading the U.S. has always restricted the crime of aiding the enemy to those who owed a duty of loyalty to the United States. This does not necessarily mean it could not include enemy aliens — in occupied territory even enemy nationals were considered to owe an obligation to cease providing support to their countrymen who remained engaged in conflict in exchange for enjoying the protection of the occupying power. But violations were punished under the authority of the “domestic” law being enforced by the occupation government, and not as violations of the law of war per se.
Kevin,
I don’t intend to take a position now. These are thoughts for further discussion, now or in the future. There seems to be a category of punishable law of war violations by civilians that has gone completely unaddressed in the modern era. This would include any potential law of war offense for supporting the enemy.
Going back to the Lieber Code, one sees many offenses that govern a civilian’s support to the enemy. These were not all loyalty offenses. Some were merely improper involvement in the hostilities. (Compare Art 95. “If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a war-traitor and shall suffer death.” with Art. 96 “A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country.”)
There is also a long history of punishing partisans for their activities. You would know better than I Kevin, but didn’t one of the subsequent proceedings specifically find certain activities by civilians under occupation to be lawfully subject to punishment under the laws of war?
Art. 70 of the Fourth Geneva Convention (protecting civilians) provides, “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.”
Note some things about this provision:
(1) It applies to persons protected under the convention, meaning civilians.
(2) It applies to acts before or during a break in the occupation, meaning during actual hostilities. Thus, the occupying power is not punishing as the de facto government for actions against it, but rather as a belligerent.
(3) It does not limit punishable conduct to “grave breaches of this convention,” indicating a broader category of punishable “laws and customs of war” applicable to civilians during hostilities.
Commentators tend to focus excessively on “grave breaches” or other conduct more clearly made a “war crime” by treaties, but the ICC Statute made clear that there were many punishable violations of the laws of war not included in the grave breach regime. If one takes a closer and longer look at the Lieber Code and subsequent state practice, there seems to be something missing from the modern literature on this topic.
Why would it be the case that civilians could be subjected to a direct attack (and killed) while taking a direct part in hostilities, but not prosecuted and punished if captured after doing so? No treaty of which I am aware has prescribed an offense for this. But is it really the case that civilians can’t be prosecuted and punished by a foreign enemy force in their country when they try to help their country’s cause by taking a part in or supporting hostilities against it? Surely they won’t be punished by their home state for any acts against a foreign enemy. To say that their punishment is only a domestic crime would mean nothing in this context. Just as surely, states are not so irrational as to leave themselves no remedy for such conduct outside of the context of occupation (they more certainly possess the power to punish such conduct during an occupation).
Neither the limitations on reprisals against the civilian population and individual civilians (in the first 1977 Additional Protocol) nor the prohibition on collective punishment would necessarily extinguish the ability to punish such conduct, if it still exists. They merely require regular criminal process before any punishment is imposed.
At bottom, there are certain things for which law of war treaties require punishment. “Grave breaches” of the Geneva Conventions are the most prominent example. These are what most commentators see as “war crimes.” There have traditionally been other things for which the laws of war permitted punishment, traditionally including various acts of civilian support to hostilities of a party to the conflict. We have lost sight of what these are and how they function in recent times.
John,
Who is arguing that civilians cannot commit war crimes? Of course they can, both during occupation and during armed conflict generally. But with the exception of the Lieber Code, I see nothing in any of the sources that you cite criminalizing aiding the enemy; those sources all address acts committed by civilians against the party with whom their country is engaged in armed conflict.
Mr Glazier wrote:
To my reading the U.S. has always restricted the crime of aiding the enemy to those who owed a duty of loyalty to the United States.
How in that case to explain UCMJ art 104, which does not include loyalty to the US as an element of the offense and also states that either a court-martial or military jurisdiction has authority over the offense?
In the case of a court-martial prosecution, I’d argue that the UCMJ’s traditional personal jurisdiction limitations restrict its application, but in the case of a miliitary commission it’s more complicated.
Of course, UCMJ art 104 is not the charge at issue here- the MCA’s MST charge is at issue- but the UCMJ’s treatment of the offense demonstrates that a duty of loyalty is not in every instance a required element.
Last sentence of first para above should read:
“…or military commission has jurisdiction over the offense?”
I think it would be very helpful to learn more about the historical usage. For example (w/r/t John Dehn’s post): How was article 94 of the Lieber Code construed? Did it result in military tribunal prosecutions for anyone who did not (in the words of the CMCR) “betray[] an allegiance or duty to a sovereign nation”? If so, under what circumstances? Similarly, for “publius,” is there any basis for concluding that article 104 of the UCMJ has been construed to permit courts-martial proceedings against individuals other than those who have betrayed an allegiance or duty to the United States?
The reason for the court’s question is obvious: In every conflict, numerous civilians regularly and uncontroversially provide support of one kind or another to their own nation’s efforts in the conflict. That might be true, in fact, of many readers of this blog, depending on what constitutes the requisite “support.” (For example, I recently worked at DOJ, where my duties included, inter alia, providing legal advice about this armed conflict.) Yet we don’t ordinarily assume that such support for one’s country is either a violation of the law of war or otherwise punishable,, let alone punishable by military tribunal. Perhaps there are historical exceptions to this presumption — that appears to be what the court is inquiring about. Can anyone enlighten us on that question?
Thanks in advance.
Kevin,
I did not suggest that you were arguing that civilians could not commit war crimes. My point was about vague support for a potentially broader class of punishable law of war violations by civilians, some of which may have included conduct arguably within the MST offense. Prior to the Geneva Conventions, the laws of war merely permitted punishment of soldiers and civilians who violated it. For the first time, the Geneva Conventions required state parties to punish grave breaches. What effect that and later developments had on other punishable violations of the laws of war is not clear to me. What is clear is that some equate “grave breaches” to “war crimes” rather than “punishable violations of the laws of war.” By standard international legal principles, treaties would only necessarily supersede prior inconsistent customary law unless otherwise stated. Requiring punishment of some conduct is not necessarily inconsistent with permitting punishment of other conduct.
Along the lines of what Marty said, you are arguing about the “aiding the enemy” label and I am not. The focus of my comment is the nature of the conduct covered by the material support charge, not the label. After all, nobody has been charged with “aiding the enemy.” The issue is whether or the extent to which the conduct made punishable by the MST offense might properly be considered a punishable law of war violation. I have no firm conclusion on that right now.
My earlier comment was to point out that there is at least some history and treaty language (with much more research required) behind the notion that civilians who take part in or substantially support their nation or its army in hostilities against a foreign force have been punished (or simply detained) by the foreign force for their conduct. Such punishment appears to have been, at one time, permitted by the laws of war and often took the form of reprisals (or more controversially, particularly by today’s standards, execution with no or sometimes minimal process). While reprisals would no longer be permitted, and regular criminal process required, I am uncertain of the precise boundaries or current validity of the idea that civilians who betray their status and engage in or support hostilities might be punished for a violation of the laws of war.
Let me rephase something I said above.
I said, “What is clear is that some equate “grave breaches” to “war crimes” rather than “punishable violations of the laws of war.”
I should probably have said is that some limit “war crimes” to “grave breaches” rather than “punishable violations of the laws of war.” The basic idea is that the modern understanding of what is a “war crime” has evolved from its origins.
For the record, I also want to note my disagreement with this comment, above.
“The law of neutrality applies to states, not to non-state actors, and it governs international armed conflicts, not non-international ones.”
The Supreme Court did not understand neutrality in that way at all. It once stated that neutrality required preventing one’s territory from being used for “any participation in a public, private or civil war.” The Three Friends, 166 U.S. 1, 52 (1897). Congress has consistently enacted “neutrality acts,” making it a crime for private persons to use the territory or ports of the U.S. to make war against foreign powers or peoples.
Indeed, the UK was required to pay the U.S. over $15 million for violating its neutrality obligations during the U.S. Civil War, by allowing British companies to build warships for the Confederacy. In this one case we have an example of state responsibility for a violation of neutrality perpetrated by a non-state actor. While “private commercial transactions by private citizens” may not have been affected by neutrality law, this does not exempt non-state actors who engage in or support hostilities against a state from the ambit of neutrality law.
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Response…
1) Dave Glazier is correct to note that there have been different types of military commissions, with different types of jurisdiction — a point evident in the Hamdan opinion of the S.Ct. (which also noted that a law of war milt. comm. can only prosecute violations of the laws of war).
2) Aiding the enemy as such is merely a crime against the state, a so-called victimless crime, a non-extraditable pure political offense. It is not a war crime.
3) However, “terrorism” is proscribed in certain laws of war (systematic terrorism in the 1919 List provided by the Responsibilities Commission; terrorism in Article 33 of the Geneva Civilian Convention; and acts of violence the primary purpose of which is to spread terror among the civilian populaiton in Article 51(2) of Geneva Protocol I, which reflects customary international law in an international armed conflict such as that in Afghanistan). See also http://ssrn.com/abstract=1583437
4) “Material support for terrorism” might be prosecutable if there is proof of complicity or aiding and abetting terrorism, at least in the context of an international armed conflict. There should be no reasonable question whether complicity is a separate form of criminal responsibility under international law. See, e.g., Rome Stat. of the ICC, art. 25(3)(c). Concerning JCE type responsibility, see also id. art. 25(3)(d), which I assume was meant to reflect customary international law by the 160 states that met in Rome.
Response…
I sent in a comment earlier that is “awaiting”!