Military commissions review court misconstruing 'unlawful combatant'

Gabor Rona [International Legal Director, Human Rights First]: "The U.S. Court of Military Commission Review (CMCR) has issued a decision overturning the dismissal of prosecution against Omar Khadr by a military commission. The case was dismissed because although Khadr was found by a Combatant Status Review Tribunal to be an "enemy combatant," there was no finding, as is required for military commission jurisdiction, that he was an "unlawful enemy combatant." The CMCR decided that 1) the distinction between "enemy combatant" and "unlawful enemy combatant" is significant for purposes of establishing military commission jurisdiction under the Military Commissions Act of 2006 (MCA), and 2) the military commission, itself, has the power to determine that someone is an "unlawful enemy combatant." But these conclusions are insignificant in comparison to the consequence of assumptions made by the Court about the concept of "unlawful combatant."

The Decision begins by addressing the distinction between what it calls "lawful" and "unlawful" combatants, terms that do not exist in the laws of war. What the Court is, in fact, addressing is the distinction between privileged and unprivileged belligerents. There's a big difference between these concepts. The Court correctly notes that unprivileged belligerents are denied prisoner of war (PoW) status in international armed conflict. The Court is on less solid ground when it says that acts of unprivileged belligerency are violations of the laws of war. The Decision wrongly asserts that the Third Geneva Convention "sought carefully to define 'lawful combatant' for all signatory nations." The Third and Fourth Conventions merely establish that privileged belligerents are entitled to PoW status and treatment, whereas others (such as unprivileged belligerents and civilians who take no part in hostilities) are not. Nowhere in the Geneva Conventions is there mention of the illegality, let alone criminality, of unprivileged belligerency.

This does not mean that unprivileged belligerents can never be prosecuted for acts which render their belligerency unprivileged. It does mean that the crime of unprivileged belligerency must first be established in the domestic law. To hold otherwise is to violate the principle of legality (i.e., that people should only be prosecuted for conduct that is established as prohibited by law).

In the case of Omar Khadr, a charge of "murder in violation of the law of war" would, of course, require proof that the killing was in violation of the law of war. Thus, while unprivileged belligerents (known in 'MCA-speak' as unlawful enemy combatants) may fall within the jurisdiction of a military commission, they are not, ipso facto, criminally liable there under for acts of unprivileged belligerency, unless those acts also constitute violations of the laws of war enumerated as crimes in the MCA. Killing of a combatant by an unprivileged belligerent is not a listed crime in the MCA and is not "murder in violation of the law of war."

Even assuming that the MCA establishes that killing by an unprivileged belligerent is murder in violation of the law of war (which it does not), it is a violation of the prohibition against ex post facto prosecution to try Omar Khadr on such a charge, since the MCA post-dates his acts that are alleged to be criminal under the MCA.

Those who hold opposing views will bring up the Quirin case (as did the CMCR) for the proposition that "unlawful combatants . . . are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." 317 U.S. 1, 31. But Quirin does not involve "mere" acts of unprivileged belligerency. It involves acts of belligerency that were unlawful not because the accused were unprivileged — in fact they were members of the opposing armed forces in an international armed conflict. You can't get more privileged than that. The very next sentence after the one cited above is this: "The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." (Citations omitted) 317 U.S. 1, 31. The propriety of criminal charges in Quirin, unlike in Khadr, is based on the nature of the act, not on the status of the accused. In other respects, the Quirin case was not about the criminality of the accused's conduct. Rather, it was about the scope of executive authority to establish military commissions.

News reports rightly proclaim a victory for the government. But there may be a long way to go before Khadr's and other MC cases are final, even if this CMCR decision is not appealable to the D.C. Circuit (as provided by the MCA for convictions by military commissions) and even if the Supreme Court does buy the government's argument that it should not take cognizance of claims involving military commissions in the context of habeas claims, at least until after a trial and conviction."

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