The Hamdan Case and the
Application of a Municipal
Offence
The Common Law Origins of ‘Murder inViolation
of the Law of War’
John C. Dehn*
Abstract
This article examines the legal origins of ‘murder in violation of the law of war’, an
offence defined in the US Military Commissions Act (MCA) and resorted to in the
case against Salim Ahmed Hamdan. Hamdan was acquitted of conspiring to commit
this offence based in part on a questionable legal instruction. The acquittal may have
been proper under a correct view of the law. Nevertheless, the specific context in
which this offence was alleged, combined with the judge’s instruction, highlights key
aspects of the US approach to the prosecution of unprivileged fighters for a ‘law of
war violation’. This approach, which is substantially represented by the US Supreme
Court’s judgment in Ex parte Quirin, has been criticized by International
Humanitarian Law (IHL) scholars as an erroneous view of customary IHL.
However, close analysis of the legal and historical context in which this approach
developed reveals that ‘murder in violation of the law of war’ is a municipal US
offence that represents an English common law implementation of the law of
nations. This article explains why reading this offence to incorporate IHL war
crimes, as Hamdan’s judge did, is inappropriate in the context of the MCA and
Hamdan’s case. It then demonstrates that the authorities relied upon by the Quirin
Court, the Lieber Code and a treatise by authoritative US military law commentator,
WilliamWinthrop, understood punishment for law of war violations to be permitted
by the law of nations but imposed under municipal law. Thus,‘murder in violation of
the law of war’ is properly viewed as a municipal, common law offence punishing
*
Assistant Professor, United States Military Academy (USMA), West Point, NY; Major, Judge
Advocate General’s Corps, US Army; Member, Editorial Committee of this Journal. The views
expressed in this article are solely the author’s and do not necessarily reflect those of the US
Army, US Military Academy or any other department or agency of the US government. The
author thanks Mr Richard Jackson, Lieutenant Colonel Eric Jensen and Colonel James
Schoettler for their comments on a much earlier draft. Any remaining errors or misunderstandings are solely the author’s. [[email protected]]
............................................................................
Journal of International Criminal Justice 7 (2009), 63^82
doi:10.1093/jicj/mqp015
ß Oxford University Press, 2009, All rights reserved. For permissions, please email: [email protected]
64
JICJ 7 (2009), 63^82
unprivileged fighters. In future studies the author will address the appropriateness of
prescribing and enforcing this municipal offence in extraterritorial armed conflict.
1. Introduction
On the day prior to the verdict, news reports indicated that the military judge
presiding over Salim Ahmed Hamdan’s (hereinafter Hamdan) military commission realized he had made an error ç the Judge instructed the Commission’s
panel1 that Hamdan could not be found guilty of conspiracy to commit ‘murder
in violation of the war’ under the Military Commissions Act of 2006 (MCA)2
unless the intended object of the conspiracy was the murder of a person
protected by the laws of war.3 The second specification of Charge I alleged
that Hamdan conspired with ‘members of al Qaeda or Taliban’ to murder ‘[US]
or Coalition service members serving as pilots, crew, or passengers of [US] or
Coalition military aircraft’.4 Notwithstanding the obvious damage to its case ç
for at least some of these pilots and crew were ‘lawful combatants’ and not
persons protected by IHL5 ç the prosecution elected to let the erroneous
1 A ‘panel’ is the entity that performs the equivalent functions of a jury in US/English legal
systems. It is the body that determines guilt or innocence at both military commissions and
courts-martial in the US military.
2 See Dep’t of Defense, MC Form 458, Charge Sheet pertaining to Salim Ahmed Hamdan 4
(5 April 2007), available at http://www.defenselink.mil/news/May2007/Hamdan_Charges.pdf
[hereinafter Hamdan Charge Sheet] (visited 15 September 2008).
3 Jane Sutton, Mistrial avoided in Guantanamo court, Reuters (UK) (6 August 2008) available
at http://uk.reuters.com/article/UKNews1/idUKN0532374620080805?pageNumber¼2&virtual
BrandChannel¼0 (visited 15 September 2008); William Glaberson, ‘Guantanamo Bay Judge
Admits Possible Error’, N.Y. Times (6 August 2008), at 18, available at http://www.nytimes.com/
2008/08/06/washington/06gitmo.html?hp (visited 14 September 2008).
4 Hamdan Charge Sheet, supra note 2, at 4. US military practice utilizes a ‘charge’ that may
include one or more specifications or alleged offences. Hamdan’s Charge I had two specifications. The first alleged that Hamdan had conspired with al Qaeda from February 1996 until his
capture in November 2001 to attack persons and places, such as civilians and civilian objects,
protected by international humanitarian law (IHL), and also to commit murder in violation of
the law of war. Hamdan Charge Sheet, supra note 2, at 3^4. More fully, the second specification
alleged: ‘In that Hamdan, a person subject to trial by military Commission as an alien unlawful
enemy combatant, did, in Afghanistan, on or about November 24, 2001, willfully enter into an
agreement with one or more known or unknown members of a1 Qaeda or Taliban to commit
the offense of Murder in Violation of the Law of War, a substantive offense subject to trial by
military Commission, to wit; the murder of United States or Coalition service members serving
as pilots, crew or passengers of United States or Coalition military aircraft, knowing the unlawful purpose of said agreement and joining into said agreement willingly with the intent to
further said unlawful purpose, knowingly commit an overt act in order to accomplish some
object or purpose of said agreement, to wit, transporting on ore more SA-7 surface to air
missiles, to be ultimately used to unlawfully and intentionally kill said United States or
Coalition service members’.
5 I will not here attempt to distinguish between military and civilian air crew members or
passengers and merely note that the specification is imprecise on this issue.
The Hamdan Case and the Application of a Municipal Offence
65
instruction stand rather than risk a mistrial.6 Hamdan was ultimately
acquitted of the offence.7
This article does not purport to determine whether Hamdan is properly
considered an ‘unlawful combatant’ or unprivileged fighter subject to the
Commission’s jurisdiction,8 or even whether he might be properly found guilty
of this or any other offence for his alleged conduct. Nor does the article address
the appropriateness of applying the offence of ‘murder in violation of the law of
war’ to conduct in an extraterritorial armed conflict. The sole focus of this
article is whether the offence of ‘murder in violation of the law of war’ is a
municipal common law offence rather than an erroneous attempt to identify a
crime defined by international law.9 The context in which the offence was
alleged in Hamdan’s case emphasizes the legal origins and nature of the US
approach to punishing so-called ‘unlawful combatants’ for a ‘law of war violation’, an approach somewhat poorly and incompletely articulated in the US
Supreme Court’s decision in Ex parte Quirin.10
6 Sutton, supra note 3; Glaberson, supra note 3.
7 Hamdan was acquitted of Charge I, including both specifications discussed supra at note 4.
8 See supra notes 4 and 7. By resting its decision solely on post-11 September 2001 (9/11) conduct,
the Commission avoided determining whether Hamdan’s alleged pre-9/11 conspiratorial conduct and material support to terrorism constituted engaging in or purposefully and materially
supporting hostilities, a prerequisite to the Commission’s personal jurisdiction under the
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 [hereinafter MCA]
(codified at 10 USCA xx 948a-950w (West Supp. 2007)). The MCA confers personal jurisdiction
only over ‘a person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is not a lawful enemy
combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).’ 10
USCA 948a(1)(A)(i) (emphasis added). Therefore, the general acquittal on this specification
might cause appellate tribunals to more carefully review whether the Commission had personal jurisdiction over each offence of which Hamdan was convicted. Although beyond the scope
of this article, there is at least a viable question as to whether Hamdan was a combatant and
thereby subject to the jurisdiction of a MCA tribunal prior to 9/11. It is not clear that an armed
conflict existed between the United States and al Qaeda prior to that date, or that Hamdan
participated in any ‘hostilities’ or conduct preparatory to them if there was. The US Supreme
Court did not conclusively determine the date of inception of the non-international armed
conflict it found to exist in Afghanistan between the US and al Qaeda in Hamdan v. Rumsfeld.
Therefore, whether Hamdan could be an ‘unlawful combatant’ subject to the jurisdiction of a
MCA commission for MCA offences alleged to have been committed prior to 9/11 is in doubt.
9 While it might seem odd to examine an offence for which a defendant was acquitted, it is no
mere academic matter in this case. The Commission determined its personal jurisdiction over
Hamdan based solely on the conduct alleged in this specification. See United States v. Hamdan,
On Reconsideration: Ruling on Motion to Dismiss for Lack of Jurisdiction 6-7 (19 December
2007) available at http://www.defenselink.mil/news/Dec2007/Hamdan-Jurisdiction%20
After%20Reconsideration%20Ruling.pdf [hereinafter Hamdan Jurisdiction Ruling] (visited 15
September 2008); J.C. Dehn, ‘Why Article 5 Status Tribunals are not ‘Required’ at Guanta¤namo’,
6 Journal of International Criminal Justice (2008) 371^383 (analysing the jurisdictional ruling
and questioning its narrowness).
10 Ex parte Quirin, 317 US 1 (1942) [hereinafter Quirin, 317 US]. Quirin is further analysed in part 4,
infra.
66
JICJ 7 (2009), 63^82
This approach, which is seemingly unique to the United States, has been
criticized by scholars as inconsistent with IHL.11 According to these scholars,
engaging in combat or hostilities as a privileged belligerent has long been
understood to provide immunity from prosecution for the acts of violence
(such as murder, assault or destruction of property) forming a lawful part of
those hostilities.12 Failing to meet the requirements of privileged belligerency
only removes that combatant immunity, permitting prosecution under municipal criminal law for those acts of violence.13 Unless those acts independently
constitute a war crime, such as intentionally attacking civilians, IHL does not
deem them a crime or require punishment.14 This MCA offence, its commentary in the Manual for Military Commissions (MMC) and the judge’s error all
highlight key points of confusion surrounding the Quirin decision, its underlying authority and this US approach to unprivileged fighters.
Section 2 of this article analyses the offence and its commentary in relation
to IHL, explaining how it might be read to generally incorporate IHL war
crimes. It then explains why in reality ‘murder in violation of the law of war’
should not be read to incorporate IHL war crimes that result in death, and
should rather be interpreted as a municipal offence. In so doing it will be
shown why attempting to incorporate IHL war crimes into this offence is
problematic under IHL and the circumstances of Hamdan’s case.
Section 3 analyses Quirin and its underlying authority. That examination
reveals that the US Supreme Court’s decision in Quirin clearly rests on legislative adoption of a municipal ‘common law’ implementation of the law of
nations. This municipal common law was not an attempt to articulate a crime
defined or made punishable by the law of nations or positive IHL, but rather to
implement punishment permitted by it. Municipal law in that regard may, to a
certain extent, go beyond the scope of IHL and criminalize conduct that is not
made directly punishable by the laws of war. Thus, the MCA’s ‘murder in violation of the law of war’ offence codifies a municipal offence that incorporates
participation in hostilities without privileged status under IHL as a required
element. The propriety of its extraterritorial application will not be addressed at
this stage, and will be the object of further study.
Finally, it ought to be clarified that this article will not address general issues
regarding the applicability of IHL or a municipal ‘common law of war’ to transnational terrorism or to the conflict between the United States and al Qaeda.15
11 See e.g. Y. Dinstein, The Conduct of Hostilities under the Law of Armed Conflict (New York:
Cambridge University Press, 2004), at 29^30; M.D. Maxwell and S.M. Watts, ‘Unlawful Enemy
Combatant’: Status, Theory of Culpability, or Neither?’, 5 Journal of International Criminal Justice
(2007) 19^25, at 23^24.
12 Ibid., at 31.
13 Ibid.; Maxwell and Watts, supra note 11.
14 Dinstein, supra note 11, at 31.
15 On this issue, see M. Sasso'li, ‘Terrorism and War’, 4 Journal of International Criminal Justice
(2006), at 962^966; J. Stewart, ‘The Military Commissions Act’s Inconsistency with the Geneva
Conventions: An Overview’, 5 Journal of International Criminal Justice (2007), at 27^28. In this
article it is taken as a given that the US Supreme Court’s conclusion (Hamdan v. Rumsfeld, 126 S.
Ct. 2749, 2795^2796 (2006)) that the conflict between the United States and al Qaeda, at least in
The Hamdan Case and the Application of a Municipal Offence
67
It will also not address the appropriateness of vesting jurisdiction to adjudicate
this municipal ‘law of war’ offence in MCA Commissions.
2. The MCA’s ‘Murder in Violation of the Law of War’
Offence and IHL
It is not initially clear whether the MCA’s ‘murder in violation of the law of war’
offence intends to address conduct denominated a war crime by IHL. This
section explains the reasons for this confusion as revealed by the elements of
and MMC commentary to the offence. It then clarifies why reading this offence
to generally incorporate IHL war crimes resulting in death, as the judge in
Hamdan’s case appears to have attempted, is improper and problematic.
A. The Judge’s Instruction
News reports are not entirely clear regarding the precise legal instructions
Hamdan’s military judge gave to the Commission’s panel.16 It is only clear that
in relation to any conspiracy to commit murder in violation of the law of war,
he instructed the panel that the conspiracy must have as its object the killing
of one or more persons protected by IHL.17
This instruction is plainly inconsistent with the MCA, which defines the
offence of ‘murder in violation of the law of war’as killing ‘one or more persons,
including lawful combatants, in violation of the law of war’.18 Given that the alleged
objects of this conspiracy were pilots and crew of the United States and coalition
aircraft, including at least some who were lawful combatants, the military
judge’s failure to account for this statutory language is curious. It does, however,
highlight that there are two potential approaches to interpreting the charge.
B. The Offence, Its Elements and the MMC Commentary
Much can be said regarding whether this offence is properly labeled or titled.
‘Murder in violation of the law of war’ is nowhere listed as a breach or grave
Afghanistan, is a non-international armed conflict subject to Common Article 3 of the Geneva
Conventions. It therefore assumes, without determining, that the conflict is subject to all
customary IHL and any related municipal law potentially applicable in non-international
armed conflict. Of the four Geneva Conventions, the two most relevant to this conflict are the
Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135
[hereinafter GPW], and the Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, 12 August 1949, 75 UNTS 287.
16 The author has been unable to locate or obtain an official copy of the instructions.
17 Sutton, supra note 3.
18 10 USCA 948v(b)(15) (West Supp. 2007) (emphasis added).
68
JICJ 7 (2009), 63^82
breach of any convention.19 Little might be said regarding the substance of the
offence if interpreted in accordance with a plain reading of its text and elements in relation to IHL.20 Many IHL violations that result in death are classed
as grave breaches21 and hence, war crimes.22 This offence might unobjectionably be read to generally incorporate such crimes.
The MMC commentary for this offence attempts something different. Its
description of the conduct prescribed by the offence states the following.
For the accused to have been acting in violation of the law of war, the accused must have
taken acts as a combatant without having met the requirements for lawful combatancy. It is
generally accepted international practice that unlawful enemy combatants may be prosecuted for offenses associated with armed conflicts, such as murder; such unlawful enemy
combatants do not enjoy combatant immunity because they have failed to meet the requirements of lawful combatancy under the law of war.23
This commentary appears to alter the scope of the offence to one focused on a killing by an unprivileged fighter. Thus read, it appears to accurately reflect the commonly understood consequences of unprivileged belligerency discussed above.24
The application of this offence to conduct in extraterritorial armed conflict
and its punishment by a military tribunal might lead one to conclude that the
conduct is viewed as a crime punished by IHL. In that case, the commentary
would implicate the common understanding of the US Supreme Court’s decision
in Ex parte Quirin,25 a decision criticized as inconsistent with IHL.26 The validity
19 See K.J. Heller,‘Privileged and Unprivileged Belligerency’ (arguing the offence is non-existent) at
http://www.terraplexic.org/ctlabsymposia/2008/10/2/privileged-and-unprivileged-belligerency.
html (visited 2 January 2009).
20 The elements of the crime in the Manual for Military Commissions are:
(1) One or more persons are dead;
(2) The death of the persons resulted from the act or omission of the accused;
(3) The killing was unlawful;
(4) The accused intended to kill the person or persons;
(5) The killing was in violation of the law of war; and
(6) The killing took place in the context of and was associated with an armed conflict.
21
22
23
24
25
26
US Department of Defense, Manual for Military Commissions (18 January 2007) [hereinafter
MMC], IV-12.
See, for example, Art. 85(3) of the Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflict, 8 June 1977
[hereinafter AP I] which defines grave breaches to include several violations of the Protocol
that cause ‘death or serious injury to body or health’.
Art. 85(5) of AP I provides that ‘[w]ithout prejudice to the application of the Conventions and of
this Protocol, grave breaches of these instruments shall be regarded as war crimes’.
MMC, supra note 20, at IV-11.
See supra part 1.
Ex parte Quirin, 317 US 1 (1942). Quirin is further analysed in part 4, infra.
See e.g. Dinstein, supra note 11, at 29^31. See also R.R. Baxter, ‘So-Called ‘Unprivileged
Belligerency’: Spies, Guerillas, and Saboteurs’, 28 British Yearbook of International Law (1951), at
323. Baxter criticizes the Quirin decision for confusing acts punishable under international law
with those for which international law provides no protection. Ibid., at 339^340. Baxter fails to
The Hamdan Case and the Application of a Municipal Offence
69
of this commentary would therefore depend upon whether the ‘law of war’
offence being punished is an appropriately prescribed and enforced municipal
murder offence, or whether it is an erroneous attempt to define an IHL war crime.
It is important to note that the MMC’s commentary has no binding effect on
this or any future Commission. In US military tribunals, such commentary is
generally understood to represent only a potential interpretation of the offence.
It does not alter a tribunal’s obligation to independently interpret the law creating
the offence.27 It is therefore appropriate to more fully consider both potential
facets of the offence, beginning with the judge’s IHL-based instruction.
C. Unprivileged Fighters, the MCA and Modern IHL
Hamdan’s military judge appears to have attempted to interpret this offense in
a manner consistent with IHL. In spite of the commentary to the offense,
reading ‘law of war’ to refer to IHL is not necessarily in error. In its decision
in Hamdan v. Rumsfeld, the US Supreme Court found that a statutory reference
to ‘law of war’ incorporated the requirements of Common Article 3 of the
Geneva Conventions in the context of Hamdan’s case.28
A similar reading of this offence would lead one to conclude that it prescribes all IHL war crimes resulting in death. In the context of the MCA, this
is highly problematic for two reasons. First, the MCA already defines several
other violations of IHL that result or could result in death as separate offences.
These include crimes such as the ‘murder of protected persons’ and ‘attacking
civilians’.29 The judge’s interpretation of the conduct prescribed by the ‘murder
in violation of the law of war’ offence renders these offences redundant or
superfluous. Such an interpretation should therefore be avoided.
Additionally, the judge’s instruction is incomplete regarding the potential
scope of IHL offences. It appears to rest, at least in part, on his failure to
recognize that the killing of a combatant adversary may be a war crime under
appropriate circumstances. Of the many possible circumstances, the one most
relevant to Hamdan’s case is the IHL prohibition of treachery or perfidy.
recognize that Quirin depends upon a municipal common law, as demonstrated herein, which
Baxter admits can form the basis of criminal punishment. Ibid., at 340.
27 United States v. Hamdan, Ruling on Defense Motion to Dismiss Conspiracy (1 June 2008) (determining that the Commission could interpret the intended scope of the conspiracy definition in
the MCA without deference to the MMC and disallowing the government’s pursuing a joint
criminal enterprise theory of responsibility as to conspiracy charges) available at http://
www.defenselink.mil/news/Hamdan%20AE’s%20206-216.pdf (visited 3 October 2008). See
also United States v. Czeschin, 56 M.J. 346, 348 (C.A.A.F. 2002) (declaring that commentary in
the Manual for Courts-Martial does not control a court-martial’s interpretation of a statutory
offence); see also United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998) (same); United States v.
Mance, 26 M.J. 244, 252 (C.M.A. 1988) (same).
28 See Hamdan, 126 S. Ct., at 2795^2796.
29 See 10 USCA x 950v(b)(1)-(2) (defining the offences of ‘murder of protected persons’, ‘attacking
civilians’, ‘attacking civilian objects’, ‘attacking protected property’, ‘pillaging’, ‘denying quarter’,
‘taking hostages’ and ‘employing poison or similar weapons’).
70
JICJ 7 (2009), 63^82
1. A Brief Review of the Modern War Crime of Treachery/Perfidy
Modern IHL maintains the long-accepted view that although combatants are
legitimate objects of a military attack, treacherously wounding or killing
a combatant adversary is a war crime. Treachery against an enemy is prohibited in the 1863 Lieber Code30 and the 1899 and 1907 Hague Regulations.31 It is
also an offence in the Rome Statute for the International Criminal Court (hereinafter ICC Statute) applicable in both international and non-international
armed conflict.32
Historically, treachery encompassed acts of perfidy, meaning the feigning
and betraying of a status protected by IHL.33 Treachery was a broader prohibition encompassing more than just perfidious acts.34 The Lieber Code prohibited ‘clandestine or treacherous attempts to injure an enemy’;35 the Hague
Regulations, treacherous killing or wounding of ‘individuals belonging to the
hostile nation or army’.36 Additional Protocol I (hereinafter AP I) separately
defines acts of perfidy, isolating them from other historical aspects of treachery.
Article 37 of AP I states that ‘[i]t is prohibited to kill, injure or capture an
adversary by resort to perfidy.’37 It defines perfidy as ‘[a]cts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged
to accord, protection under the rules of international law applicable in
30 US War Department, General Orders 100: Instructions for the Government of Armies of the United
States in the Field (1863) [hereinafter Lieber Code] Art. 101, reprinted in D. Schindler and
J. Toman (eds), The Laws of Armed Conflict: A Collection of Conventions, Resolutions, and Other
Documents (Boston: Martinus Nijhoff Publishers, 2004) [hereinafter Laws of Armed Conflict],
3^23.
31 Convention (IV) Respecting the Laws and Customs of War on Land [hereinafter Hague
Convention] and its annex: Regulation Concerning the Laws and Customs of War on Land,
The Hague, 18 October 1907 [hereinafter Hague Regulations], Art. 23(b) reprinted in Laws of
Armed Conflict, supra note 30, at 55^87.
32 See Arts 2(b)(ix), (xi) and 2(e)(ix) ICCSt. On the scope of the perfidy prohibition applicable in
non-international armed conflict, see J.C. Dehn, ‘Permissible Perfidy? Analysing the Colombian
Hostage Rescue, the Capture of Rebel Leaders and the World’s Reaction’, 6 Journal of
International Criminal Justice (2008) 627^653.
33 It is interesting to note, however, that Lieber defined perfidy as using the enemy’s flag or other
national emblem to deceive the enemy which resulted in losing any ‘claim to the protection of
the laws of war’. Lieber Code, supra note 30, Art. 65.
34 See M. Greenspan, The Modern Law of Land Warfare (Berkeley: University of California Press,
1959) (defining treachery to include assassinations, putting a price on the enemy’s head, ‘dead
or alive’ rewards, and other acts which fit within the AP I definition of perfidy); Dinstein, supra
note 11, 198^199 (similar); International Committee of the Red Cross, J.-M. Henckaerts and
L. Doswald-Beck (eds), Customary International Humanitarian Law, vol. I (Cambridge:
Cambridge University Press, 2005) [hereinafter ICRC IHL 1], 221^226 (analysing the scope of
the perfidy prohibition applicable in international and non-international armed conflict with
reference to laws against assassination).
35 Lieber Code, supra note 30, Art. 101.
36 Hague Regulations, supra note 31, Art. 23(b). It is not clear whether the Hague Regulations
would delimit treacherous killing of ‘individuals of the hostile nation’ to incidents of targeted
killing or assassination. See A.P.V. Rogers, Law On the Battlefield (2nd edn., Manchester:
Manchester University Press, 2004), 44^45.
37 AP I, supra note 21, Art. 37(1).
The Hamdan Case and the Application of a Municipal Offence
71
armed conflict, with intent to betray that confidence.’38 It then provides a nonexclusive list of perfidious acts, to include ‘the feigning of civilian,
non-combatant status’.39 Oddly, only a very limited number of acts deemed to
constitute perfidy in Article 37 of API are identified as grave breaches in
subsequent provisions of the protocol. The protocol excludes the feigning of
civilian status as a grave breach.40
The treachery prohibitions of the ICC Statute criminalize a broader range
of conduct, including each perfidious act enumerated in Article 37 of AP I.41
Interestingly, its treachery prohibitions are limited to perfidious acts,42 rather
than the broader historical understanding of treachery, which included other
acts such as assassination.43
2. The Overlap of ‘Perfidy’ with ‘Murder in Violation of the Law of War’ under
the MCA and its Problematic Application to Hamdan
The MCA’s perfidy offence adopts an expensive definition of perfidy, an amalgam of the sources discussed above.44 Hamdan, however, was not charged with
the MCA’s perfidy offence. He was alleged to have conspired with unknown al
Qaeda or Taliban, presumably also deemed unlawful combatants,45 to kill US or
coalition combatants. If the judge had properly interpreted the scope of the
‘murder in violation of the law of war’ offence to the full extent of IHL war
crimes, these two offences would necessarily overlap. In the context of
Hamdan’s case and this charge, the only possible IHL offence Hamdan could
38 Ibid.
39 Ibid.
40 Ibid., Art. 85(3)(f) (limiting grave breaches to ‘[t]he perfidious use, in violation of Article 37, of
the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective
signs recognized by the Conventions or this Protocol’).
41 See Arts 2(b)(xi) and (2)(e)(ix) ICCSt., Elements of Crimes (requiring only the intent to feign
entitlement ‘to protection under rules of international law applicable in armed conflict’).
42 Ibid.
43 See supra notes 34, 36 and 41.
44 10 USCA x 950v(b)(17) provides the following definition and punishment: ‘Using treachery or
perfidy. - Any person subject to this chapter who, after inviting the confidence or belief of one
or more persons that they were entitled to, or obliged to accord, protection under the law of
war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such
person or persons shall be punished, if death results to one or more of the victims, by death or
such other punishment as a military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other than death, as a military
commission under this chapter may direct.’
45 See 10 USCA x 948a(1)(A)(i) (appearing to categorically define members of al Qaeda and Taliban
forces as unlawful combatants); Memorandum from George W. Bush, President of the United
States, to Richard Cheney, Vice President of the United States, et al., ‘Humane Treatment of al
Qaeda and Taliban Detainees’, para. 2(b) (7 February 2002) [hereinafter Humane Treatment
Memo] reprinted in K.J. Greenburg and J.L. Dratel (eds),The Torture Papers: The Road to Abu Ghraib
(New York: Cambridge University Press, 2005) [hereinafter Torture Papers], 134^135 (categorically determining that neither the Taliban nor al Qaeda met IHL requirements for prisoner of
war status).
72
JICJ 7 (2009), 63^82
have conspired to commit that might have resulted in the unlawful killing of
combatant adversaries is perfidy. This would render the perfidy offence redundant, again counseling against such an interpretation.
There are other reasons why it is problematic to apply this offence in the
context of Hamdan’s case. In substance, the Government alleged that Hamdan
and his co-conspirators, either Taliban or al Qaeda, fought in Afghanistan as
unprivileged fighters. This was based not only on their failure to distinguish
themselves from non-combatants,46 but also on al Qaeda’s status relative to IHL
treaties and the Taliban’s asserted failure to meet IHL requirements of privileged belligerency.47 Therefore, combatant immunity would not apply to a killing by any one of them in the course of hostilities.
The act of killing a combatant not hors de combat can be a war crime under
modern IHL, but in the specific context of Hamdan’s alleged offence only under
circumstances amounting to treachery/perfidy.48 Such an approach would
require evidence that Hamdan or one of his alleged co-conspirators49 intended
both to feign an IHL protected status and to betray that status in the killing of
combatant adversaries. In order to properly give such an instruction, Hamdan’s
military judge must have found sufficient evidence to permit the panel to infer
those elements of intent.
While one might infer intent to feign protected civilian status and intent to
betray that status from a combatant’s wearing civilian clothes, the inference
should only be permitted rather than required. Indeed, it is not even clear
whether Hamdan should be considered a combatant who could feign civilian
status, or merely a civilian who directly participated in hostilities.50 Because
unprivileged fighters do not necessarily violate a customary IHL treachery/
perfidy prohibition, the US cannot rely on any IHL-defined war crime to justify
a criminal sanction for hostilities by unprivileged fighters. The law supporting
the MMC commentary, if any, requires a closer analysis of its basis in US law.
This requires a review of the Quirin decision and its underlying authority.
46 Humane Treatment Memo, supra note 45. See also Memorandum from John Yoo and Robert J.
Delabunty, Deputy Assistant Attorneys General to William J. Haynes II, General Counsel,
Department of Defense, ‘Application of Treaties and Laws to al Qaeda and Taliban Detainees’
(9 January 2002), x III(D) reprinted in Torture Papers, supra note 45, at 38^79.
47 Ibid., at x III(C) and III(D).
48 Clearly there are other potential IHL offences, such as the use of weapons inflicting unnecessary suffering, potentially applicable if fairly raised by the facts.
49 To be clear, I again note that this article will not address whether conspiracy is an appropriate
theory of criminal responsibility in IHL. The intent requirement articulated here rests on
traditional understandings of conspiracy. The alleged agreement must have included an understanding that one of the co-conspirators intended to feign protected status and betray that
status to kill a combatant adversary.
50 The Commission’s jurisdiction decision found Hamdan’s conduct to constitute a direct participation in hostilities rendering him an ‘unlawful combatant’ subject to its jurisdiction. See
Hamdan Jurisdiction Ruling, supra note 9. Art. 51(3) of AP I, asserted to reflect customary
IHL, declares that civilians lose their enumerated protections ‘unless and for such time as
they take a direct part in hostilities’ [hereinafter DPH]. The consequences of DPH under IHL
are currently the subject of much debate. The International Committee of the Red Cross is
expected to soon issue a report on the subject.
The Hamdan Case and the Application of a Municipal Offence
73
3. Quirin and Municipal Common Law under
the Law of Nations
The Quirin case arose during the international armed conflict of the SecondWorld
War.51 German saboteurs infiltrated the US carrying explosives, buried their
uniforms, donned civilian clothing, and intended to strike military industrial
targets.52 They were captured before completing a successful attack.The primary
question before the court was whether the saboteurs could be tried by military
commission for alleged law of war violations. In the course of deciding that question, the court addressed the nature of the offences with which the saboteurs
were charged. Close analysis of the opinion and its underlying authority reveals
that the court in Quirin viewed these offences as a municipal, English common
law implementation of the customary law of war under the law of nations.
The Quirin Court found that the German saboteurs were properly charged
with law of war offences, giving their military commissions subject matter
jurisdiction. Regarding its analysis of substantive law of war offences, scholars
criticize the Quirin decision for the following statement:53
Lawful combatants are subject to capture and detention as prisoners of war. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial
and punishment by military tribunals for acts which render their belligerency unlawful.54
As noted by Professor Dinstein, this statement may not accurately reflect
IHL.55 Unprivileged fighters, meaning those not meeting the requirements of
a privileged belligerent status under IHL, may sometimes be punished for ‘the
acts which render their belligerency unlawful’. However, as Dinstein notes,
unprivileged fighters may be prosecuted for acts of hostilities while in unprivileged status (meaning crimes, such as murder, forming a part of those hostilities), or for acts that are independently war crimes such as attacking
civilians.56 In the first instance, the lack of privileged status is relevant to
establishing a punishable offence. In the latter example, it is not. The key to
the Quirin Court’s statement lies in understanding its view of what makes one
an ‘unlawful combatant’.
A. The Quirin Decision and Its Underlying Authority
The Quirin Court found that the German saboteurs were ‘unlawful combatants’ subject to prosecution by the ‘common law’ applied by US
51 Quirin, 317 US, at 20.
52 Ibid., at 21. For a more thorough account that is also critical of equating of the Quirin defendants to al Qaeda terrorists, see generally P. O’Donnell, In Time of War: Hitler’s Terrorist Attack on
America (New York: The New Press, 2005)
53 See e.g. Dinstein, supra note 11, at 30; Baxter, supra note 26; Maxwell and Watts, supra note 11.
54 Quirin, 317 US, at 31.
55 Dinstein, supra note 11, at 30.
56 Ibid.
74
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military tribunals.57 According to the Court, this common law had been incorporated by Congress into legislation recognizing the jurisdiction of military
tribunals to punish law of war offences.58 The Court’s understanding of the
substance of this common law came primarily from Colonel William Winthrop’s
treatise Military Law and Precedents.59 Citing Winthrop, the Court equated the
German saboteurs to spies and armed prowlers.60 Both were punishable,
according to Winthrop, under the laws of war.61
Winthrop cited the Lieber Code for the proposition that armed prowlers were
subject to prosecution under the laws of war.62 Exactly what Lieber intended to
articulate is unclear. The Lieber Code stated only that such individuals were
not entitled to prisoner of war status.63 In other articles of his Code, Lieber
clearly indicated punishment ‘allow[ed]’ by the law of war.64 Of course, that a
body of law ‘allows’ punishment is not the same as saying that it imposes or
requires it. Lieber’s phrasing could indicate an allowance for punishment
under municipal law. Resolving the issue requires a more thorough understanding of the jurisprudence of the Lieber Code and Winthrop’s commentary.
1. The Jurisprudence of the Lieber Code
Lieber viewed the law of war as a branch of the law of nations.65 As earlier
mentioned, the Lieber Code identified certain conduct as depriving an enemy
of prisoner of war status under the customary law of nations. Under this
customary law, prisoners of war, according to Lieber, were ‘subject to no punishment for being a public enemy, nor is any revenge wreaked upon [them]
by . . . [inter alia] . . . mutilation, death or any other barbarity’.66 Their legitimate
acts of war were not crimes.67 Armed prowlers and messengers attempting ‘to
steal through the territory occupied by the enemy to further in any manner
57 The Court stated, ‘Congress had the choice of crystallizing in permanent form and in minute
detail every offence against the law of war, or of adopting the system of common law applied by
military tribunals so far as it should be recognized and deemed applicable by the courts. It chose
the latter course.’ Quirin, 317 US, at 30 (emphasis added).
58 Ibid., at 27^28 (citing Art. 15 of the American Articles of War).
59 W. Winthrop, Military Law and Precedents (2nd edn., Washington, DC: Government Printing
Office, 1920).
60 Quirin, 317 US, at 30^31.
61 Winthrop, supra note 59, at 769.
62 Winthrop, supra note 59, at 769 note 19 (citing Lieber Code, Art. 84).
63 Art. 84 of the Lieber Code only clearly stated that such individuals were not entitled to treatment as prisoners of war. It did not specify the body of law under which they might be
prosecuted. Lieber Code, supra note 30, Art. 84.
64 See e.g. ibid., Art. 101 (stating that ‘the common law of war allows even capital punishment for
clandestine or treacherous attempts to injure an enemy’ (emphasis added)).
65 Lieber Code, supra note 30, Art. 27 (providing that ‘[t]he law of war can no more wholly
dispense with retaliation than can the law of nations, of which it is a branch’).
66 Lieber Code, supra note 30, Art. 56.
67 Ibid., Art. 57.
The Hamdan Case and the Application of a Municipal Offence
75
the interests of the enemy’ were not entitled to prisoner of war protections.68
In other sections of his Code, Lieber identified conduct that would subject an
individual to death. This is the case with spying69 and wounding or killing a
disabled enemy70 among others. Finally, Lieber articulates conduct for which
the law of war ‘allows’ punishment, as is the case with treachery.71
Although a categorical conclusion is difficult, it appears the Lieber Code identifies acts constituting illegitimate forms of public or private war under the law
of nations.72 Such acts only denied the ‘privileges of prisoners of war’73 and
permitted punishment of an individual engaged in them. Viewed in this light,
law of war violations under the Lieber Code address only combatant immunity
provided by the law of nations. Any criminal punishment imposed depended
upon a lack of combatant immunity. In other words, punishment was only
permitted by the law of nations, not directly imposed or required by it.
Punishment would necessarily be imposed by the sovereign authority of the
victim state under its municipal law. If one views combatant immunity as derivative of a state’s sovereign immunity,74 this approach is logical.
2. The Jurisprudence of Winthrop’s Commentary
Winthrop’s description and analysis of law of war offences support reading the
Lieber Code in this way. Although he, like Lieber, identified the law of war as a
branch of the law of nations, he began his analysis of punishable offences by
reference to the ‘Law of War in this country’75 as consisting not of a ‘formal
written code, but consist[ing] mainly of general rules derived from
International Law, supplemented by acts and orders of the military power and
a few legislative provisions’.76 In other words, Winthrop articulated the basis of
law of war offences and their punishment in municipal terms.
68
69
70
71
72
73
74
75
76
Ibid., Arts 84 and 100.
Ibid., Arts 83 and 88.
Ibid., Art. 71.
Ibid., Art. 101.
There are few cases in which Lieber appeared to equate conduct to an international crime. One
appears to be those engaged in what Grotius termed ‘private war’. Lieber later states that ‘men,
or squads of men, who commit hostilities of any kind, without commission, without being part or
portion of the organized hostile army. . .[and who intermittently return to peaceful pursuits]. . .
are not public enemies . . . but shall be summarily treated as highway robbers or pirates’. Ibid.,
Art. 82 (emphasis added). These men, too, were denied the ‘privileges of prisoners of war’. Ibid.
Thus, while Lieber may have believed that international law permitted summary disposition,
that disposition depended upon the absence of combatant immunity.
Ibid.
Lieber states that men ‘armed by a sovereign government’are belligerents and that their ‘killing,
wounding, or other warlike acts are not individual crimes or offenses’. Ibid., Art. 57. See also
D. Fleck, The Handbook of Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press,
1999), at 68 (explaining that fighters who do not belong to a subject of international law are not
entitled to combatant status).
Winthrop, supra note 59, at 773 (emphasis in original).
Ibid. (emphasis added). Although Winthrop cites international sources to support the proposition that those who violate the laws of war ‘should be brought to punishment if they can
76
JICJ 7 (2009), 63^82
Winthrop’s approach is consistent with English and US common law practice.77 Authoritative English common law treatise author William Blackstone
noted that although the common law of England adopted the law of nations, it
was incumbent upon nations to make the aspects of that law governing matters of state ç which were inherently enforceable as between states only ç
enforceable against individuals.78 When tailored to do so, such laws were
entirely municipal in character.79 Not surprisingly, the US Supreme Court has
referred to Winthrop as ‘the Blackstone of Military Law’.80
Winthrop’s analysis of law of war offences also aligns with his understanding of their municipal, common law nature. His work referenced not only the
Lieber Code but also the decisions of military tribunals during the US Civil
War.81 This ‘military precedent’, appears to have had the potential to modify or
clarify the Lieber Code, just as judicial precedent would in any English
common law system. For example, citing to Civil War ‘military precedent’,
Winthrop defined a law of war offence, ‘taking life or obtaining any advantage
by means of treachery’.82 The Lieber Code had limited punishable treachery
77
78
79
80
81
82
be reached’, ibid., at 796, he then states that ‘[o]ffenders of this class have, with us, been
brought to trial by military commission, and punished with death or imprisonment’, ibid.
(emphasis added). This further indicates his understanding that the law imposing punishment
is municipal in character.
One might very well question the appropriateness of viewing the practice of executive branch
established military tribunals as a form of judicial ‘precedent’ upon which to base one’s understanding of the ‘common law of war’. This criticism requires an analysis of the US Constitution
beyond the scope of this article.
See T.M. Cooley (J.D. Andrews ed.), 2 Cooley’s Blackstone (4th edn., Chicago: Callahan and
Company, 1899), at 1262^1263 (containing W. Blackstone, 4 Commentaries on the Laws of
England, 66^68). US practitioners should also note that Quirin (1942) is a post-Erie (1938)
decision. Therefore, this unique and clearly federal common law appears to have survived
Erie’s declaration that ‘[t]here is no general federal common law’ (Erie Railroad Company v.
Tompkins, 304 US 64, 78 (1938)) even if only by legislative recognition.
Indeed, the US Supreme Court’s decision in Erie stands for the proposition that when the
common law of nations is incorporated in the law of one of the several states of the US, it
becomes entirely the municipal law of that state and does not retain a general character that
might be interpreted by the national courts. See Erie, 304 US 64, at 78^80. See also A.J. Bellia,
Jr. and B.R. Clark,‘The Federal Common Law of Nations’, 109 Columbia Law Review (2009) 1^93.
For a potentially different view regarding IHL, see D. Glazier, ‘Precedents Lost: The Neglected
History of the Military Commission’, 46 Virginia Journal of International Law (2005) 5^81. Glazier
drifts among the terms ‘common law of war’, ibid., at 7, ‘law of war’, ibid., at 7, and ‘customary
law of war’, ibid., at 8. Ultimately, Glazier does appear to recognize the common law nature of
US military tribunals and the law they apply, ibid., at 37^38, without fully analysing the
consequences of this municipal character in extraterritorial armed conflict.
Hamdan, 126 S. Ct., at 2777 (plurality opinion)(citing Reid v. Covert, 354 U.S. 1, 19, n. 38 (1957)
(plurality opinion)).
See Winthrop, supra note 59, at 839^840 (listing putative law of war offences, citing almost
exclusively orders from US military commissions or courts-martial during the Civil War).
Ibid., at 840 (emphasis added).
The Hamdan Case and the Application of a Municipal Offence
77
to ‘clandestine or treacherous attempts to injure an enemy’.83 Thus, as in the
English common law system, precedent modified the applicable rule.84
Winthrop’s precedent-based ‘law of war’ is therefore best understood, as it
appears to have been by the Quirin Court, as the English common law system’s
adoption and implementation of the law of war under the customary law of
nations rather than an articulation of conduct criminalized or made punishable by that body of law.85 In this regard, it must be remembered that English
common law tradition did not require positive law to implement the law of
nations (jus commune or customary) in municipal law.86 Thus, the direct correlation of Winthrop’s municipal law of war offences and Lieber’s law of war
violations under the law of nations does not necessarily imply a belief that
punishment is required or imposed by the law of nations. Tribunals following
the English common law tradition simply adopted and implemented that law in
cases against individuals.
The Court’s phrasing indicates that it understood Lieber and Winthrop to
identify conduct unprotected by combatant immunity and thereby subject to
punishment.‘Unlawful combatants’ were necessarily those that had committed
such acts ç a much broader category than merely those having unprivileged
belligerent status in modern IHL. It was therefore accurate to say that
‘unlawful combatants’ were ‘subject to trial and punishment . . . for the acts
which rendered their belligerency unlawful’. Unlawful combatancy related to
conduct, not solely to status.
This does not completely resolve how the Quirin defendants, who had yet to
attempt hostilities, were deemed spies or armed prowlers. These were the
offences, citing to Winthrop and Lieber, to which the Court referred immediately following its statement regarding the consequences of unlawful combatancy.87 The answer to this question also requires a more careful examination
of the writings of Lieber and Winthrop.
83 Lieber Code, supra note 30, Art. 101 (emphasis added).
84 In addition, Winthrop lists as ‘law of war’ offences many that are more properly understood as
municipal criminal offences incident to war or military occupation based on a juridical relationship between a citizen and his nation at war, such as ‘unauthorized contracting, trading or
dealing with the enemy’ and ‘secretly recruiting for [the enemy’s] army’. Winthrop, supra note
59, at 839^840.
85 It is again important to note that Lieber and Winthrop both viewed the law of war as a branch
of the law of nations. In the English common law tradition, the law of nations was a part of
domestic common law. It could, however, be tailored in municipal systems by courts ç
through judicial precedent ç but those courts could not infringe so-called ‘perfect rights’
applicable between nations, only a positive or legislatively enacted municipal law could do
that. Bellia and Clark, supra note 79.
86 See J.H. Merryman and R. Pe¤rez-Perdomo, The Civil Law Tradition: An Introduction to the Legal
Systems of Europe and Latin America (3rd edn., Stanford, CA: Stanford University Press, 2007), at
20^26 (explaining the different attitudes of English and continental legal systems toward jus
commune and customary law).
87 Quirin, 317 US, at 31.
78
JICJ 7 (2009), 63^82
3. Spies and the Common Law Use of Presumptions
The Lieber Code declared that ‘scouts or single soldiers, if disguised in the dress of
the country . . . employed in obtaining information, if found within or lurking about
the lines of a captor, are treated as spies and suffer death’.88 This seems a clear
enough statement of what constitutes spying by a member of an armed force.
However, in an earlier essay on guerrilla parties in armed conflict, Lieber noted
‘that a person proved to be a regular soldier of the enemy’s army found in citizen’s
dress within the lines of the captor is universally dealt with as a spy’.89 In this
passage, it appears Lieber is asserting that such soldiers are presumed to be spies.
Winthrop confirms that these presumptions were applied in the US Civil War.
Enemy soldiers found in civilian dress within the lines of the opposing force
were presumed to be spies.90 As earlier noted, however, spying involves the
intent to obtain and communicate information regarding a belligerent force to
its enemy.91 Winthrop explains, therefore, that the presumption could be
rebutted by the ‘clearest proof’ that the soldier actually had an ‘innocent purpose’ such as to visit family or to return safely through enemy lines to his unit
after becoming separated.92 If a soldier lacked proof of this innocent purpose,
but was also not engaged in spying ç perhaps because he intended to but had
not yet clandestinely (and thereby treacherously) attacked the enemy ç he
would still be presumed a spy and likely found guilty. The facts of Quirin fell
directly within the overlapping elements of these municipal law of war offences
and their associated presumptions.
The German saboteurs were not spies by Lieber’s or Winthrop’s definition.93
Although they were in ‘citizen’s dress’ when captured, their mission of sabotage
rather than obtaining and communicating information placed them more closely within the Lieber’s definition of armed prowlers.94 Had they been in uniform and carrying arms openly, they might have been considered ‘partisans’
under the Lieber Code, meaning soldiers detached from the main Army entitled
to prisoner of war status.95 Because they were not in uniform, they were most
appropriately considered armed prowlers who had yet to complete a requisite
act.96 Only the application of the common law presumption documented
by Winthrop would render them spies as alluded to by the Quirin Court.97
The existence of this presumption adds to the appearance that the United
88 Lieber Code, supra note 30, Art. 83 (emphasis added).
89 F. Lieber,‘Guerrilla Parties Considered with Reference to the Laws and Usages of War’, reprinted
in R.S. Hartingtan, Lieber’s Code and the Law of War (Chicago: Precedent Publishing, 1983)
31^44, at 40.
90 Winthrop, supra note 59, at 767.
91 Lieber Code, supra note 30, Arts 83 and 88; Winthrop, supra note 59, at 767.
92 Ibid.
93 Winthrop also required that communicating material information regarding forces, defences,
military movements, etc. was an essential aspect of the offence. Ibid.
94 Lieber Code, supra note 30, Art. 84.
95 Ibid., Art. 81.
96 Ibid., Art. 83.
97 Quirin, 317 US, at 32^33 (citing Lieber Code, supra note 30, Art. 83).
The Hamdan Case and the Application of a Municipal Offence
79
States imposed punishment based solely on unprivileged status rather than
conduct. Although such presumptions are prohibited in IHL today, they were
not at the time of the Quirin decision.98
This common law development best explains why the Quirin Court ultimately concludes, after reviewing a US War Department manual, that
[o]ur Government, by thus defining lawful belligerents entitled to be treated as prisoners of
war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed and distinctive emblems.’
And by Article 15 of the Articles of War Congress has made provision for their trial and
punishment by military commission, according to the law of war.99
This, most objectionable, aspect of the opinion is simply an incomplete statement that does not explain the existence and use of these presumptions.
Also potentially problematic, the Court asserted that international ‘authorities are unanimous in stating that a soldier in uniform who commits the acts
mentioned would be entitled to treatment as a prisoner of war; it is the absence
of uniform that renders the offender liable to trial for violation of the laws of
war’.100 Assuming the authorities are accurately referenced, the Court’s phrasing does not indicate its belief that IHL defined their conduct as a crime. Being
‘liable to trial for violation of the laws of war’ only necessarily allows criminal
punishment under municipal law due to a lack of combatant immunity.101
B. The Relationship between Conventional IHL and US Municipal
Common Law
The references both of Winthrop and in Quirin to conventional IHL further
support the conclusion that the law of war offences to which they refer are
municipal. When defining law of war offences, Winthrop cited the Lieber Code
and US military tribunal and municipal judicial decisions almost exclusively.102
He did not purport to reconcile this mostly Civil War era ‘military precedent’
with the emerging body of conventional IHL, such as the 1899 or 1907 Hague
Regulations. In this regard, it must be remembered that although the Quirin
98 Art. 14(2) of International Covenant on Civil and Political Rights, 16 December 1966 (entry
into force 23 March 1976) [hereinafter ICCPR] provides ‘everyone charged with a criminal
offence shall have the right to be presumed innocent until proved guilty according to law’.
Interestingly for IHL, even in 1966, Art. 14 of the ICCPR was not protected from derogation in
time of public emergency by Art. 4(2). An attempt to correct that exists in Art. 75(4)(d) of AP I,
supra note 21, and Art. 6(2)(d) of Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June
1977 [hereinafter AP II].
99 Quirin, 317 US, at 34.
100 Ibid., at 35^36.
101 It is important to note here that an additional point of confusion surrounding Quirin,
Winthrop and Lieber on this issue relates to the fact that as the US common law of war
developed, the crime of espionage or spying lost its status as a violation of international law
among commentators. See Baxter, supra note 26, at 329^330.
102 See generally Winthrop, supra note 59, at 773^827.
80
JICJ 7 (2009), 63^82
Court cited a 1920 edition of Winthrop’s treatise, it was originally a two-volume
work written in 1886.103 Although it contained scant references to post-1886
US and international materials, it did not assert that the law of nations or IHL
alone defined criminal conduct or required punishment. Indeed, in 1920, or
even at the time of the Quirin Court’s decision in 1942, such an assertion would
have been highly questionable.
The Quirin Court also paid little attention to the precise terms of positive IHL
in its decision. It referred to the Hague Regulations only to support its conclusion that a concept of belligerents not entitled to combatant immunity existed
in both international and municipal laws of war.104 It did not consider the
importance of the fact that under the Hague Regulations, to which both the
United States and Germany were parties,105 members of a belligerent force
posing as civilians with the intent to attack ‘individuals belonging to the hostile nation’ might properly be considered to be attempting prohibited treachery.
There would have been three problems with the Court’s relying on the Hague
Regulations to directly support its decision. First, those regulations prohibit
only ‘[killing or wounding] treacherously individuals belonging to the hostile
nation or army’.106 The Quirin defendants intended to attack military industrial
targets. Attacks against individuals would have been collateral to those attacks
and speculative at the time of trial.
Additionally, a plain reading of the text of Hague Regulations requires a
completed act of killing or wounding for the offence of treachery. At the time
of capture, the German saboteurs had not yet conducted a successful attack.
One must look to the Lieber Code to find a potential prohibition against treacherous attempts.107 Finally, the Hague Convention provided only for reparations, not criminal punishment.108 Thus, applicable treaty-based IHL did not
address the authority to punish the German saboteurs’ inchoate treachery.109
These observations explain the Quirin Court’s reference to the preamble
of the Hague Convention.
Until a more complete code of the laws of war has been issued, the High Contracting Parties
deem it expedient to declare that, in cases not included in the Regulations adopted by them,
the inhabitants and the belligerents remain under the protection and the rule of the principles
103 See W. Winthrop, Military Law, 2 vols (Washington, DC: W.H. Morrison, 1886).
104 Quirin, 317 US, at 30^31. The Quirin Court also cited provisions of a US War Department
publication that appeared to incorporate elements of both the Lieber Code and the Hague
Regulations. Ibid., at 34.
105 Both states signed on 18 October 1907. Both ratified on 27 November 1909. See http://
www.icrc.org/ihl.nsf/WebSign?ReadForm&id¼195&ps¼P (visited 6 December 2008).
106 Hague Regulations, supra note 31, Art. 23(b).
107 Lieber Code, supra note 30, Art. 101.
108 Hague Convention, supra note 31, Art. 3.
109 It is not clear even today whether attempted treachery or perfidy is a violation of IHL.
Compare Dinstein, supra note 11, at 202 (citing J. de Preaux’s Commentary to the Additional
Protocols for the proposition that there is a ‘gray area’ when perfidy is unsuccessfully
attempted) with D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts (Oxford:
Oxford University Press, 1999), 202 (asserting in x 472 that all unsuccessful attempts to
commit perfidious acts are allowed).
The Hamdan Case and the Application of a Municipal Offence
81
of the law of nations, as they result from the usages established among civilized peoples, from
the laws of humanity, and the dictates of the public conscience.110
Clearly, the court found that the law of nations controlled in areas not provided
for by treaty. Thus, the decision in Quirin relied upon a municipal, common law
implementation of that body of law.
4. Conclusion
The ‘murder in violation of the law of war’ offence clearly reflects the common
law traditions of the US and English legal systems. The understanding that the
law of war branch of the law of nations addressed only conduct which denied
combatant immunity to a fighter, and thereby permitted punishment under
municipal authority, is a consistent aspect of US practice. It is also reflected in
the Uniform Code of Military Justice (UCMJ), first passed by the US Congress in
1950. For the first time, the UCMJ clearly empowered general courts-martial to
impose ‘any punishment permitted by the laws of war’.111 This provision still
exists today112 and its existence best explains why the United States did not
directly incorporate (by general reference) the grave breach provisions of the
Geneva Conventions in a legislative enactment until the War Crimes Act of
1996.113 There was no need to do so because those law of war violations were
already punishable under this US common law. Additionally, the rules applicable to US courts-martial contain guidance for charging ‘law of war’ violations114 without requiring that those violations be identified as punishable by
IHL. Thus, the UCMJ preserves this common law tradition ç permitting
prosecution and punishment of any act of hostilities in an armed conflict for
which IHL withdraws or does not provide combatant immunity.
That Winthrop and the Quirin decision rely upon municipal common law to
impose criminal punishment for a customary law of nations violation should
be unsurprising given the absence of crimes or punishment prescribed by the
conventional IHL of that era. It is also logical given the absence of a direct
juridical relationship between individuals and the law of nations pertaining to
matters of state. Titling such violations ‘law of war’ offences did not change
their obvious ç and at that point in the development of IHL necessary ç
municipal character.115 Thus, MCA Commissions must recognize the municipal
110 Quirin, 317 US, at 38 (emphasis added).
111 F.B. Wiener, The Uniform Code of Military Justice: Explanation, Comparative Text, and
Commentary (Washington DC: Combat Forces Press, 1950), at 74.
112 10 USC x 818 (2000).
113 The War Crimes Act is codified, as amended, at 18 USCA x 2441.
114 See Manual for Courts-Martial, United States, R.C.M. 307(c)(2)(cmt. (d)) (2008).
115 While criminal punishment under municipal common law might represent state practice and
opinio juris for purposes of establishing or developing customary international law, the
precedent-based development of municipal common law is not equivalent to the state practice
development of customary international law. Winthrop’s focus on US practice in defining
common law of war offences demonstrates the lack of congruity.
82
JICJ 7 (2009), 63^82
character of the ‘murder in violation of the law of war’ offence. Because the
MMC commentary accurately reflects this municipal offence, MCA Commissions must follow it in the future.
This analysis, however, has not addressed the propriety of enforcing
common law municipal offences in an extraterritorial armed conflict. It is to
that subject that I will return in future work.