Crimes of War

May 17, 2002

Introduction
Introduction and interviews by Anthony Dworkin

As of May 17, 2002, the United States military was holding 384 detainees at Guantanamo Bay, Cuba, in connection with its campaign against terrorism. At least 200 more captives were being held in Afghanistan, with the likelihood that many of them will be transferred to the Guantanamo base when construction of the new prison there, known as Camp Delta, is completed.

As the Afghan military campaign winds down, the administration appears to be struggling to determine what to do with these captives. At first, the preferred option was apparently to prosecute senior al-Qaeda members before military commissions, as authorized by President Bush's Military Order of last November, and under procedures spelled out in the Military Commission Order No. 1, issued by the Secretary of Defense on March 21 of this year.

However, there are indications that it has been difficult for the military to assemble the evidence it would need for conventional war crimes prosecutions. In the last few weeks, officials have been quoted in news reports as saying that they are considering a way to prosecute detainees without specific evidence that they engaged in war crimes. As reported in a story in the New York Times on April 20, the administration is weighing the announcement of a legal doctrine that would allow suspects to be indicted for membership of groups that routinely carried out actions in violation of the laws of war – in effect, for joining a conspiracy to commit terrorist acts.

At the same time, government officials have continued to claim that some captives could be held without trial, or after being tried and acquitted, for what seems likely to be an extended period.

As part of our continuing coverage of the aftermath of September 11, the Crimes of War Project has asked a group of legal experts from a variety of backgrounds to analyze the significance of these developments. In particular, we asked whether there was a legal foundation to the proposed conspiracy charges; whether the United States had solid legal authority for detaining suspects beyond the end of hostilities in Afghanistan; whether the rules for the military commissions met accepted international legal standards; and more broadly, whether US proposals regarding the detainees were consistent with principles of justice and fairness.

Is Membership of al-Qaeda a Crime?

There is a long history of conspiracy charges in US criminal law and all our experts agreed that in principle there was no objection to using some form of conspiracy indictment against the Guantanamo prisoners. However, the experts we consulted were unanimous that there was one crucial factor that would determine whether any conspiracy prosecution was legally acceptable: it had to be shown not merely that a defendant was a member of a criminal organization, but that he had joined the organization with the intention of furthering its criminal purposes.

The requirement to prove individual criminal intent is now a central part of the US legal treatment of conspiracy. As Aryeh Neier, President of the Open Society Institute and former executive director of the American Civil Liberties Union and Human Rights Watch, put it: "It’s not enough to be a member of the criminal organization, you have to have knowledge of the crimes that were committed or that are to be committed, and have the intention of being a member of the conspiracy for those purposes."

This standard was laid down by the United States Supreme Court in their rulings on a series of cases arising out of the 1940 Smith Act (properly known as the Alien Registration Act). At first – in the 1951 case Dennis v. United States – the Court upheld the conviction of eleven Communist leaders on the grounds of membership alone; it agreed that by holding senior positions in the party, they could be said to be supporting an international conspiracy to overthrow the government of the United States. However subsequent Supreme Court rulings added the additional requirements that, in Neier’s words, "you have to know about the conspiracy and have the intention of the acts which were attributed to the conspiracy." (For more information about the Smith Act cases, see this recent article by Joanne Mariner of Human Rights Watch in the online journal Writ).

From a British perspective, Major General (Retired) A.P.V. Rogers, currently a Fellow of the Lauterpacht Research Centre for International Law at Cambridge University, pointed out that "the notion of individual criminal responsibility is firmly entrenched in many legal systems." To observe this principle, he argued, "It would not suffice merely to prove that the accused is a member of a group that has taken part in criminal activity. It is necessary to prove that the accused has participated in that activity in some way."

Rogers also observed that the Rome Statute of the International Criminal Court addresses the question of a war crimes committed by a group of persons acting with a common purpose. In his words, Article 25 of the statute requires that, for an individual member of the group to be liable to prosecution, the individual’s contribution "must be intentional and be made with the aim of furthering the criminal activity of the group or… made in the knowledge of the group’s intention to commit the crime."

The Nuremberg trials after World War II have been mentioned by some commentators as a possible precedent for conspiracy charges. But the precedent of Nuremberg does not clearly support conviction based simply on organizational membership. The London Charter, which set the terms for the tribunal, made membership in "criminal organizations" itself a crime, and the tribunal later determined that the Leadership Corps of the Nazi Party, Gestapo and SS were such organizations. However, as Professor Michael Schmitt, Director of the Executive Program in International and Security Affairs at the George C. Marshall Center for Security Studies in Germany, pointed out, "The tribunal elected not to convict on that basis alone, instead focusing on the criminal conduct of the accused." Schmitt concluded: "Whether mere membership in an organization constitutes a violation of the ‘laws of war’ is highly debatable."

What then would constitute additional proof that a member of al-Qaeda intended to contribute to the organization’s criminal acts? All our experts agreed with the argument of Kenneth Roth, a former federal prosecutor and now Executive Director of Human Rights Watch, that "mere participation in the armed conflict in Afghanistan" would probably not be sufficient – because people might have joined up to fight simply to help defend an Islamic regime. Roth argued that a clear instance of conspiracy would be "if you’re a member of al-Qaeda, and if you can be shown to be helping in its objectives of attacking civilians, be it by training people in terrorist techniques, or dealing with the logistics, or supplying arms, or anything of that sort."

Undergoing some forms of training might also be sufficient to indicate intent, our experts suggested. According to Schmitt, "training toward a particular act, or type of act, that would be a crime against humanity or a war crime" might well count as a step toward commission of that act – for instance flight training could be an indication of intent to hijack an airplane. Roth added, "You could go and be trained in bomb making techniques or in various activities that would promote terrorism and then be sent off to be a sleeper cell in Malaysia or Indonesia or Germany…if it’s understood at some stage that you will be called upon to engage in attacks against civilians, I think it’s fair to say that you’re a member of a criminal enterprise." However, he cautioned that some people who went through al-Qaeda camps might simply have been trained in classic infantry techniques, unrelated to the commission of war crimes.

Another issue raised by the notion of conspiracy charges is whether such offences are properly subject to trial by a military tribunal. President Bush’s Military Order of November 13, which gave authorization for the military commissions, found that the terrorist attacks of September 11, because of their scale, had created a state of armed conflict between the United States and al-Qaeda and its backers. Assuming that this argument is valid (it has been discussed in a previous Expert Analysis, Terrorism and the Laws of War, and is explored further below), the commissions would have jurisdiction over violations of the laws of war committed in connection with the conflict. (The commissions might have jurisdiction over crimes against humanity even outside a state of armed conflict, as Schmitt pointed out, since these are generally understood to come under the broad heading of "the laws of war", and the commissions have been stated to have jurisdiction over violations of the laws of war.)

Aryeh Neier argued that the apparent intention of the administration to charge the detainees with belonging to an international terrorist conspiracy represented a move away from the framework of the laws of war. Even if they could be shown to have the intention of committing acts of terrorism, he said, this conspiracy would not be sufficiently "related to the actual hostilities" to fall properly within the jurisdiction of a military court. (Nor would most terrorist actions, apart from those on the scale of September 11, be easily classifiable as crimes against humanity.) Neier argued that the administration was following an essentially opportunistic policy – an approach that he characterized as "Choose one from column A, and one from column B, and whatever is most harmful to the people who have been apprehended is what we’re going to go with."

For How Long Could the Detainees be Held?

On March 28, the US Defense Secretary Donald Rumsfeld suggested that detainees who had not been tried, or those who had been tried and acquitted, might nevertheless be kept in detention "for the duration of the conflict". Asked how he would define the end of conflict, he said it would be "when we feel that there are not effective global terrorist networks functioning in the world that these people would be likely to go back to and begin again their terrorist activities."

In the past, some administration officials have speculated that the war on terrorism may last for decades. By contrast, the British commander in Afghanistan, Brigadier Roger Lane, said on May 8 that the battle against the Taliban and al-Qaeda in Afghanistan was "all but won".

All the experts we spoke to agreed that the United States was entitled to hold the prisoners while active hostilities continued. This principle is recognized in the Third Geneva Convention and the First Additional Protocol, and is an established part of customary international law. However, once hostilities are determined to have ended, Schmitt explained, the only ground for continuing to detain captives would be if they were awaiting trial for criminal offences. Even then, the International Covenant on Civil and Political Rights mandates trial "without undue delay".

The question, then, is what criteria should be used to determine when the conflict has ended. All our experts rejected the idea that an open-ended war on terrorism could be described as the continuation of active hostilities. Schmitt argued that the conflict would end once "al-Qaeda and Taliban forces in the field are no longer engaged in hostilities against US or allied forces, and al-Qaeda and the Taliban or any related forces no longer control any area in Afghanistan." He said that if remnants of al-Qaeda committed terrorist acts in the future, they would likely be criminal actions, not acts of war, unless they were backed by a state.

Roth said that if there was actual armed conflict outside Afghanistan, "one may be able to make the case that continued detention is warranted." However when the war against terrorism became a purely rhetorical war – like the war against drug trafficking – he said it should be treated "simply as an important law-enforcement objective, but one that does not give rise to the right to detain until it’s over."

One issue here is whether a situation of armed conflict can be said to exist between a state and an organization like al-Qaeda, particularly if that organization no longer enjoys the obvious support of a state (as al-Qaeda did in Afghanistan). This is clearly a gray area in international law. Rogers claimed that it was at least "arguable that, as a matter of law, a state or states can be involved in an armed conflict elsewhere with a specific organization such as al Qaeda." But he said that "a more general ‘war against terror’ would not suffice" to meet the threshold required for continued detention.

Anne-Marie Slaughter, J. Sinclair Armstrong Professor of International, Foreign and Comparative Law at Harvard Law School, also said that international law as currently understood did not authorize detention beyond the end of active hostilities in Afghanistan. However she argued that the problems thrown up by the current situation constituted "uncharted legal territory" and that the al-Qaeda members in detention were a new kind of enemy for whom new rules might perhaps be developed. "It might be possible to create a set of rules that would permit lengthy detentions, at least until al Qaeda itself as a particular threat has been essentially defeated," she argued, but it was essential that the development of new rules be carried out with the support of as many other countries as possible. If international law was to be moved forward, she said, it should be done "collectively and with care".

Some of our experts pointed out that the International Covenant on Civil and Political Rights permits derogation from a nation’s human rights obligations – in this case, the obligation to bring suspects to trial without undue delay – in times of "public emergency which threatens the life of the nation," as long as formal notification is given to the Secretary-General of the United Nations. As Roth argued, "that is a very high burden to meet, and one that the United States has not claimed."

Can Detainees Challenge the Jurisdiction of the Commissions?

These disputes – over the legal definition of conspiracy and the duration of possible detention – raise the question of what rights of appeal the detainees have. The military commission rules grant the right to review by a panel of military lawyers, and then by the Secretary of Defense and the President. There is no allowance for recourse to civilian courts (as there is in ordinary US courts-martial).

Our experts were divided on the merits of this provision. Slaughter said the apparent lack of civilian review meant the commissions would not comply with American constitutional values, but would instead be "a parallel system of military justice", where "those who are going to pronounce judgement are not independent in the way that term is normally understood." She said the lack of civilian review was particularly troubling because of the jurisdictional questions surrounding the tribunal process: "The whole point of these defendants is that the tribunals are going to have to establish that they are the enemy, which is the basis for a military justice system rather than a civilian one, and that determination itself should be subject to some civilian review."

Schmitt however argued that the rules for the commissions should be judged by prevailing international legal standards, rather than by provisions of the United States constitution. He pointed out that the relevant articles of the International Covenant of Civil and Political Rights required only that those convicted should be granted review "by a higher tribunal according to law" and that this review "must be meaningful, impartial and otherwise fair in fact." He argued that the Military Order setting up the commissions did not violate these principles. (Schmitt’s argument depends on the premise that the detainees do not qualify for POW status, and thus are not covered by the Geneva Convention requirement that they be tried under a system equivalent to ordinary US courts-martial.)

Apart from the standard post-trial review process, under US law anyone subject to detention is able to challenge the jurisdiction under which they are being held, through a petition of habeas corpus to federal courts. Clearly, there are several highly controversial aspects to the terms under which the Guantanamo prisoners are being detained. However it remains unclear whether they have the right of habeas petition to US courts, because the Guantanamo Bay Naval Station is not part of American territory (it has been held on lease from Cuba since 1903).

As Schmitt explained in a detailed examination of this question, the US District Court for the Central District of California ruled against a habeas application on behalf of the detainees in February, stating that "there are no legal or judicial precedents entitling them to pursue a writ of habeas corpus in an American civilian court". Although other cases are pending, Schmitt argued that this decision "represents sound analysis" and predicted that it was unlikely that any habeas petition would succeed.

Conclusion

Overall, our experts were divided in their assessment of the rules for the commissions, and the administration’s apparent policy on detention and indictments. Neier argued that the prisoners were being held "in a kind of legal limbo," and said that the administration appeared increasingly to be picking and choosing among different legal frameworks to give itself the maximum power over the people in its custody. By contrast, Schmitt claimed that the procedures and standards laid down so far "generally meet the requirements of international law". However, if the US government attempts to detain large numbers of suspected terrorists after the end of hostilities in Afghanistan, or proceeds to publish a definition of conspiracy based on membership of al-Qaeda alone, it will clearly face a series of awkward questions, even from some of those who are sympathetic to its overall approach.