Crimes of War

May 17, 2002

Kenneth Roth,
Executive Director, Human Rights Watch, and a former federal prosecutor in the U.S. Attorney's Office for the Southern District of New York
Interview by Anthony Dworkin

In principle, I don’t object to conspiracy charges. I know that there’s an argument that conspiracy supposedly hasn’t been a part of humanitarian law, that it’s more an American invention. But I don’t think that there’s any intrinsic reason why that should be the case. So long as conspiracy is defined properly, I don’t object in principle to people being charged with conspiracy. But my understanding of what that would mean is that for a prosecution to succeed a suspect has be to be shown to have joined a criminal enterprise knowing of its criminal purpose, and with the intent of furthering its criminal objectives. Clearly mere membership isn’t sufficient. Simply doing something that de facto advances a criminal purpose, without demonstration of an intent to join in the enterprise and further its purposes, would be insufficient as well.

With regard to the Guantanamo detainees, the danger is of inferring the requisite intent from mere participation in the armed conflict in Afghanistan. For example, there are many forces that may have joined with the Taliban simply to defend an Islamic government from the Northern Alliance, which does not necessarily imply active support for al Qaeda’s alleged plans to kill civilians. Similarly, you theoretically could have joined al Qaeda without the intent of furthering its alleged crimes against civilians, but simply to be a member of the foreign brigade assisting the Taliban. Many of these people were really just Pakistanis who crossed the border to help in a war to defend Islam. At least it remains to be shown in any given case that the suspect conceived of himself as actively joining a conspiracy to kill civilians.

So what would it take to demonstrate this kind of intent? 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 – there are a variety of activities which would directly benefit the external war against civilians, and the committing of acts of terrorism – those would certainly qualify. Those are the most straightforward cases, assuming you accept the basic principle that conspiracy is a legitimate crime. The more difficult questions arise with regard to two other sets of cases. One is mere participation in armed conflict pre-September 11, and then there are a separate set of questions as to whether mere participation in armed conflict post-September 11 is sufficient to indicate membership in a criminal conspiracy. And even there, I think one has to recognize that people can have mixed motives, it’s quite possible for people to have come even after September 11 simply to defend an Islamic regime without necessarily being there to advance al Qaeda’s terrorist plans.

With regard to those who have been through al Qaeda training camps – you could theoretically go to an al Qaeda training camp, and be trained in classic infantry techniques and be sent to the front line north of Bagram to hold off the Northern Alliance. I think in that circumstance you would be hard pressed to demonstrate an intent to join a conspiracy to attack civilians. The flip side of this, though, 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 for that matter. And in that case, 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. Even though you may not have been activated at a given moment, if you have consented to be activated at some stage, that goes beyond mere membership.

The critical issue is intent. To simply be a member of al Qaeda doesn’t in and of itself add up to criminality, because we know a significant number of the al Qaeda members did nothing more than go to the front line and try to defend the Taliban. And while none of us terribly likes the Taliban, I’m not aware that that violates any international law. The Taliban themselves committed atrocities, but I think we have to assume absent any specific proof that somebody sitting on the front line facing Northern Alliance trenches was not engaged in war crimes. So I think you have to accept that there can be a category of al Qaeda members for whom you can’t impute a criminal intent just by virtue of that membership. But if there is something in the activities of the member that demonstrates that in fact they were signing on not simply to a classic war in defence of the Taliban, but rather to efforts to attack civilians – and there are various forms in which that intent can be manifested – then those people are fairly prosecuted, even if they themselves didn’t take part in a particular criminal attack.

I don’t think that there’s a principled human rights objection to a pure conspiracy prosecution so long as one can impute intent not simply from mere associational activity, but something that demonstrates an active joining purposes around a criminal cause. But the bottom line is you do need individualized proof of that – a mere demonstration of status is not going to be sufficient, and I think it’s that individualized proof that seems to be in short supply. So to admit criminal conspiracy prosecution doesn’t necessarily solve the problem. Because I think I would certainly object to conspiracy prosecutions that are based simply on the fact that a foreigner had taken up arms in Afghanistan or simply that a foreigner had attended a training camp, unless it could be shown that the only purpose of the training camp was to train terrorists.

With regard to the administration’s statement that it can detain suspects until the end of hostilities – if all we’re talking about is the end of active hostilities in Afghanistan, then that’s not a complicated question. Whether they are POW’s or unlawful combatants, if the only relevant war is the war in Afghanistan, at some point we’ll know that that’s over with and they all should be released, unless they’ve been prosecuted. The more difficult thing is if the relevant war is said to be the war against terrorism. There I think the key is that we not understand war in rhetorical terms – the way we would speak of the war against drug trafficking, or the war against the mafia – but that it involve actual armed conflict.

If there is actual armed conflict outside of Afghanistan, one may be able to make the case that continued detention is warranted. But at some point the war against terrorism is going to become purely rhetorical, and should then 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. This has consequences not only for the detention question, but also for issues of when it’s legitimate to kill a suspect. Because if there is a real armed conflict taking place, the combatant’s privilege allows you to shoot your opponents, as long as they’re not in custody. But if it’s a mere rhetorical war, you have no right to shoot to kill – you have to stick to law-enforcement means.

To qualify as armed conflict, would there have to be continuous fighting? These are judgment calls: it doesn’t have to be a continuous conflict, but at some point, and I can’t say precisely when that is, one has to say that whatever threat is posed is not different in kind from the threat posed by, say, drug trafficking. I think the best test of appropriateness of conduct in the war on terrorism is to simply translate the same activity to the war on drug trafficking and ask whether you would be comfortable with it. Drug trafficking is a continuous threat but I don’t think anybody is advocating simply shooting to kill your corner trafficker, having declared a rhetorical war. Similarly, one can’t just pick up drug trafficking suspects and hold them indefinitely until drug trafficking stops.

Even if we postulate that the war on terrorism poses a greater threat – and all you can do is postulate that (in fact I think probably drug trafficking has many more victims, but none the less, the terrorist acts are more spectacular, and I can understand the government taking it seriously in a different kind of way) – I don’t think we should go too far down the line of treating it as a real war post-Afghanistan without fairly regular manifestations of armed conflict. If you assume that anything that you would recognize as armed conflict ends with Afghanistan, and thereafter you are facing a violent criminal threat but one that is difficult to characterize as war, at some point you have to move beyond the rhetoric and ask whether one is creating a dangerous exception to ordinary criminal justice guarantees.

Prosecution is always the preferred option – if people are genuinely plotting war crimes or crimes against humanity, every effort should be made to prosecute them. The objection is to a policy both of not prosecuting, but also not releasing them. And once you are no longer in a genuine armed conflict, that becomes a valid objection. The one alternative open to the US of course would be to derogate from its human rights responsibility under the International Covenant on Civil and Political Rights (which specifies in Article 9 that "anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.") Under Article 4 of the Covenant, you can derogate if it is claimed – through a formal letter to the Secretary General of the United Nations – that you are facing a public emergency threatening the life of the nation. That is a very high burden to meet, and one that the United States has not claimed.