Crimes of War

May 17, 2002

Professor Michael N. Schmitt,
Director of the Executive Program in International and Security Affairs at the George C. Marshall European Center for Security Studies in Garmisch-Partenkirchen, Germany.
Interview by Anthony Dworkin

On 13 November 2001, President George Bush issued the Military Order on the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." In it, he authorized the establishment of military commissions to try non-US citizens who are members of al Qaida, are involved in acts of international terrorism against the United States, or harbor such terrorists. It is useful to understand that the commissions are not expected to try each of the roughly 500 detainees (300 of whom at held at Guantanamo Bay Naval Station) in this conflict. On the contrary, all indications are that they will only try the most serious offenders.

The Military Order ignited a firestorm of controversy. Many critics urged that ad hoc military commissions were inappropriate fora for the trial of detainees suspected of involvement in the incidents of September 11th and other acts of terror. Frequently suggested alternatives included US federal and state courts, US military general courts-martial, foreign criminal courts, and an ad hoc criminal tribunal set up under the Security Council’s UN Charter Chapter VII authority. Even more controversial was the President’s finding that "[g]iven the danger to the safety of the United States and the nature of international terrorism…it is not practicable to apply in military commissions under the order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." Claims that the commissions would violate the detainee’s rights under US and international law were heard from many quarters. Concerns focused on issues ranging from the right to counsel and the standard of proof that would be required for conviction to the admissibility of evidence and appellate rights. Simply put, it was feared that trials by the military commissions would be, contrary to the express requirement of the Military Order, neither "full", nor "fair."

Understandably, anticipation grew as the Bush administration proceeded to draft the rules of procedure and evidence necessary to effectuate the order. Secretary of Defense Donald Rumsfeld issued those rules on 21 March 2002 as Military Commission Order No. 1, "Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War on Terrorism." It is my pleasure to comment, in light of the Commission Order’s issuance, on the following queries posed by the Crimes of War Project. As an introductory caveat, the reader must understand that the comments represent a legal analysis, not an analysis of the wisdom, or lack thereof, of proceeding in the direction chosen by the Bush Administration.

Are the rules for the military tribunals adequate to ensure fair trials for anyone brought before them?

The new rules have gone far to address many of the apprehensions generated by the President’s November order. They provide for commissions of three to seven officers, one of who must be a judge advocate. Acquittals are final, while a three-member panel (of which one member must be a judge) will review cases resulting in conviction. The Secretary of Defense will also conduct a review, and in certain cases the findings and sentence must by approved by the President. There are also provisions for seeking review of rulings on key issues during the course of the trial.

A presumption of innocence applies and an accused (the commission term for defendant) may only be convicted if 2/3 of the Commission members, after deliberation in closed conference, are convinced of guilt beyond a reasonable doubt. A unanimous decision of a seven member panel is required to impose the death penalty. Each accused will have a military defense counsel charged with defending his or her client "zealously within the bounds of law without regard to personal opinion as to … guilt." Civilian defense counsel may be retained by the accused or he may make a by name request for a different military defense counsel; in either case, the originally detailed military counsel may be permitted to remain on the case to assist. Defense counsel must be certified to practice law and be able to acquire a security clearance.

Prior to trial, the accused will be provided a copy of the charges and have access to evidence the prosecutor intends to introduce. The prosecution must also make any exculpatory evidence (that which suggests the accused is not guilty) available to the defense team. In order to mount a defense, the accused is entitled to obtain necessary witnesses, documents, investigative assistance, and any other support "necessary for a full and fair trial."

At trial, the accused has the right to remain silent; no adverse inference is permitted to be drawn such silence. His defense counsel may present evidence and cross-examine all prosecution witnesses. The presence of the accused is allowed throughout the trial unless he engages in disruptive behavior or sensitive evidence is to be disclosed (see discussion below); if he is not present for either reason, his detailed defense counsel is required to attend the proceedings to safeguard his interests. Trial proceedings must be interpreted into a language the accused understands; similarly, relevant documents must be translated if necessary.

Before determining whether such rules are "fair," it is necessary to identify the standard against which they are to be measured. Unfortunately, discussion on the issue has tended to confuse standards applicable to US criminal trials with those derived from international law for trials of alleged war criminals. It is entirely appropriate to apply US constitutional and statutory standards to criminal trials of terrorists in US federal or state courts; indeed, such trials have taken place in the 1993 World Trade Center and the 1998 US Embassy bombing cases, and the first trial in the 9/11 attack, that of Zacarias Moussaoui, will be held in federal court. It might even be necessary to apply most US legal standards to the war crimes trials of US citizens or to war crimes proceedings occurring in the United States. However, and by way of contrast, the commissions will: 1) only try non-US citizens; 2) take place outside the territorial boundaries of the United States; and 3) be limited to violations of the law of war.

The correct standards to apply are found in US law specifically applicable to such trials and in international law. The threshold question is whether military tribunals (the US commissions being one variant) are even authorized to conduct such proceedings. In fact, there have been thousands of war crimes trials by military tribunals through history. Most notably, military tribunals were used widely, and by a number of countries, following World War II. Certain of the tribunals were international in nature in that multiple countries participated. Overall, military courts tried nearly 2500 defendants in the European theatre (1600 by the US Army) and some 2800 in the Far East (excluding trials conducted by the Soviets and Chinese). Moreover, the post-war trials, particularly those conducted by the International Military Tribunal at Nuremberg, serve as an accepted source of much customary international law, such as precedent for the offense of crimes against humanity, and as the inspiration for a number of conventions on international humanitarian law (also labeled the "law of armed conflict" or "law of war"). There is little doubt that international practice has clearly established that military tribunals are appropriate, albeit not exclusive, fora for the trial of war criminal.

Authority under US law for the present commissions is found in the Constitution and the Uniform Code of Military Justice (UCMJ). Article I, section 8, of the Constitution grants Congress the authority to "define and punish … offenses against the Law of Nations" (international law). The authority to establish the commissions derives from Article II of the Constitution, which invests the President with executive power and appoints him Commander in Chief of the armed forces. Congress has specifically accepted the existence of military commissions and delineated the offenses which they may try in Article 21 of the UCMJ: "The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or the law of war may be tried by military commission, provost court, or other military tribunals." Thus, the existence of such commissions is also lawful under US legal norms.

The controversy over commissions has instead centered on their procedures and evidentiary standards. President Bush’s Military Order finding that it is not practicable to apply the legal standards of US district courts has generated much confusion. Even though the commissions’ rules of procedure and evidence go very far to meet these standards, the nature of the proceedings, as noted above, is such that US legal standards are generally inapplicable. Thus, the President’s finding was an announcement of policy, not an attempt to waive application of any particular norms of procedure or evidence.

Rather than domestic law, it is international law to which one must look when assessing Commission Order No. 1. It is certainly fitting to do so because the United States has repeatedly condemned the practices of military courts in other countries, often in cases involving the trial of terrorists.

The key source against which to measure the commission rules is the International Covenant on Civil and Political Rights (ICCPR) (the United States became a Party to the convention in 1992). Article 14 codifies such rights as a "fair and public hearing by a competent, independent, and impartial tribunal established by law," the presumption of innocence, notice of the charges, speedy trial, the right to counsel, freedom from self-incrimination, review "by a higher tribunal according to law," and the right to be free from subsequent trial for the same offense (the principle of former jeopardy).

Some commentators have suggested that the commissions lack independence or impartiality because they are established by the President and appointed by the Secretary of Defense (or his designee), both of whom are in the chain of command for military officers who serve as members, prosecutors and defense counsel. However, that is already the case with US courts-martial, which most commentators deem acceptable fora for the trials; indeed, the vast majority of the world’s military tribunals are set up in this fashion. Further, note that the Third Geneva Convention of 1949 (GC III) provides in Article 84 that prisoners of war are to be tried in the same courts (usually military tribunals) as members of the armed forces of the detaining power. Though the United States does not classify the detainees as POWs, it is the convention’s acceptance of military tribunals that bears on the issue at hand.

In gauging fairness under human rights law, the dispositive inquiry is not that of who participants in the commissions are ultimately responsible to in the chain of command, but whether they act independently and impartially in fact. Because the two relevant orders do not mandate dependency or partiality on their face, any suggestion that they will not is premature; it is only once commissions begin to operate that they can be objectively assessed.

Another criticism being heard is that the commissions do not comport with the requirement for expeditious trial. However, though it is not clear when the trials will commence, to date the detainees have only been held for a period measured in months, clearly not an excessively long period by global standards. More to the point, the detainees are either combatants or illegal combatants (also labeled "illegal belligerents") in an international armed conflict. The United States has characterized the detainees as the latter. Under humanitarian law, combatants, whether legitimate or not, may be held without trial until the cessation of active hostilities. This being so, the issue of the length of their detention only becomes ripe once hostilities cease. Of course, as every prosecutor and defense attorney understands, evidence becomes stale over time. Nevertheless, because the current detention is otherwise appropriate, reliability and availability is an issue for the commission to address when ruling on the admission or exclusion of evidence (based upon its probative value) and when determining whether the defense can mount an adequate defense, as it is entitled to do by both Commission Order No. 1 and the Covenant.

As a final note, derogation (non-application of certain provisions) from the ICCPR is permitted in times of public emergency to the extent necessitated by the situation. On 14 September 2001, the President issued the "Declaration of National Emergency by Reason of Certain Terrorist Attacks." Despite the proclamation, the United States has not suggested that the current situation necessitates derogation from the Covenant; this being so, the ICCPR’s safeguards apply to the commission pre-trial, trial, and post-trial proceedings. On the whole, the rules promulgated in Commission Order No. 1 satisfy the norms set forth in the International Covenant of Civil and Political Rights. Whether the trials themselves will do so remains to been seen.

A second relevant convention is the 1977 Protocol I Additional to the Geneva Conventions, an international agreement that augments the four Geneva Conventions of 1949 in the context of international armed conflicts; derogation from Protocol I is not permitted. Although the United States is not a Party to the convention, it does recognize it as, with some specific exceptions that do not bear on this analysis, reflective of customary international law. Thus, while not directly binding on the United States, Protocol I articulates standards that do apply to US activities.

Most significantly, Article 75 of the Protocol sets forth various "fundamental guarantees" for persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the [Geneva Conventions]…" (such as POWs). It requires notification of the reasons for detention and charges, an "impartial and regularly constituted court"; a presumption of innocence; prohibitions on trials in absentia and on subsequent trials for an offense of which the defendant was already acquitted; the rights to remain silent at trial, present witnesses on one’s behalf, cross-examine adverse witnesses, and have the judgment pronounced publicly. No provision of Commission Order No. 1 would violate these guarantees.

As an aside, in the ongoing dialogue there has been occasional reference to Findlay v. United Kingdom, the 1997 decision of the European Court of Human Rights that found a violation of the European Convention on Human Rights Article 6 requirement for a "fair and public hearing…by an independent and impartial tribunal established by law." The violation was based on the fact that all officers appointed to the court-martial in question were directly subordinate to the court-martial’s convening officer, who also performed the role of prosecuting authority. However, and quite aside from the issue of whether the facts of the case are sufficiently similar to that at hand, the United States is not a Party to the Convention, and therefore not bound by its provisions.

Beyond the issue of fairness generally, criticism of the commissions and their rules has focused on certain very specific issues. A number of these, identified by the Crimes of War Project, are addressed individually below.

Is it legally justifiable for detainees not to have the right to appeal to a civilian court, as would be the case in a court-martial of a member of the armed forces?

Although praising Commission Order No. 1 for including "important due process protections," Human Rights Watch has argued that it "nevertheless fail(s) to meet the core human rights requirements of appellate review by an independent and impartial court, or meet the requirements of the Geneva Conventions." Others have similarly condemned the fact that there is no civilian review of the proceedings.

Such charges again demonstrate a confusion of US and international legal standards. In particular, they reflect a misapplication of the related doctrines of separation of powers and checks and balances, which respectively assure the independence of the judiciary and ensure the legislative and executive branches of government act constitutionally. At first glance, both are relevant in the case of the commissions, which are courts, but are set up by the Executive branch.

What has been forgotten in the discourse is that neither doctrine forms a part of international law. They are merely "policy choices" made by the framers of the Constitution and developed through US case law. Instead, what international law requires is quite simple: that those convicted shall have the right to have their convictions and sentences "reviewed by a higher tribunal according to law" (ICCPR, art. 14.5). Although, the review must be meaningful, impartial and otherwise fair in fact, there is no requirement that review occur within a branch of government other than that which created and empowered the trial level tribunal. Moreover, nowhere in international law is there a requirement that civilians, let alone civilians beyond the defense establishment, review the decisions of military tribunals.

There is one exception to this general premise. Article 106 of the Third Geneva Convention provides that prisoners of war "shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial." Since US military personnel enjoy the possibility of appeal to the Supreme Court following review by the individual services’ Courts of Criminal Appeals (military judges) and the Court of Appeals for the Armed Services (civilian judges), had the Taliban or al Qaida detainees been classified as POWs, trial in general courts-martial would have been required, together with the possibility of review by the Supreme Court. But assuming for the sake of analysis that the US denial of POW status is proper, Article 106 is inapplicable.

If the detainees are not POWs, they are nevertheless "persons in the power of a party to the conflict" who enjoy protection under Protocol I (for the US, as a "restatement of customary law). Article 75 of the Protocol merely requires that "a convicted person shall be advised on conviction of his judicial and other remedies and of the time limits within which they may be exercised." Commission Order No. 1’s review procedures comply with this standard.

Are the evidentiary standards set forth in Commission Order No. 1 legally adequate?

Commission Order No. 1 provides that evidence will be admitted if it has "probative value to a reasonable person." Evidence is probative when it tends to make a fact in issue more or less likely. This standard applies to any evidence, including, but not limited to, witness testimony, testimony from prior trials and proceedings, sworn or unsworn written statements, physical evidence, or scientific or other reports. It is specifically provided that a commission "shall consider the ability to test the veracity of…testimony in evaluating the weight to be given to the testimony…." The general duty of a commission to "provide a full and fair trial" is to guide it when ruling on the admission of evidence, as in all other matters.

The standards set forth for courts-martial and other federal trials in, respectively, the Military Rules of Evidence and the Federal Rules of Evidence are far more restrictive and complex than this simple tenet. They mandate, inter alia, the exclusion of most forms of hearsay (out of court statements offered for the purpose of proving the matters asserted therein) and coerced statements and require that a chain of custody (a demonstration of sufficient safeguarding of the evidence prior to its admission at trial) be established for all physical evidence. Such rules have a logical and legal basis. They afford the accused a comprehensive ability to confront witnesses against him, allow the fact-finder to assess the demeanor of witnesses when providing testimony, deter police misconduct, and help ensure that integrity of physical evidence.

As discussed above, though, the President specifically held in his November order that it was not practicable for the commissions to apply the rules applicable in US criminal proceedings; since these are not US criminal proceedings, but rather war crimes trials of non-citizens conducted by the United States outside its borders, this is a legitimate finding. In fact, it represents an extremely practical approach given the fact that the crimes are alleged to have occurred during an armed conflict. The nature of armed conflict is such that it is often impossible to investigate an offense to the extent of ordinary peacetime crimes. Witnesses are often unidentifiable or cannot be located, much physical evidence has been destroyed or damaged, the "crime scene" may be inaccessible, the trial may impact ongoing combat operations and so forth.

Not only is the Commission Order rule practical, it is consistent with most global practice, including that in much of Europe. In many countries, the admission of evidence is based on whether it is relevant and generally reliable. That statements may have been made out of court or resulted from some degree of coercion bears on the issue of the weight to be attributed to them, not on whether or not they are admissible. If the circumstances suggest the unreliability of statements, then they will be given little weight. In extreme cases, out of court statements may be excluded altogether, but that decision would not be based on the fact that legalistic procedures in their production were violated, but rather because they are so unreliable that they have de minimus probative value. The same approach applies with regard to chain of custody. The strength or weakness of the chain of custody affects the extent to which the physical evidence is relied on in ascertaining the facts.

The Commission Order rule is also consistent with those of international criminal tribunals. For instance, Rule 89 of the Rules of Procedure and Evidence for the International Criminal Tribunal for the Former Yugoslavia (ICTY) provides that the Tribunal "shall not be bound by national rules of evidence." It permits the admission of "any relevant evidence that is deemed to have probative value." Evidence may be excluded "if its probative value is substantially outweighed by the need to ensure a fair trial," and the court may consider "the evidence of a witness orally or, where the interests of justice allow, in written form." As safeguards, the court may also "request verification of the authenticity of evidence obtained out of court" and, pursuant to Rule 95, "no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." Similarly, Article 69 the Statute of the International Criminal Court (ICC) provides that the "Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness." The Court’s Statute comes into effect in July 2002.

Recall that the UN Security Council established the ICTY under Chapter VII of the UN Charter, whereas the ICC Statute is a multilateral convention that has achieved wide acceptance. Although phrased differently, the Commission Order’s rules of evidence provide guarantees analogous to those found in both the ICTY Rules and ICC Statute. This is compelling confirmation of their legality under international law. Combined with their similarity to the rules employed in many of the world’s mature legal systems, the commission rules, albeit unusual to American litigators and jurists, meet international legal standards.

Are the provisions for closing commissions appropriate, in particular given that prosecutions of other terrorists have been successfully held in the US civilian court system?

The Commission Order provides that proceedings shall generally be open. Further, the Appointing Authority may permit attendance by the press and "public release of transcripts at the appropriate time." However, either the Appointing Authority or the Presiding Officer may order the proceedings closed to protect: "information classified or classifiable…; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests." All or part of the trial may be closed and the accused or his civilian attorney may be excluded from segments thereof when necessary to ensure protection of the aforementioned matters, although it is forbidden to exclude the detailed military defense counsel. The overarching rule regarding closure of proceedings is that they "should be open to the maximum extent possible." Thus, there is a rebuttable presumption in favor of an public proceeding.

In response to the question posed, it is first necessary to define success. When assessing success, it is useful to bear in mind that one cannot know what one does not know. It has been anecdotally reported that in the trials of terrorists in US courts over the last decade, prosecutors have refrained from filing various charges or introducing certain evidence that might place sensitive intelligence information, operations and sources in jeopardy. Such risks are aggravated in an international armed conflict, for open proceedings might well provide the enemy a valuable glimpse of the intelligence battlefield.

Some critics claim that procedures to safeguard sensitive evidence and protect trial participants in US courts are adequate, thereby rendering the Commission Order’s procedures excessive. The Classified Information Protection Act (CIPA), for instance, permits certain documents to be summarized and allows for in camera proceedings with the presiding judge (as does the Commission Order). CIPA was used in both the Oklahoma City bombing and the 1993 World Trade Center prosecutions. Nevertheless, because the Sixth Amendment right to a public trial is zealously safeguarded in US courts, seeking closure of proceedings is a difficult obstacle to hurdle.

Assertions along these lines again confuse standards and legislation applicable in US courts with those that bound international war crimes trials. Article 14 of the International Covenant on Civil and Political Rights allows the press and the public to be "excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public…." The closure provisions of the Commission Order appear consistent with this provision.

The ICTY Rules of Procedure and Evidence have extensive provisions for closing proceedings or otherwise protecting evidence. For instance, Rule 66 entitles the Prosecutor to seek permission from the Trial Chamber, sitting in camera, to withhold information from the defense that might "prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State." Once trial has commenced, the Trial Chamber may order that the "press and the public be excluded from all or part of the proceedings for reasons of: (i) public order or morality; (ii) safety, security or non-disclosure of the identity of a victim or witness…; or (iii) the protection of the interests of justice" (Rule 79). This provision can be used to justify closing proceedings during presentation of sensitive evidence. The rules also provide a specific procedure to safeguard information which might prejudice a State’s national security during hearings on objections by that State to the court’s directive to produce it (in camera or ex parte hearings, the use of redacted documents which include only extracts of the original, non-production of a transcript of the hearing, the use of a State’s own interpreters and translators, and having a single judge conduct the hearing).

Similarly, the ICC Statute provides an exception to the principle of public hearings in order to protect victims, witnesses or an accused. More to the point, if a State believes that disclosure of information or evidence in its possession would prejudice its national security interests, it may negotiate with the Court on the conditions of its introduction. Examples of such conditions set forth in Article 72 include "providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings." Thus, the ICC would allow both closure of proceedings and exclusion of the accused to protect national security information.

As is the case with the issue of evidentiary standards, the closure provisions may not be entirely consistent with the practice of US federal courts. However, there are unique requirements for security in an armed conflict that justify, as a practical matter, closing trials under certain circumstances. Further, the Commission Order’s provisions on closure comport with the international legal standards set forth in the ICCPR and the practice of international criminal tribunals specifically tasked with handling trials of war criminals. So long as the commissions do not abuse their discretion in this matter, the closure procedures do not legally represent an impediment to a fair and full trial under international law.

What are the possible offenses the defendants might be charged with? Is membership in al Qaida itself or having been through a training camp an offense that might justify prosecution before a military commission?

This is a difficult question to respond to without access to the evidence against those to be charged. Commission Order No. 1 states that commissions shall have subject matter jurisdiction "over violations of laws of war and all other offenses triable by military commissions." Regarding personal jurisdiction, it refers back to the President’s November Military Order. That order establishes jurisdiction over individuals when there is a "reason to believe" that they are or were members of al Qaida or that they engaged in, aided or conspired to commit acts of international terrorism affecting the United States. It also extends jurisdiction over those who harbor such persons.

US legislation specifically addresses military commission jurisdiction. As noted earlier, Article 21 of the Uniform Code of Military Justice authorizes military commissions to try "offenders and offenses that by statute or by the law of war may be tried by military commissions." Jurisdiction of military commissions was upheld by the Supreme Court in the cases of Ex Parte Quirin (1942) and Application of Yamashita (1946). Although occurring prior to promulgation of the UCMJ, the Article of War at issue in those cases is identical to Article 21.

Because no US statute confers competence to try specific offenses on commissions, their jurisdiction is limited to "laws of war." The "laws of war" relevant here include crimes against humanity and war crimes, both of which allow for "universal jurisdiction," i.e., jurisdiction over offenders and offenses regardless of the nationality of the accused, nationality of the victim, or State in which the crime occurred. They are found in numerous conventions. Most notable in this case is the Fourth Geneva Convention, which provides for the protection of civilians in international armed conflict. Also relevant is the Charter of the International Military Tribunal at Nuremberg, which first set out the offense of crime against humanity.

Particularly useful in delineating the crimes which may be charged is the Statute of the International Criminal Court. In great part, it sets forth those offenses upon which there is wide international agreement as to unlawfulness. Thus, it not only serves as a restatement of law found in agreements such as the Geneva Conventions, but it also serves as a useful point of departure in identifying customary international law. With regard to non-Parties such as the United States, it is of relevance in much the same fashion as Protocol I.

In Article 7, the ICC Statute defines crimes against humanity as certain specific activities "when committed as part of a widespread or systematic attack directed against any civilian population." Among the cited acts are two that bear on the September 11th attacks (as well as any other terrorist acts that might have been planned or set in motion) æ murder and "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." Crimes against humanity are likewise included among the offenses the ICTY can address pursuant to Article 2 of its Statute. A broad consensus has emerged in the international legal community that the 9/11 attacks rise to the level of crimes against humanity due to their scale and scope.

Article 8 of the ICC Statute sets forth war crimes. It first identifies grave breaches of the Geneva Conventions as war crimes. Three, all deriving from the Fourth Geneva Convention, are relevant here: willfully killing civilians; willfully causing civilians great suffering or serious injury to body or health; and causing extensive destruction of civilian property "not justified by military necessity and carried out unlawfully and wantonly." The Article then cites a series of "other serious violations of the laws and customs applicable in international armed conflict." Two clearly apply to the attacks: "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" and "intentionally directing attacks against civilian objects." The prosecution of equivalent acts is within the competency of the ICTY in accordance with Article 2 of its Statute.

In Article 25, the ICC Statute sets the parameters for individual criminal responsibility. Not only is one who commits an offense responsible, but so too is anyone who "orders, solicits or induces the commission of such a crime which in fact occurs or is attempted"; "aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission"; "in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose"; or "attempts to commit such a crime by taking action that commences its execution by means of a substantial step." Similarly, in Article 7, the ICTY Statute provides that "a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime…shall be individually responsible for the crime."

It is unlikely that the offenses will be charged as terrorist acts despite the wording of the Commission Order. The definition of terrorism is subject to much disagreement. Moreover, most definitions of terrorism include a mens rea (state of mind) element that requires the act to be "politically" motivated, a fact that would have to be proved at trial. Additionally, in the absence of legislation allowing the commissions to try crimes of terrorism, it would be necessary to demonstrate that "terrorism" as such fell within the meaning of the legal term of art, "laws of war."

Conviction based on membership in al Qaida or attendance at a training camp would depend on the facts adduced at trial. There is some precedent in the findings of the International Military Tribunal at Nuremberg. The London Charter criminalized membership in "criminal organizations"; the International Military Tribunal subsequently found that the Leadership Corps of the Nazi Party, Gestapo and SS were such organizations. However, the tribunal elected not to convict on that basis alone, instead focusing on the criminal conduct of the accused. Whether mere membership in an organization constitutes a violation of the "laws of war" is highly debatable. That said, the nature of an accused’s involvement in al Qaida might provide a basis for prosecuting members who instigate, order, aid or abet prohibited acts. Each prosecution will be fact specific.

Training might well constitute an "attempt" in the sense that it can represent a significant step towards the commission of a violation of the law of war. This is particularly so if the training was directed towards a particular act, or type of act, that would be a crime against humanity or war crime. For instance, flight training by those who conducted the 9/11 attacks, had they not been successful, would unquestionably have amounted to an attempt to commit them.

Trying individuals who harbor those involved in law of war violations would be more problematic. It is questionable whether sheltering international terrorists is a violation of the law of war. It may be wrongful under other bodies of international law, but that is not a sufficient basis for subject matter jurisdiction given the UCMJ Article 21 limitation of jurisdiction to violations of the law of war or statutes conferring jurisdiction on commissions. Absent specific legislation extending jurisdiction to harboring terrorists, any attempt to prosecute such individuals in a commission (vice another forum) would be challenging.

Finally, there is some debate about whether the 9/11 attacks occurred during an international armed conflict, thereby implicating the laws of war. This is an extremely complicated issue. There is a body of law governing non-international armed conflict, but it only applies to internal conflict (such as insurgencies) between a government and a group within that State. In this case, the United States was the target of attack by non-citizens primarily based outside its borders; thus, the law of non-international armed conflict in inapplicable.

As to the existence of an international armed conflict, which is necessary for the application of the Geneva Conventions (except for one article) and most customary humanitarian law, there is a colorable argument that such a conflict did not commence until the United States began bombing Afghanistan in early October 2001. By this reasoning, the terrorist attacks that occurred prior to that point constituted criminal actions, but not acts of "war", because non-State actors carried them out and the law of war presupposes armed hostilities between two or more States. It was only once two States, the United States and Great Britain, attacked another, Afghanistan, that international armed conflict began.

By contrast, the American Bar Association Task Force on Terrorism and the Law Report and Recommendations on Military Commissions of January 2002 suggests that "given the degree of violence in these attacks and the nature and scope of the organization necessary to carry them out, it is much more difficult to argue that they are not acts of war than to argue that they are." The passage of resolutions (especially Resolution 1368) by the Security Council referencing the right to self-defense, NATO’s acknowledgement that the attacks implicated Article V of the North Atlantic Treaty (providing for collective self-defense), and Congress’ enactment of a Joint Resolution authorizing the President to use force against the perpetrators æ considered in light of the paucity of international condemnation of the subsequent US and allied attacks æ support this line of reasoning.

From the perspective of more traditional international law approaches, the issue is less one of the scale of the attacks than the relationship between the actors and a State. Although the Taliban did not actually carry out the attacks themselves, did they constructively do so through the instrument of al Qaida? This depends on the nature and extent of the connection between the two groups. The International Court of Justice addressed a similar issue in the 1986 Nicaragua case. In its judgment, the Court held that an armed attack may be understood as including the dispatch of armed bands or irregulars into the territory of another State, even if they are not one’s own armed forces. On the other hand, the ICJ also held that simply providing weapons, logistics or other support to the insurgents, while wrongful, did not amount to an armed attack (as the term is understood in Article 51 of the UN Charter). Along the same lines, in Tadic the ICTY held that the critical issue in determining whether acts can be attributed to a State is the extent of subordination to the State of the group committing the act. Even more recently, the International Law Commission, in its Draft Articles on State Responsibility focused on the instruction, direction or control of persons or groups when considering State responsibility for their acts.

Therefore, a relatively high legal threshold has traditionally been set for attributing the activities of a non-State actor to a State. Mere acquiescence to the presence of terrorist on one’s territory, or even their use of it as a base of operations, would not appear to be sufficient. Whether or not the Taliban ties to al Qaida are robust enough is a question of fact. Absent public release of all relevant material, it is difficult to offer any definitive conclusions on this issue. However, if the facts do reveal sufficient ties, it would be entirely appropriate to characterize the attacks by al Qaida on September 11th as the opening round of inter-State hostilities, thereby initiating a state of international armed conflict.

Of course, despite this traditional line of reasoning, it may be argued that international law has now evolved to the point where international armed conflict is armed conflict of a sufficient level occurring across borders, regardless of the status of the parties. This is not an unreasonable approach given State practice, and needs, in the fight against such transnational threats as terrorism.

Finally, crimes against humanity are universal crimes that may occur during peacetime. Whether charges thereof can be tried in the commissions may well depend on how the term "laws of war" found in both the UCMJ and Commission Order No. 1 is interpreted. If it references a particularly body of law, then even if the prosecution fails to demonstrate a state of international armed conflict, trial for crimes against humanity could proceed. However, if the intended content of the term depends on the existence of a state of war (armed conflict), the commission may be deemed to lack jurisdiction to try the offense. Of course, such a finding would not deprive other fora of jurisdiction over crimes against humanity.

Given the tenor of events and the international reaction thereto, it is unlikely that charges will falter on the question of whether an international armed conflict existed on September 11th. Thus, the commissions are competent to consider both crimes against humanity and war crimes that are criminalized in conventions and customary law. Given the limitation of the grants of subject matter jurisdiction, prosecution for violations of US statutes or other international criminal law would either have to take place elsewhere or occur following a legislative extension of the commission jurisdiction.

Can the detention of the detainees be challenged through a petition for a writ of habeas corpus?

It has been suggested that the President’s Counsel, Alberto Gonzales, indicated in November that those indicted under the Military Order would have the right to challenge their detention through a habeas corpus application (an application that the detainees be ordered produced before the court for the purpose of reviewing the legal sufficiency of their detention). In fact, in his New York Times article of 30 November 2002, Gonzales simply stated that "[t]he order preserves judicial review in civilian courts. Under the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court." This accurate statement of law is inapplicable in the case of the Guantanamo detainees, for they have not been arrested, detained or tried in the United States; a US tribunal is simply conducting their case.

The proper query is whether non-US citizens seized, detained and tried outside the United States have the right to seek a petition for a writ of habeas corpus. The US District Court for the Central District on California addressed this issue in its 21 February 2002 decision in Coalition of Clergy v. Bush et al. In that case, a group of clergy, academics and others sought a writ of habeas corpus on behalf of the detainees alleging that they were being held in violation of their due process rights. The District Court found that the petitioners lacked standing to assert the claim because they did not have a "significant relationship" with the detainees. That finding alone was sufficient to deny the application. However, the court went on to state that even had there been a significant relationship, it would not have been able to entertain the application because the "custodians" of the detainees were not in its jurisdiction. Rather, the District of Columbia would have been an appropriate forum due to the presence in Washington of the President, Secretary of Defense and others who exercised authority over the detention. This would normally have resulted in transfer of the proceedings there (or another location where a federal court with jurisdiction was located).

At that point, the court held that it need not transfer the case because the detainees themselves had no basis for filing the application. In making this determination, the court cited the Supreme Court’s holding in Johnson v. Eisentrager (1950). Johnson involved 21 German habeas petitioners who were arrested in Japan. Charged with violating the laws of war by continuing to engage in military activities following the surrender of Germany (but before Japan surrendered), they were tried and convicted by a military commission sitting in China. The prisoners were then transferred to Germany to serve their sentence in a US run confinement facility. At that point, they sought a writ of habeas corpus on the basis of detention in violation of the US Constitution and the laws of war. The District Court dismissed the case, but was overturned by the Court of Appeals. On appeal to the Supreme Court, the Appeals Court decision was reversed and the original dismissal reinstated.

In its holding, the Johnson Court found that "these prisoners at no relevant time were within any territory over which the United States is sovereign and the circumstances of their offense [and] their capture . . . were all beyond the territorial jurisdiction of any court of the United States." The Coalition of Clergy reasoning was nearly identical:

In all key respects, the Guantanamo detainees are like the petitioners in Johnson: They are aliens; they were enemy combatants; they were captured in combat; they were abroad when captured; they are abroad now; since their capture, they have been under the control of only the military; they have not stepped foot on American soil; and there are no legal or judicial precedents entitling them to pursue a writ of habeas corpus in an American civilian court. Moreover, there are sound practical reasons, such as legitimate security concerns, that make it unwise for this or any court to take the unprecedented step of conferring such a right on these detainees.

Some advocates of a right to petition for a writ of habeas corpus have urged that the proper precedent to follow was Yamashita (Yamashita was tried by a US military commission sitting in the Philippines). In that case, the Supreme Court accepted the petition, but denied it on its merits; thus, it did not find that there was no right to petition in the first case. The Coalition of Clergy decision addresses this contention head on. Unlike the Philippines at the time of Yamashita, the United States does not exercise sovereignty over Guantanamo Bay Naval Station; instead, it has leased the base from Cuba since 1903.

This is, of course, but one first instance level case; others, such as that of Shafiq Rasul et al v. Bush (District Court of the District of Columbia), are pending. That said, Coalition of Clergy represents sound analysis. Yet, critics continue to argue that the court was overly restrictive in its application of the sovereignty criterion. In particular, they note that the United States exercises de facto, albeit not de jure, sovereignty over Guantanamo since Cuban authorities have virtually no control over the area. If they prevail on this point in federal court, an eventuality that is unlikely, a key reason the detainees have been kept outside the United States will be proven misguided.

Secretary of Defense Rumsfeld has indicated that some detainees, even if tried and found innocent, might continue to be detained "for the duration of the conflict." When queried on the point at which the conflict would end, he replied, "when we feel that there are not effective global terrorist networks functioning in the world," such that the detainees would not engage in further terrorism if released. Under what circumstances may a detainee who has been acquitted be detained?

This is an extremely complicated issue. Pursuant to Article 118 of the Third Geneva Convention, combatants may be held as prisoners of war until the "cessation of active hostilities." However, the United States has denied POW status to the Guantanamo detainees, instead characterizing them as illegal combatants; thus, Article 118 not directly applicable (assuming the valifity of the US position). That said, Article 75.3 of Protocol I, provides that "[a]ny person arrested, detained or interned for actions related to the armed conflict…, [e]xcept in cases of arrest or detention for penal offences, … shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist." Recall that Protocol I, while not directly binding on the United States, articulates certain accepted customary norms of humanitarian law; the United States has not suggested that Article 75.3 falls outside this category.

By the Article 75 standard, it would be appropriate to hold the detainees beyond the cessation of active hostilities for the purpose of trial. However, if acquitted prior to that point, the exception would not apply. When, then, would the circumstances justifying their detention cease to exist? Continuing hostilities is certainly a circumstance justifying retention of a detainee who has participated in the conflict against the detaining power. Indeed, it would be absurd to suggest that legitimate combatants could be held until the cessation of hostilities, whereas illegal combatants would have a right to earlier release. But, read in light of both the cessation of hostilities verbiage of Article 118 vis-à-vis POWs and the fact that the drafters included an exception to the general principle of release as early as possible, it would also be incorrect to use the provision as justification for extending the detention of individuals beyond the cessation of hostilities.

The dispositive question is therefore that of when do hostilities end. The best response is that they will cease once al Qaida and Taliban forces in the field are no longer engaged in hostilities against US or allied forces and al Qaida and the Taliban, or any other related forces, no longer control any area in Afghanistan. At that point a situation of "debellatio" occurs and the international armed conflict is terminated. By definition, the termination of the conflict means that active hostilities have ceased. Of course, it is likely that at some indefinite point in the future remnants of al Qaida or other terrorists will commit acts of terrorism. Those acts, however, will (in the absence of connection to any State) be criminal in nature, not acts of war. Although it will be appropriate to use military forces in self-defense against the perpetrators, absent the participation of a State, international armed conflict will not be underway.

Beyond these humanitarian law norms, human rights law, including the ICCPR, prohibits indefinite detention and requires trial without undue delay. There is an exception in cases of national emergency, which, as noted, President Bush declared on September 14th. In fact, British authorities have detained individuals involved in hostilities in Northern Ireland for extended periods on the basis that they were dangerous. Such detentions can be appropriate in certain circumstances if the detaining power can demonstrate a valid need for continued detention and the need is regularly reassessed.

To recap, those acquitted by the commissions should generally be released once hostilities cease. Two exceptions apply. First, they may be held for trial of different offenses (perhaps for trial in a US courts for criminal violations). Second, in exceptional circumstances they may be detained as a protective measure, but only if a valid state of national emergency continues to exist, the detention of the particular individual involved is clearly justified, and there are mechanisms for regular review of the detention. This is an extraordinarily high threshold.

Among the detainees are individuals who were picked up far from the battlefield, such as the al Qaida suspects turned over by Bosnia and Herzegovina. Is there a legal basis for their being transferred to US custody and held without charge?

A State may turn over an alleged criminal to another State except in those cases where doing so will make the surrendering State complicit in human rights abuses. The law of extradition is generally designed to protect the interests of the State in which the individual is located, not the interests of any particular individual. So long it is reasonable for Bosnia and Herzegovina to conclude that the human rights of a transferee will be respected by US authorities, it is appropriate for it to determine that transfer is in its national interests. Further, pursuant to the Commission Order, each accused is to be provided a copy of the charges against him.

Bosnia and Herzegovina, or any other State, would be entitled to turn over al Qaida members even if they are not to be tried by the commissions. It has not asserted neutral or non-belligerent status and, thus, there is no issue as to whether it has violated its duties of neutrality. In an interesting twist, this situation could amount to an act through which Bosnia and Hercegovina acquires belligerent status. However, this possibility is of little practical import in the circumstances of the current conflict.

Conclusion

As a general matter, the commissions will allow the government to conduct quick and efficient trials of those charged, while maintaining operational security. Moreover, the rules of procedure and evidence set forth in Commission Order No. 1 comport with international legal norms. Although they do not meet the requirements of US constitutional and statutory law, the facts that the trials are of non-US citizens and will occur outside the United States for violations of the laws of war render most aspects of that body of law inapplicable in commission proceedings.

An interesting twist would be a finding that some of the detainees enjoy POW status under the Third Geneva Convention. Much controversy has surrounded this issue. As POWs, they would be entitled to trial in US courts-martial, as well as lengthy review through the three-tiered appellate system. Additionally, the complex Military Rules of Evidence and the large body of military and federal case law precedent would apply. Some commentators have speculated that the Bush administration’s denial of POW status to the detainees was at least in part motivated by a desire to avoid a long judicial process closely tracked by the press. Whether this is so or not remains uncertain. What is clear, though, is that the commissions, procedures and evidentiary standards selected to try the alleged violations of the law of war by the Guantanamo detainees generally meet the requirements of international law.