John Dehn Responds to Raha Wala Regarding Military Commissions

I read Raha Wala's comments about military commissions last week with a bit of concern.  I am no apologist for military commissions and steadfastly refuse to express any view of their use as good (or bad) policy.  Nevertheless, Raha's comments were inaccurate in certain respects.  I think your readers deserve a fuller description of the issues. I don't have time to discuss everything wrong with Raha's comments.  We might start by noting the subtle conflation of "judicial guarantees recognized as indispensable by civilized peoples" and the (primarily evidentiary) rules applicable in Art. III federal courts.  If one takes even a short moment to consider fundamental differences in common and civil law legal systems and trials, one recognizes that "judicial guarantees recognized as indispensable by civilized peoples" and the rules and procedures of our federal courts are not identical.  Perhaps, then, his concern is the "regularly constituted court" requirement of the Geneva Conventions.  If so, it fairs no better.  Military courts-martial are "regularly constituted" even though they are established ad hoc.  They may also adopt rules different from Art. III courts (see 10 USC 836 a.k.a. art. 36(a) UCMJ).  In other words, the fact that military commissions are not Art. III courts or their procedural equivalent says nothing about whether they are "regularly constituted" or whether they provide requisite judicial guarantees (though I reserve judgment on these issues).  A more significant point of concern, though, is Raha's comment that " [m]ilitary commissions were designed to try combatants for serious violations of the laws of war."  This is simply an inaccurate description of the origins and history of U.S. military commissions.  This history is extremely important to the issues pending before the CMCR in al-Bahlul.   Even a cursory reading of Winthrop's 1886 and 1920 commentary reveals that, particularly during the Civil War, many "civilians [and] low-level combatants" (to use Raha's words) were tried by military commissions for "simple," not "serious" law of war violations.  The statement's inaccuracy can also be shown by reference to Army Field Manual 27-10, published in 1956.  This represents our government's understanding of the laws of war at that time.    It provided, "[t]he term “war crime” is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime." (emphasis added)  As I have noted in previous scholarship, military commissions imposed punishment believed to be permitted by a violation of the laws of war.  Prior to World War II and subsequent events, international law did not impose or require punishment for any of its violations (outside the context of command responsibility).  The U.S. perspective -- supported by international practice (particularly regarding hostile civilians, meaning certain partisans and irregular fighters) -- was that all violations of the laws of war permitted individual punishment.   The 1949 Geneva Conventions expressly required a penal sanction for certain serious violations called "grave breaches."  These have become known as "international war crimes," but were then only a subset of what were understood to be "punishable law of war violations."  Evidence of this is seen in Art. 70 of the Geneva Convention pertaining to civilians.  It provides "[p]rotected persons [in this context, civilians identified in Art. 4] shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war." (emphasis added)  Thus, Art. 70 expressly recognizes a category of punishable law of war violations by civilians and in the context of hostilities rather than occupation.  This explains why, in 1956 and (after U.S. ratification of the Geneva Conventions), the Army Field Manual defined "war crimes" to include all violations of the laws of war by military or civilian offenders. As Raha rightly notes, this understanding of the laws of war implicates the legality principle, nullum crimen, nulla poena sine lege (no crime, no punishment without law).  A law that only permits punishment does not provide for it, and thus fails to expressly define conduct as criminal.  The issue, though, is not whether the offenses triable by modern military commissions are "international war crimes" or serious violations of the laws of war.  The proper inquiry is whether customary international law still permits punishment of non-nationals for simple rather than serious breaches of the laws and customs of war.  Some scholars have addressed legality principle concerns in this area by concluding that a state can only punish its nationals for simple law of war violations (pursuant to a domestic law in force at the time of the violation).  It is at this point we must remember that states, not international courts, commentators or human rights lawyers, make international law.  In my view, a Paquete Habana-like analysis is needed. This is important to the issues in al-Bahlul because the CMCR must determine whether conduct made punishable by the Military Commissions Act (regardless of the Act's label for it) is punishable in conventional or customary international law.  I express no view on these issues here.  But this is, in my view, the proper starting point for the CMCR's inquiry.