JURIST Guest Columnist David Scheffer, former US Ambassador at Large for War Crimes Issues (1997-2001), now at Northwestern University School of Law, says that the government's attempt to charge Salim Ahmed Hamdan with conspiracy to commit war crimes - a crime that does not exist under US or international law - falls short of a violation allowing him to be prosecuted before the President's military commissions and demonstrates the folly of the effort to push the square peg of terrorism into the round hole of the law of war...
uring the Supreme Court's hearing of Hamdan v. Rumsfeld
on March 28th, an instructive exchange took place between several of the justices and Professor Neal K. Katyal, counsel to the petitioner. The issue was whether the government had properly charged Salim Ahmed Hamdan with a violation of the law of war, an essential prerequisite to prosecuting him before the military commissions established without Congressional authorization by President George W. Bush pursuant to his Military Order of November 13, 2001. The lengthy discussion that ensued revealed the perpetual disconnect between 1) the Bush Administration's attempt to frame its detention and prosecution policies in the "war on terror" within the rigorous framework of the law of war, and 2) the far more logical approach of prosecuting alleged combatants either in a manner similar to rules long established for prisoners of war or as alleged terrorists under U.S. Code Title 18 (under which some terrorists detained in the United States, such as Zacarias Moussaoui and Richard Reid, have been solely prosecuted and convicted).
The government repeatedly charged Mr. Hamdan with conspiracy
to commit violations of the law or war, or war crimes. But as Justice Antonin Scalia suggested, the Sixth Amendment entitles a defendant to know the charges against him and those charges must be accurate in order to give the defendant a fair opportunity to mount his defense against them. The same holds true for the international criminal tribunals, where the principle of nullum crimen sine lege
is upheld and any ambiguity in the definition of a crime must be interpreted in favor of the defendant.
Since the newly established military commission before which Mr. Hamdan is being prosecuted must, by its own terms, remain limited to adjudicating "violations of the law of war and other applicable laws by military tribunals," the first requirement of any such judicial body must be to frame the charges correctly given its limited jurisdiction. That is why it has been so astonishing to see the government's charge sheet against Mr. Hamdan repeatedly invoke a crime that does not exist - under U.S. or international law. There is no crime of conspiracy to commit war crimes. That understandably may sound odd even to Supreme Court justices who often deal with the crime of conspiracy in other areas of litigation. Federal courts rarely hear war crimes cases and thus are not exposed to the large body of jurisprudence on this issue that has evolved in international criminal tribunals and foreign courts. Because the law of war as it applies to the United States is largely defined by international law (including treaty law and customary international law), any federal court or U.S. court martial or military commission must turn to international law and practice - what the Supreme Court called "universal agreement and practice" in the 1942 Nazi Saboteur Case - to interpret accurately and then properly enforce the law of war. That standard of near-universal acceptance of what constitutes the law of war thus is the benchmark for the military commission as well as the Supreme Court.
The last time the crime of conspiracy appeared in association with war crimes was in the 1945 London Charter of the Nuremberg International Military Tribunal. But it was quickly abandoned by the judges during the Nuremberg trials and only conspiracy to commit crimes against the peace survived. The 1948 Genocide Convention established the separate crime of a conspiracy to commit genocide, but genocide, as perhaps the most heinous of atrocity crimes, is not legally defined as a war crime per se
any more than are crimes against humanity (for which there is no crime of conspiracy either).
As the chief U.S. negotiator during the United Nations talks for the International Criminal Court (ICC), I had the opportunity to address the conspiracy issue very directly when the general principles of law on individual criminal responsibility were being considered over many drafting sessions. Some common law countries felt comfortable pursuing theories of conspiracy because such a crime exists in their domestic law (albeit not for the law of war). Civil law countries do not embrace the crime of conspiracy, however, and require evidence that the defendant acted with respect to the underlying crime. Being far more numerous than their common law brethren, civil law jurisdictions have never agreed to incorporate the crime of conspiracy into the law of war. The statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), approved by the U.N. Security Council in 1993 and 1994, respectively, and of the Special Court for Sierra Leone, all with full U.S. support, identify the crime of conspiracy only with genocide consistent with the Genocide Convention. In their many judgments, the ICTY and ICTR have held that with respect to war crimes, a charge of joint criminal enterprise associated with an actionable war crime - rather than adjudicating a stand-alone charge of conspiracy to commit war crimes - is the proper reasoning for establishing individual criminal responsibility for war crimes. The other prongs of individual criminal responsibility are direct or joint perpetration or aiding and abetting.
This terminological joust may seem like a distinction without a difference, but it is central to the prosecution of war crimes. In the Ojdanic
Joint Criminal Enterprise Decision, the ICTY Appeals Chamber explained that "[w]hilst conspiracy requires a showing that several individuals have agreed to commit a certain crime or set of crimes, a joint criminal enterprise requires, in addition to such a showing, that the parties to that agreement took action in furtherance of that agreement." In the Vasiljevic
appeals judgment, the ICTY held that a joint criminal enterprise requires "the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group." Thus the two key requirements of agreement and engagement to further the agreement must be proven for a war crimes prosecution of this character. Simply to charge the crime of conspiracy falls short of the international legal requirements imposed by the joint criminal enterprise standard.
By 1998 in the ICC negotiations, we put the conspiracy issue behind us by turning to what had just been successfully negotiated, and adopted by consensus with U.S. support in 1997, for the United Nations Convention for the Suppression of Terrorist Bombings. Article 2 of that convention was essentially replicated in what became Article 25(3)(d) of the Rome Statute of the ICC, which holds a person criminally responsible and liable for punishment for a war crime if that person "[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crimeâ¦" Such requirements have been identified by the international criminal tribunals and legal scholars as constituting the joint criminal enterprise theory, which far exceeds the threshold for a conspiracy charge.
Neither the Uniform Code of Military Justice nor Title 18 of the U.S. Code, which includes the War Crimes Act of 1996 as amended, aligns the crime of conspiracy with the law of war. It is simply implausible, as the Nuremberg judges discovered, to sweep vast numbers of individuals into conspiracy theories about war crimes. A higher standard is required, and that standard is joint criminal enterprise - which of course is a standard for proving a specific crime, not a stand-alone theory of liability. The conspiracy theory works well for genocide because of that crime's unique characteristics and intent requirements. The same might also be concluded for the crime of aggression (recalling the Nuremberg precedent) if and when it is properly defined for purposes of prosecution by the ICC. But in war something more is required than evidence that one might have agreed in some vague or ambiguous way, or inferentially by simply being in close proximity to the master planners and implementers, with a plan or design to violate the law of war. The international criminal tribunals since World War II have required a higher standard of engagement by the defendant in order to thrust him into the law of war.
Why the government demonstrated such sloppiness in its charge sheet against Mr. Hamdan, and failed to correct it over four long years, is emblematic of a stubborn insistence that somehow the square peg of terrorism can be jammed into the circular hole of the law of war. That remains the fatal flaw of the military commissions as well. David Scheffer is visiting professor of law at Northwestern University School of Law and former US Ambassador at Large for War Crimes Issues (1997-2001). He co-authored an
amicus brief filed by Northwestern Law's Center for International Human Rights before the Supreme Court in
Hamdan v. Rumsfeld.