Not All Crimes are War Crimes

Nicole Barrett - Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia - is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, August 14, 2008: Those experienced with the law of war know that, when charges are brought before a military commission or war crimes tribunal, these courts must ask and answer several basic questions to see whether the law of war actually applies to the case. Did the alleged acts occur during war? If not, they are not war crimes. Was the alleged wrongdoer a combatant or a civilian? If a civilian, the law of war typically does not apply if a combatant was targeted; domestic criminal law does. If the wrongdoer was a combatant, were the victims also combatants? If so, seemingly wrongful acts, including killing, may be lawful under certain circumstances.

Such basic questions were front and center in the military commission proceedings of Mohammad Jawad at Guantánamo Bay this week. The government’s perplexing stance, however, is that these questions need not be asked or answered for Jawad’s case to proceed. In fact, the government seems to think it unnecessary to charge facts alleging a war crime in order to prosecute Jawad for one.

In some respects, you cannot blame the prosecutors for being confused, as the statute that they are relying on, the Military Commissions Act of 2006 (MCA), repeatedly misapplies the law of war. The MCA ignores the fundamental distinctions between the law applicable in law enforcement contexts, non-international armed conflicts, and inter-state conflicts and inaccurately implies that the law of war automatically applies to all global counterterrorist operations. In short, the MCA selectively borrows humanitarian law privileges without granting the corresponding protections.

Further, while the MCA says that it is consistent with the law of war, the statute proclaims several acts to be war crimes that have never been so designated. Several Guantánamo detainees have been charged with conspiracy. But the U.S. Supreme Court in Hamdan said that conspiracy is not a war crime. Similarly, hijacking and providing material support for terrorism – also recurrent on military commission charge sheets – are not historical war crimes, although the MCA suggests that they are.

With such uncertainty about what is and what is not a war crime, calling an expert in the law of war would seem a priority. Getting this expert to the hearing, however, was no easy matter. Jawad’s defense counsel, Major David Frakt, reports that the prosecution objected to Professor Madeline Morris’s designation as an expert despite the fact that she currently advises the U.S. Secretary of State, and has previously advised the Department of State, the Department of Defense and the Secretary of the Army on international law and law of war issues. When Professor Morris finally reached the courtroom yesterday, her affidavit already written but her status still in doubt, Judge Henley finally recognized her as an expert.

Professor Morris laid out the basics for why the military commission has neither personal nor subject matter jurisdiction over Jawad. Personal jurisdiction does not exist, she said, because MCA charges can only be brought against “unlawful enemy combatants,” and the commission has no way of knowing whether Jawad falls into this category. Under the Third Geneva Convention and Additional Protocol I, a person who takes part in hostilities is presumed to be a lawful combatant until he is found to be an unlawful combatant by a competent tribunal composed of more than one person. (See API of the Geneva Conventions, Articles 45(1) and 45(2), which the U.S. has officially recognized as customary international law and Article 5 of Geneva Convention III). Because Jawad never received such a determination — commonly referred to as an Article 5 hearing — the MCA does not apply. Prof. Morris pointed out that the Article 5 hearing held in Salim Hamdan’s case was invalid because it was based on a waiver by the defense, but POW rights under the Geneva Conventions cannot be waived.

Prof. Morris’s simpler argument was on subject matter jurisdiction. She effectively eliminated the only charge against Jawad by demonstrating that the facts underlying his attempted murder charge cannot be a war crime. The prosecution alleges that Jawad threw a grenade – a lawful weapon under the law of war – into a U.S. military vehicle in Kabul, Afghanistan carrying two soldiers and their translator – all lawful targets under the law of war. Because Jawad is accused of using a lawful weapon against lawful targets, he might have committed a domestic crime, but certainly not a war crime.

The prosecution, grasping at straws on cross-examination, tried a few arguments, but ultimately fell flat. They argued that things were different now because the commission was dealing with “new law,” mentioned that there were differing views on the law of war, and finally suggested that Jawad’s alleged act might be perfidy — one of the MCA offenses typically used for spying and sabotage — which they had not even charged in this case.

The Jawad commission reconvenes on September 25, 2008. The first decision made will be whether the commission should hear the case at all.