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« Khadr charges dismissed for want of jurisdiction - possibly in error? [updated - twice] | Main | Can a military commission hold a fact-finding hearing to determine its own jurisdiction? »

June 05, 2007


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Howard Gilbert

After WWII, military commissions tried lawful German and Japanese combatants for violations of the laws of war. Lawful combatants can commit many of the crimes enumerated in the MCA. Thus the effect of the jurisdictional clauses inserted into the MCA is to force lawful combatants to be tried before Courts Martial, although there is no legal or traditional reason for such a restriction. However, Congress did what it did and now we have to deal with the consequences.

Plausibly you cannot determine that someone is an unlawful combatant without at the same time entertaining the possibility that they are lawful combatants. This seems to be very close to the rules on POW status.

Army Regulation 190-8 expands on Geneva Convention Article 5: "A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists."

There is no record indicating that any detainee has ever asserted that he is entitled to treatment as a POW. No Article 5/ AR 190-8 tribunal has been created, and the presiding officer in the CSRT for Moazzam Begg ruled that the CSRT was not authorized to itself rule on POW status. This leads to the logical conclusion that, until Monday, the official position of the army was that there was no doubt that detainees were all per se not entitled to POW status. Yet the judge now asserts that there must be an official determination of "unlawful combatant" status.

These two positions may be contradictory, but I would propose (and invite comment) that the question of who is and is not entitled to POW status is slightly different, though with a great deal of overlap, from the question of whether a detainee was "lawful" and entitled to combatant immunity.

Although prisoners of war and rules for their treatment go back in the US to orders issued by George Washington, the current regulations and discussion center on the Geneva Conventions. The GC creates an obligation to treat certain persons as POWs (if they belong to the army of signatory country, wear uniforms, etc.). However, should one of these criteria not be matched (if you go to war with a country that is not a signatory) then it is still the decent thing to do to treat captured enemy soldiers according to the rules for POWs if they fight according to the laws of war. Some argue that a POW held outside the GC isn't a "real" POW, but that off topic here.

However, while the GC certainly requires signatories to grant combatant immunity to persons recognized as POWs, it is otherwise silent on the question of whether anyone can not be entitled to POW status but still be a lawful combatant entitled to combatant immunity. There may be a 99% overlap between the circumstances in the text of the GC that strip someone of POW status, and the traditional Laws of War criteria for who is and isn't a lawful combatant. There is no reason to presume without exhaustive study that the overlap is perfect, and the GC doesn't superceed international common law on a matter it doesn't explicitly cover.

This does not preclude an Article 5/ AR 190-8 Tribunal from making a determination of lawful/unlawful status and the same time it determines POW status. Almost every obvious reason why someone might be denied POW status is also a criteria rendering them an unlawful combatant. Except possibly for the part about whether the army is or is not sufficiently closely associated with a High Contracting Power of the GC.

If someone can show that these are actually two aspects of exactly the same legal principle, then either the judge Monday was wrong or the army has been acting in violation of its own regulations. Alternately, if anyone can precisely define circumstances where the two questions don't overlap, this no only gets the army off the hook but can help to clarify a seriously confusing issue.

Steve Vladeck

Bobby -- Is it possible that the judges are actually trying to add a layer of process entirely to _vindicate_ the MCA/DTA review scheme? If there is a concern that the CSRTs aren't sufficient, and the commissions require an additional showing prior to trial, might that alleviate, at least to some degree, the concerns raised by the D.C. Circuit in the Bismullah arguments in May?

Bobby Chesney

Interesting suggestion, Steve (Howard's comments of course are very interesting too, but I've only just a moment to reply, so I'll focus on Steve). My off-the-cuff response is that requiring the CSRTs to go back and consider whether the MCA's jurisdictional prerequisites are met would be important vis-a-vis eventual DTA review of any conviction that might result in a commission proceeding. I'm not sure that it does as much for DTA review of the CSRT determination itself. I need to go back and re-read the oral argument transcript to be sure, though, since at the moment I can't recall precisely the points of concern expressed by the panel.

Jeremy Telman

Please forgive the elementary nature of this question, but I am taken aback by this language in the MCA:

"An ‘enemy combatant’ for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

How can the MCA not distinguish between how we are to treat Taliban and al Qaida forces? The Taliban was the de facto government of Afghanistan at the time we invaded. Wouldn't captured Taliban forces be presumptively entitled to POW status and doesn't this defintion treat them as presumptive enemy combatants or even, in many cases, as Bobby suggests, as unlawful enemy combatants?

Bobby Chesney

The President determined in February 2002 that the armed conflict in Afghanistan qualified as an international armed conflict under Common Article 2, insofar as the Taliban alone were concerned. This in theory created the possibility that Taliban members could qualify for POW status if they satisfied the conditions set forth in GPW Article 4. But the President's order went on to conclude on collective basis that Taliban fighters in fact did not qualify for such status under GPW Article 4 (for failure to comply with the "four conditions" specified in Article 4A(2)). There has been much discussion of the merits of that determination, of course. Among other things, it raises an interesting issue as to which of the four conditions, if any, is capable of being resolved collectively for a hostile force rather than on a unit or individual basis. I've written about this to some extent (, see note 335), and Sean Watts, Geoff Corn, and Eric Jensen discuss it in a recent Yale L. J. online essay (

Jeremy Telman

As I recall, William H. Taft IV, as Legal Adviser to the State Department, reached the opposite conclusion in a January 11, 2002 memo.

Jon Weinberg

I write here as someone unburdened by any actual knowledge of the laws of war, but I'm struck by Marty's point that at least the first two charges against Khadr contemplate that he is a war criminal merely by virtue of having engaged in active hostilities against an invading force without satisfying the four conditions. Twenty-odd years ago, there was a shlock movie about a group of Colorado high school students who engaged in (deadly) armed resistance against an occupying Soviet force equipped with Black Helicopters. I didn't realize until now that all of the U.S. heroes were, by the mere fact of their resistance, committing war crimes. Am I missing something?

Jennifer Elsea


How is it that the four criteria in GPW art. 4A(2) apply to the Taliban? Art. 4A(2) applies to "Members of ... militias and ... other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied..." Why aren't the Taliban "armed forces of a Party to the conflict, [or] members of militias or volunteer corps forming part of such armed forces" under GPW art. 4A(1) or "regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power" under GPW art. 4A(3), in either of which cases the four criteria are inapplicable? Do you think the four criteria have become a part of customary law and apply to all categories of combatants irrespective of the definitions of the Geneva Conventions?


Maybe the Colorado kids would have been considered part of a levy en mass under GPW art. 4A(6), which applies to "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." If the legal advisors to the Soviet invaders couldn't figure out some way to determine their ineligibility for such status, perhaps on the basis of insufficient spontaneity or something.

Bobby Chesney

Sorry for the delayed response.

Jeremy - State and OLC reached different conclusions on the issue, as you note. OLC actually concluded that the Taliban was not the government of Afghanistan. The President did not go with that view, but did go with the OLC view on collective disqualification from POW status.

Jon - Gotta love Red Dawn, particularly with Swayze, Sheen, C. Thomas, Lea Thompson, Jennifer Grey, and Powers Booth all in one movie. But as much fun as it was to cheer for the Wolverines, it's hard not to notice today that a number of their actions involve the use of deadly force while purposefully not distinguishing themselves from the civilian population. Note too the scene where they bomb a civilian bookstore on the theory that enemy soldiers frequent it. As for the substantive question you raise - is it really a violation of the law of war to use force without the combatant's privilege? - it's a point of much current dispute.

Jennifer - I write about this issue in the article to which I link in the comment above. In brief, a plain text reading of GPW Article 4A suggests that the criteria only apply to unincorporated militia under Article 4A(2), not to the regular armed forces under Articles 4A(1) or (3). And there is strong but little-noted support in the Geneva negotiations for that proposition as well (all spelled out in my article). And yet it also is the case that there are any number of IHL articles and books that take it for granted that the four criteria apply as well to other categories including 4A(1) and (3). So what gives? The answer, I think, lies in the definition of a regular armed force. The best reading of that concept, in my view, largely if not entirely incorporates the four criteria (existence of a command hierarchy, distinction, open bearing of arms, compliance with law of war). Thus the four criteria would apply as a matter of treaty construction rather than CIL, though there may well also be a case for the proposition that CIL produces the same result.

Jeremy Telman


Thanks for your patience and for such informative responses. This is an area that interets me but that I have not had the time to study in depth.

I thought Taft's memo demonstrated that the OLC memo to which he was responding was simply ignorant of international law. I thought the OLC positions were so thoroughly discredited as to be completely out of bounds. But I admit that impression is not based on thorough research into the issues. I just found Taft's arguments thoroughly persuasive and well-supported and the OLC positions facially unsupported by legal authority.

More generally, and here I am just in rant mode, this episode highlights the utter incompetence and lack of foresight that has characterized the entire "war on terror." It would be funny if it weren't so deplorable that when the government expressed a desire to appeal, the court noted that no appellate body exists.

And Jon's point is well taken. Khadr was a kid who threw a hand grenade at a soldier who was part of a foreign army that had invaded his country. Yet in the hyperbolic rhetoric of this administration, he is labeled one of the "worst of the worst" and a "war criminal."

Bobby Chesney

Well, there were many points of disagreement between the State and OLC on Geneva issues. Certainly the Taliban POW issue is one where there is strong support for State's conclusion, but even though it seems to me that it would have been good policy to carry out individual Article 5 tribunals with respect to Taliban detainees, and even though there are plausible arguments that this approach is required, the contrary position adopted by OLC is not beyond the realm of reason. Indeed, insofar as key interpretive steps adopted by OLC are concerned--in particular, the OLC positions on (i) whether the "four conditions" specified in Article 4A(2) apply by extension to other Article 4A categories and (ii) whether, if so, the conditions may be assessed in whole or in part on a collective basis--I do not recall whether State expressly disagreed. I don't have the relevant documents with me today (I'm traveling), and so I might just be recalling that incorrectly.

Regarding Khadr...I would just emphasize that he wasn't exactly a random person who rose up in spontaneous response to a US invasion. By most accounts, he was in fact an arms-carrying fighter for al Qaeda, trained at al Qaeda military camps well before the US got involved in Afghanistan in the fall of 2001 (something that the US did in self-defense in the aftermath of al Qaeda's own actions). That al Qaeda provided such training and arms to a child is of course reprehensible and unlawful. But let's set aside the issue. The question represented by the charges against him are critical. No one doubts that it is unlawful for al Qaeda to carry out attacks targeting civilians; is it also unlawful for al Qaeda members to engage in combat with our soldiers? At a minimum, I would say, use of lethal force by al Qaeda membesr is unprivileged and therefore prosecutable as crime under relevant domestic law (which is why, for example, it is possible to indict folks involved in attacking the USS Cole). The question presented by the Khadr charge is whether such conduct *also* violates the law of war. The issue is in hot dispute, and will be the most important point to watch for after DoD puts Khadr through a new CSRT in order to establish the AUEC jurisdictional predicate.

Howard Gilbert

"Khadr was a kid who threw a hand grenade at a soldier who was part of a foreign army that had invaded his country." Khadr is a Canadian. When we invade Canada, then he can defend his homeland. In this case, Khadr was part of an al Qaeda unit that infiltrated from Pakistan into Afghanistan and was located in a safe house near the border. The engagement began when these foreign al Qaeda invaders murdered in cold blood two Afghan men who had been sent to talk to them. The best that can be said for Khadr is that he had no role in making these decisions and probably did not participate in the first murders.

Khadr is not charged with "war crimes". He is charged with ordinary crimes (including murder) committed under circumstances that allegedly deprive him of combatant immunity. If this incident occured last year, he would have been turned over to the Afghan government for trial. Since it occurred before Afghanistan had a recognized government during a period of occupation, the military courts of the occupying power have juristiction, especially against ordinary civilian crimes committed against US soldiers. Certainly US civilian courts have no jurisdiction over a murder that occurs in Afghanistan, and the current government may have no juristiction over a crime that occured before it was formed. So if you are going to try a murderer, you have to do it before a military court that has jurisdiction: a Court Martial or (for those found to be unlawful alien enemy combatants) a military comission. Traditionally (Germany, Japan) military comissions try civilians for crimes that occur during occupation, but traditionally they do it quickly in the country being occupied, not years later in a location half way around the world from the place where the crime occurred.

Jennifer Elsea

But Bobby, Art. 4A(1) doesn't say "regular armed forces of a High Contracting Party," it says "armed forces of a Party to the conflict" or "members of militias or volunteer corps forming part of such armed forces." It's difficult for me to see how the four criteria in art. 4A(2) can be read to be incorporated into the treaty for the other categories, other than by presuming it to be a rule of customary international law. At any rate, I think it would be clearer to argue that the Taliban fail to qualify for combat immunity for whichever specific criterion it is that they fail to meet, without reference to art. 4A(2). Because that article, on its face, does not appear to apply to the Taliban, unles they somehow "belong to" a party to the conflict. (I promise I'll read, or maybe reread your article when I get the chance).

I think it is worth remembering that the four criteria originally were used in the Hague Convention to determine whether the laws of war apply at all to a conflict. The rights and obligations of the convention belonged to those armed forces meeting the criteria. If the enemy failed to meet them, they were 'uncivilized' and could be fought using pretty much whatever methods were deemed appropriate, but the disadvantage was they couldn't be charged with violating the laws of war. Although, as you mentioned, they might be charged under domestic law if the detaining power had jurisdiction. That Geneva was intended to extend the obligations --but not the rights-- of war to a wider group of combatants has never struck me as particularly likely, but those High Contracting Parties may be a sneaky bunch. The advantages of being able to invade a foreign country and deny combatant rights to everyone who fights back AND still be able to charge them for war crimes, while according them neither civilian nor combatant protections, are apparent.

Jon Weinberg

Howard, the first two charges in the Khadr referral state that Khadr committed, and attempted to commit, murder "in violation of the law of war." I've no quarrel with the proposition that the killing or attempted killing of combatants, committed under circumstances that deprive the actor of combatant immunity, is unprivileged and therefore prosecutable under domestic law. But -- and this is the point Bobby characterizes as being in hot dispute --that's different from the statement in the referral that the acts were "in violation of the law of war," is it not? My larger concern here is with the picture of a generic insurgency in which essentially all of the native resistance operate without complying with the four conditions -- think, say, the French Resistance during WWII. It's one thing to say that the members of the resistance, if captured by the occupying forces, could be prosecuted under domestic law. But to say that all of the members of the resistance were violating the laws of war, simply by virtue of doing what insurgents do, seems to extend that boundary in an unhelpful way.

Jon, if Khadr was a soldier who had hidden in a group of women and children, pretended to be a civilain, waited until your back was turned, and then killed you, this would be murder in violation of the laws of war. If he had advanced under a flag of truce and then killed someone, this would be murder in violation of the laws of war. In both cases, it is a crime without regard to the question of whether Khadr is a lawful combatant or not. In this case he threw a grenade while hidden after an air strike. I see no plausible claim or theory that this would have been illegal if done by a lawful combatant.

So while I can transform (with a bit of twisting) the charge into something that makes sense (murder by an unprivileged belligerent) I cannot identify any plausible "war crime" in the normal sense that it would be a crime if committed by a privileged combatant. I suspect this will not get sorted out until the commission starts up again and clarifies the charge (or tosses it out in ten minutes just as they did the question of jurisdiction).

Sebastian Dangerfield

Jeremy: Precisely. Among the myriad flaws of the MCA is the fact that, by fiat, it simply purports to dispose of many highly contestable issues, e.g., whether an individual fighting on behalf of the Taliban -- which, like it or not, was the government of Afghanistan at the time -- is an "unlawful combatant" and therefore unworthy of Geneva Convention protections as a POW (as opposed to just Common Article III protections). The legislation thus attempts to stuff the rabbit in the hat ahead of time, allowing the military's distinctly marsupial CSRTs to simply declare, hey presto, you are an "unlawful enemy combatant."

Bobby Chesney

A quick response to Jennifer's always-insightful comment: You note that Art. 4A(1) doesn't say "regular" armed forces of a party but, rather, just the "armed forces" or militias/volunteers belonging to a party. Fair enough - I was sloppy in using the word "regular" in the earlier post. But my original point remains; one way to explain the view that some if not all of the four criteria apply even to the members of the armed forces of a party is to view them as part of the definition of "armed forces." I'm not saying that's dispositive of the issue, of course, but simply that this is one way to rationalize an understanding that appears to be relatively widespread today despite the implications of the plain text and the drafting history. CIL is another way, of course, though then we need to have an inquiry into state practice and opinio juris. I'm not in my office right now, and so can't refer to the recent ICRC study...but my recollection is that there is no specific discussion of this particular issue.

Arne Langsetmo


Almost every obvious reason why someone might be denied POW status is also a criteria rendering them an unlawful combatant.

Not exactly. GC4 allows for the detention of civilians for security reasons, and the regular tribunals are suposed to decide if any such people are civilians under GC4 or POWs under GC3 (which provides that they should get paid even, during captivity, for instance). There may be plenty of civilians that you might want to restrict or detain for various reasons in an occupation or war zone ... but that starts to make less sense when you ship them half the way around the world as we've done with the Guantanamo prisoners. To be sure, the U.S. gummint has been less than forthcoming on saying why any of these folks are being held, and assuming they're probably "unlawful combatants" because they ended up in Gitmo kind of begs the question....


Jennifer Elsea

Bobby, that sounds entirely reasonable. But, I have a hard time accepting the view that the four criteria are implicit in the definition of "armed force" because if the Taliban fighters do not comprise an "armed force," then what are they and how can we be at "war" with them? You have to have opposing armed forces in order to have an armed conflict. I agree that an armed force has to have some organizational structure with responsible leadership, but the other criteria seem to describe obligations that apply to members of armed forces rather than defining characteristics. Of course, all combatants must distinguish themselves from the civilian population (at least when attacking), but failure to do so is a violation for the soldier involved and does not make the entire organization something other than an armed force. It makes sense to include the four criteria in art. 4A(2), essentially treating combatants who are not really part of a party to a conflict as legitimate only if they follow the rules. Otherwise, they are civilians participating in hostilities without authority. But to treat the opposing armed forces themselves as civilians who are participating unlawfully in an armed conflict goes against the very definition of armed conflict, which requires at least two opposing belligerent parties (unless you're talking about a non-international armed conflict under Common Article 3). At least, prior to 9-11 it did. Which is not to say that individual members of such an armed force always qualify for POW status regardless of the four criteria (they can be denied POW status if they are spies or saboteurs). But the blanket denial that an opposing force is "the armed force of a party to the conflict" seems to me to call into question whether the laws of war apply at all.

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