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March 7, 2004

Charge against two Guantanamo detainees
A question of international law

Frederic L. Kirgis

On February 24, 2004, the United States charged two detainees at Guantanamo Bay, Cuba, with conspiracy "to commit the following offences triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism, said conduct being in the context of and associated with armed conflict. The charges do not allege violation of any specific statutory or treaty provisions. To be within the jurisdiction of the military commission established by the Department of Defense, the alleged acts must be "violations of the laws of war [or] other offences triable by military commission. In the past, military commissions have tried cases involving war crimes, espionage, sabotage and various offences committed by persons in occupied territory against the occupying forces.

The acts charged against one of the detainees, Ibrahim Ahmed Mahmoud al Qosi, include becoming a member of al Qaida, passing information between terrorist cells, serving as an accountant and deputy chief financial officer for al Qaida, assisting in transporting weapons, acting as an armed bodyguard for Usama bin Laden, and assisting bin Laden and other al Qaida members in avoiding capture before, during and after the attacks of September 11, 2001. The acts charged against the other detainee, Ali Hamza Ahmad Sulayman al Bahlul, include participating in al Qaida military training, pledging to protect bin Laden from all harm, creating recruiting video tapes for al Qaida (including one glorifying the October 2000 attack on the USS Cole inYemen), acting as an armed bodyguard for bin Laden, and assisting him and other al Qaida members in avoiding capture. The United States does not intend to seek the death penalty for either detainee.

This Insight focuses on certain international law issues raised by the charges and by the use of a military commission. It does not address United States constitutional or statutory law issues, nor does it attempt to determine what constitutes a conspiracy under US military law.

As a matter of international law, one might look to the Statute of the International Criminal Court (ICC) for guidance regarding the acts that would amount to participation in a conspiracy. Some provisions of that Statute are controversial, but the provisions relating to conspiracy appear to be generally accepted. In this connection, ICC Statute article 25(3)(d) says that a person commits a crime within the ICC's jurisdiction if he or she "contributes to the commission or attempted commission of [a punishable 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 crime . . . ."

A Chamber of the International Criminal Tribunal for Rwanda has dealt with allegations of conspiracy to commit genocide. Genocide is not involved in the Guantanamo cases, but the Rwanda Chamber's approach might nevertheless be relevant as evidence of the meaning of "conspiracy" in international law. The Chamber has said that the offence of conspiracy requires the existence of an agreement, but it need not be formal or express. It could be inferred from concerted action. According to the Chamber, a tacit understanding of the criminal purpose would be sufficient, and the existence of a conspiracy could be based on circumstantial evidence. Moreover, a conspiracy to commit genocide could be comprised of individuals acting in an institutional capacity, even in the absence of personal links with each other.

Some guidance may also be found in the post-World War II Nuremberg prosecutions. Article 6 of the Charter of the Nuremberg Tribunal criminalised conspiracy to commit the offences set out in that article, particularly the planning, preparation, initiation or waging of a war of aggression. Conspiracy was not defined in the Charter. The Tribunal said that "the conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and action. The Tribunal must examine whether a concrete plan to wage war existed, and determine the participants in that concrete plan. In determining guilt or innocence of individuals, the Tribunal said that actual knowledge of the Nazi aggressive plans was an "all-important question.

In any event, the burden will be on the prosecution to prove the conspiracy.

Transposed to the context of the military commission, the crime resulting from a conspiracy would not necessarily have to be within the jurisdiction of the ICC or of any other international tribunal. Nevertheless, one could look to the ICC Statute, as well as the Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, to identify the acts normally considered crimes under international law. They include genocide, crimes against humanity, and war crimes.

Neither of the Guantanamo detainees is charged with conspiracy to commit genocide or crimes against humanity. But they are charged with conspiracy to attack civilians and civilian objects in the context of armed conflict. The charges do not identify these attacks as war crimes, perhaps to relieve the commission from having to determine whether the attacks come within the prohibitions of the Geneva Conventions of 1949. It is worth noting, though, that war crimes under the Statutes mentioned above include wilful killing, willfully causing serious injury, and extensive, wanton destruction of property, if the acts are directed against persons or property protected by the Geneva Conventions. Protected persons under Geneva Convention IV (concerning civilians) are those who in the case of a conflict or occupation find themselves in the hands of a party of which they are not nationals. The ICC Statute goes further, reflecting provisions in Protocol I to the Geneva Conventions. In the context of international armed conflict, it criminalises such acts as intentionally directing attacks against civilians and civilian objects, intentionally launching an attack knowing that it will cause incidental and excessive loss of life or injury to civilians or damage to civilian objects, and attacking undefended buildings that are not military objectives. The United States is not a party to the ICC Statute or to Protocol I to the Geneva Conventions, but it is likely that the provisions just mentioned are embodied in existing customary international law.

The military commission may have to decide whether terrorist acts directed against the United States or against US interests were conducted in the context of international armed conflict, and if so, whether the conflict began on September 11, 2001, or perhaps on October 7, 2001 (when the US bombing campaign in Afghanistan began). The conflict has not been a traditional war between sovereign states. Nevertheless, the Counsel to the President of the United States has said that since at least September 11, 2001, the United States has been at war with al Qaida. If the United States is engaged in an international armed conflict as of a given date, it does not necessarily follow that the commission would be precluded from considering earlier conspiratorial acts if they led to the conflict.

The remaining offences charged against the detainees-murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent, and terrorism--do not expressly appear in the Geneva Conventions or in the Statutes mentioned above. Nor does the term "unprivileged belligerent." International law does not criminalise "ordinary" murder or destruction of property, and there is no generally accepted definition of terrorism in international law. Nevertheless, there is a strong multinational consensus that acts such as the bombing of the USS Cole and the attacks of September 11, 2001, amount to terrorism.

The detainees may claim to be prisoners of war and thus entitled to the rights that Geneva Convention III accords to POWs. This is an important issue, primarily because Convention III, article 102 says that a POW can be validly sentenced only by the same courts and by the same procedure as in the case of members of the armed forces of the detaining power and if the provisions of the relevant chapter of the Convention have been observed. (Among those provisions is article 99, which says that no POW may be tried or sentenced for an act that is not forbidden by the law of the detaining power or by international law, in force when the act was committed.) The military commission's rules do not track those of US court-martials. In particular, the rules of admissible evidence do not supply all of the reliability safeguards found in the Uniform Code of Military Justice (UCMJ), and there is no right of appeal to any court. Under the Military Commission Order, the only appeal is to a Review Panel consisting of three military officers, only one of whom must have experience as a judge. Under the UCMJ, the accused has a right of appeal to the Court of Criminal Appeals of the service involved (army, air force, or navy/marines). After that, the US Court of Appeals for the Armed Forces may elect to review the case, and there is even a possibility that the US Supreme Court could review it.

Unless the detainees were acting for the government of Afghanistan (at that time, the Taliban) or of some other country that could be said to be a party to a conflict with the United States, it does not appear that they would be entitled to prisoner-of-war status. Geneva Convention III, article 4(A)(2) gives that status to members of militias and other corps not in the service of a state party to the conflict, only if they are commanded by a person responsible for his subordinates, they have a fixed distinctive sign recognisable at a distance, they carry arms openly, and they conduct their operations in accordance with the laws and customs of war. Al Qaida operatives would not meet those conditions if they acted independently from a government.

Even if the detainees are not entitled to POW status, they are entitled to certain basic human rights under international law. The United States is a party to the International Covenant on Civil and Political Rights (the Covenant), which is a multilateral treaty. Article 14 of the Covenant sets forth certain minimum guarantees designed to ensure that anyone charged with a crime has a fair trial. Article 15 says that no one shall be held guilty of any criminal offence for any act that did not constitute a criminal offence under national or international law at the time it was committed. Article 4 of the Covenant says, "[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed," states parties may derogate from certain provisions, including article 14, but only to the extent strictly required by the exigencies of the situation. It does not appear, however, that the United States is relying on article 4. There is no right to derogate from article 15 in any event.

Under article 2(1) of the Covenant, a state party (such as the United States) "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind . . . ." On its face, this appears to apply only to individuals who are within the state party's own territory as well as subject to its jurisdiction. One seasoned observer has concluded, though, that it would be contrary to the purpose of the Covenant if states parties were not held responsible when they take actions on foreign territory that violate the rights of persons subject to their sovereign authority. A federal court in the United States, on the other hand, has interpreted article 2(1) literally.

The Guantanamo detainees are subject to US jurisdiction, but the Guantanamo base is not literally within US territory. It is leased from Cuba. Under the 1903 lease and a 1934 treaty, the United States has "complete jurisdiction and control" over the base for an indefinite duration. No international tribunal has determined whether that is equivalent to saying that the base is part of US territory. There is a split in US federal courts over whether the US jurisdiction and control is equivalent to full US sovereignty over the base. The Ninth Circuit Court of Appeals has held that, for habeas corpus purposes, the United States has both territorial jurisdiction and sovereignty over Guantanamo. The District of Columbia Circuit, however, has held that the Guantanamo base is not within any territory over which the United States is sovereign. This, too, is an issue that the military commission may have to decide, at least if the United States Supreme Court does not decide it first.

Finally, the military commission might take the position that it should not consider any limits on its decision-making powers beyond the President's Military Order of November 13, 2001 (authorising military commissions), Department of Defence Military Commission Order No. 114 and the terms of the charges against the two detainees. Under international law, a nation-state is responsible for any official acts that would violate its obligations, whether or not the acts are done in compliance with domestic executive or military orders.

Frederic L. Kirgis is Law Alumni Association Professor at Washington and Lee University School of Law and is an honorary editor of the American Journal of International Law.

Source: American Society for International Law ( ASIL).