Frakt on Direct
Participation as a War Crime (- does DPH
constitute (international) war crime?)
by Kevin Jon Heller July 18th, 2012
I want to call
readers’ attention to David Frakt’s excellent essay on direct
participation in hostilities as a war crime. Here is the abstract:
This article addresses,
in part, the question of what to do with civilian (DPH) direct
participants in hostilities who are not killed by opposing armed forces, but
are captured. Specifically, the article address the potential criminal
prosecution of detained DPHs. The ability to detain provides an opportunity
to the detaining power to prosecute the DPH “for an offence arising out of the
hostilities.” But is it a crime for someone who does not meet the
Geneva Convention requirements for POW status to directly participate in
hostilities? In other words, are all DPHs criminals? If so, are they
war criminals, or, rather, common domestic criminals? The
prevailing international view is that direct participation in
hositilities in and of itself is not a war crime. Contrary to the
prevailing international view, the United States has attempted, through
the military commissions of Guantánamo, to treat direct participation in
hostilities as a war crime. This article examines that effort, including
the prosecutions of David Hicks and Omar Khadr, and the failed prosecution of
Mohammed Jawad for alleged direct participation in hostilities. The article
concludes that America’s effort to convert all fighting against the
U.S. by unprivileged enemy belligerents into a war crime has been a
failure.
I’ve spent a great
deal of time over the years criticizing the US government for attempting to
invent war crimes — and criticizing courts for all too often permitting those
attempts to succeed. Frakt’s essay
addresses one of the government’s rare failures, and it is a model of clarity,
fairness, and analytic precision. I was particularly struck by the force
of his conclusion that “[i]n the future, if the United States seeks to
create new customary international law, it should focus on criminalizing
acts that are of greater global
concern than routine attacks on U.S. troops.” That
seems like very good advice indeed.
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John C. Dehn
the U.S.
government is currently charging this offense and argues that participation in
hostilities without the combatant’s privilege is an American, domestic
common-law-of-war offense rather than an “international” war
crime?
Frakt takes as given a
different view of the subject matter jurisdiction of military commissions (as
encompassing only “international” war crimes) than is currently being asserted
by the government prosecutors (that it also includes violations of
international humanitarian law historically treated as crimes in the U.S.
“common law of war”).
David Frakt
You are absolutely
correct that the U.S. is now treating direct participation in hostilities as a
common law domestic war crime rather than as an international war
crime. I view the Law of War as a
body of international law (IHL)
The primary vehicle
for prosecuting direct participation in hostilities has been the offense of
“murder in violation of the law of war” in the Military Commissions Act.
According to the latest version of the manual for military commissions, in
order to commit murder in violation of the law of war, one need not actually
violate the international law of war.
The shift from treating this offense as an
international war crime to a common law domestic war crime
was motivated by a desire to protect CIA drone operators from charges that they are violating the law of war as
civilians directly participating in hostilities.
John C. Dehn
“The shift from
treating this offense as an international war crime to a common law domestic
war crime was motivated by a desire to protect CIA drone operators from charges
that they are violating the law of war as civilians directly participating in
hostilities.”
But I also suspect
that it was in part a response to the reality that this issue is unsettled in
international law.
As I have stated
numerous times here and elsewhere, there were “war crimes” before the Nuremberg
IMT, but there were no “international war crimes” as that term is today
understood (crimes defined as such by international law).
we are not only
discussing civilians taking a direct part in hostilities. We are also discussing individuals possessed
of a continuous combat function for a non-state party to an armed
conflict.
Combatant immunity for
acts of war is derivative of a state’s sovereign immunity. As such, it is not available to members of a
non-state organized armed group engaged in armed conflict. Such individuals may legitimately be
targeted, and have historically been potentially subject to prosecution for
their acts of violence, even those forming a part of the hostilities of an
armed conflict that would be immunized if engaged in by a member of a state’s
armed forces.
David Frakt
The other reason they
changed the commentary describing the offense may have been the rejection by
the military judges at Guantanamo of the government’s theory of the offense of
murder in violation of the law of war in the Hamdan, Jawad and al Bahlul cases
Dwayne
The notion that a
civilian participating directly in hostilities could, in and of itself, be a
war crime, is plainly ludicrous.
If an American person
woke up one morning and found the USA had been invaded by China, is there
seriously an academic in the entire USA who would call him a _war criminal_ for
engaging in a guerilla defence of his homeland?
John C. Dehn
The Geneva Conventions
account for the spontaneous taking up of arms by the civilian population in
immediate response to an imminent or actual invasion by granting prisoner of
war status to those who do so. However,
it does not and should not apply to Al Qaeda or its off-shoots for what I would
think are obvious reasons, even if those groups recruit from an effected civilian
population.
