Over 120 participants attended a panel hosted by the War Crimes Committee of the International Bar Association (IBA) on Thurs, 8 December 2022 to discuss Guantánamo Bay from an international humanitarian and criminal law perspective. In keeping with the IBA's unique convening power, the panel brought together experts* from both the prosecution and the defense of the Guantánamo Bay Military Commissions to discuss pressing questions of the law of armed conflict, such as whether an armed conflict exists between the United States and Al-Qaeda, and if so, which legal framework—Common Article 3 or the Geneva Conventions in their entirely—applies. Panelists also discussed whether the war crimes tribunals at Guantánamo Bay comply with non-derogable principles of international humanitarian law.

John Balouziyeh, an officer of the IBA War Crimes Committee, chaired the panel. In his opening remarks, he introduced the work of the War Crimes Committee, the only IBA committee exclusively focused on international criminal law. He highlighted the War Crimes Committee’s collaboration with the IBA Human Rights Institute and the ICRC to promote justice around the world and uphold the principle of accountability for serious international crimes. He also invited attendees to mark their calendars for the upcoming Annual Conference of the War Crimes Committee, which will be held on 18 March 2023 in the Hague.

Dr. Karen Greenberg, the Director of the Center on National Security at Fordham University School of Law, moderated the session. In her opening remarks, she highlighted that from the earliest days of Guantánamo Bay, the prospect of trials has evaded direct answers to the questions posed by the IBA panel. The 23 November 2001 Military Order calling for the tribunals specified directly that the defendants were barred from seeking access not only to U.S. courts but to “any court in any foreign nation” and to “any international tribunal.” Further determination to avoid the application of international humanitarian law was apparent early on, as the Pentagon issued orders to the first military officers in charge of the detention camp. No matter what, they told the commanding officer, make sure not to refer to the captives as “prisoners.” They were intent on avoiding the need to abide by the Geneva Conventions. Hence, they called them “detainees.” Nevertheless, since 2006, the U.S. has acknowledged that Common Article 3 of the Geneva Conventions applies to detainees in the context of a non-international armed conflict.

Dr. Greenberg underscored that in light of the 2009 Military Commissions Act and President Obama’s tenure in office, Brigadier General Mark Martins, the Chief Prosecutor for the Commissions at the time, reassured a gathering at Chatham House in 2012 that “[a]ll three branches of government in the United States now regard Military Commissions as being bound to comply with the requirement of Common Article 3 of the Geneva Conventions Martins went so far as to conclude that “the protections of the Military Commissions Act of 2009 “far exceed this international standard” both in the context of an international armed conflict and a non-international armed conflict.

Be that as it may, the Military Commissions have made little headway over the course of Guantánamo’s existence – as has the debate over which international laws and standards apply there. Dr. Greenberg emphasized that there have been nine convictions, three vacated entirely, one vacated in part, three on appeal, and one awaiting sentencing. In sum, all but two have either been vacated or are on appeal. There are currently three trials before the Military Commissions at Guantánamo, one of which is the signature piece of the tribunals – the trial of the five men accused of participating in the 9/11 attacks.

Dr. Greenberg stated that the questions that would be examined by the panel are whether, to what extent, and with what specificity International law applies to these defendants in theory and to what extent international humanitarian law (IHL) and international criminal law (ICL) have or have not applied to the commissions to date.

Dr. Greenberg directed her first question to COL Fred L. Borch (ret.), the first Chief Prosecutor of the Military Commissions at Guantánamo Bay, Cuba. Colonel Borch currently serves as a Professor of Legal History and Leadership at the Judge Advocate General’s Legal Center and School, which is based at the University of Virginia in Charlottesville, Virginia. Colonel Borch argued that the conflict between the United States and al Qaida has always been a non-international armed conflict (NIAC). It has never been an international armed conflict and never will be because al Qaida is a non-state actor and it has never fulfilled the “overall control” test articulated by the ICTY’s Tadić case for purposes of internationalizing the NIAC. Common Article 3 applies to the conflict, as do those parts of Additional Protocol II that constitute customary international law. This would be true for any non-state actor, such as ISIL/Da’esh, with which the United States is in a state of armed conflict.

Colonel Borch maintained that Military Commissions are entirely lawful—and appropriate tribunals—for the prosecution of war crimes. But they are tribunals of incredibly narrow jurisdiction; there must be an armed conflict and the offenses being prosecuted must be war crimes. The current issue is whether the current Military Commission framework, created by the U.S. Congress under its Article I powers, satisfy the requirements of Common Article III. According to the U.S. Supreme Court, the Military Commissions created by President Bush in 2001 did not meet the requirements of the Geneva Conventions or the Uniform Code of Military Justice. But these were law of war Military Commissions created by President Bush as the Commander-in-Chief under Article II of the Constitution. Whether the current Military Commissions—created by Congress under Article I—satisfy Common Article 3 and IHL has not been decided by the U.S. Supreme Court.

Dr. Greenberg then gave the floor to Dr. Kevin Jon Heller, a Professor of International Law and Security at the University of Copenhagen’s Centre for Military Studies, as well as Professor of Law at the Australian National University and Special Advisor to the Office of the Prosecutor of the International Criminal Court. Professor Heller turned to the question of when the armed conflict between the U.S. and Al-Qaeda began, a critical question because a number of war crimes charged in the Military Commissions date back to as early as 1996. The U.S. government’s official position is that the armed conflict began no later than August 1996, when Osama bin Laden “declared war” on the United States. Professor Heller argued that this is clearly wrong because nothing in conventional or customary international law supports the idea that a NIAC can be triggered by a non-state actor’s “declaration of war.” As the ICTY held in the Tadić case, the existence of NIAC is determined objectively, based on the organization of the parties and the intensity of hostilities. Al-Qaeda likely manifested a sufficient degree of organization by the mid-1990s, but the hostilities between the U.S. and Al-Qaeda did not approach the required threshold of intensity until late September 2001, when U.S. forces in Afghanistan began to engage in hostilities with Al-Qaeda and Taliban fighters. This means that the Military Commissions cannot lawfully prosecute acts committed before late September 2001 – nor the acts that took place leading up to and during 9/11 itself.

Professor Heller maintained that Military Commissions have jurisdiction only over internationally recognized war crimes, a limitation affirmed by the DC Circuit sitting en banc in Al Bahlul v. United States. The Commissions at Guantánamo Bay nevertheless continue to prosecute acts that are not war crimes under international law. Of the five charges in the 9/11 trial, for example, only one is unequivocally a war crime: Attacking Civilians. The other four – Conspiracy, Murder in Violation of the Law of War, Hijacking an Aircraft, and Terrorism – are not. Hijacking, for example, is not a grave breach under the Geneva Conventions or the First Additional Protocol, is not criminalized by the Rome Statute, has never been prosecuted by an international criminal tribunal, and is not identified as a war crime in the ICRC’s study of customary IHL. Similarly, although deliberately attacking civilians is clearly a war crime, Murder in Violation of the Law of War also applies when a member of a non-state actor like Al-Qaeda intentionally kills a “lawful combatant.” Intentionally killing a lawful combatant constitutes ordinary murder when committed by an unprivileged combatant, but it does not constitute a war crime regardless of the status of the perpetrator.

In the aftermath of World War II, the U.S. prosecuted nearly 200 Nazis, some of whom who were responsible for the Holocaust’s worst atrocities, in trials that were widely regarded as fair – including by the defendants’ own lawyers. There is no question, Professor Heller argued, that the United States had the knowledge and ability to provide the alleged terrorists at Guantánamo Bay with fair trials. Yet it did not: instead, it chose, inter alia, to prosecute war crimes committed when there was no armed conflict between the U.S. and Al-Qaeda and war crimes that do not actually exist under international law, depriving the trials of any semblance of fairness. That choice will rightly stain the legacy of the Military Commissions for decades to come.

Next, Dr. Greenberg introduced Alka Pradhan, an Adjunct Professor at the University of Pennsylvania School of Law and Human Rights Counsel for Ammar Al-Baluchi, a co-defendant in the 9/11 case (United States v. Khalid Sheikh Mohammed et al.). Ms. Pradhan underscored one critical issue with the Guantánamo Military Commissions—the fact that several of the charges are not traditional war crimes. As Prof. Marco Sassoli said in an affidavit for the 9/11 case: “Terrorism is not and has never been considered an autonomous, prosecutable war crime.”

Ms. Pradhan highlighted that States, including the United States, have always maintained that terrorism is a crime prosecuted domestically precisely because they do not want to treat terrorists as combatants, to elevate their causes and lend them legitimacy. This conflation between IHL and criminal law is behind so many of the knots in which the United States has tied itself post-2001, because the United States seeks to try these men in a Military Commission while limiting their rights and privileges to less than those of combatants in IHL who would normally be the defendants in a Military Commission. At the same time, the United States government has charged the men with crimes that have historically been prosecuted domestically under criminal statutes. This conflation allows the U.S. maximum flexibility in detention, targeting and use of executive power – and minimum recourse and visibility of the detainees themselves under conditions at Guantánamo Bay. M

The context in which these prosecutions are taking place is important to understand, Ms. Pradhan stated. As opposed to previous Military Commissions, the entire raison d’être of the Guantánamo Bay Military Commissions was to be able to operate under a purpose-written statute that would exclude mandatory application of U.S. or any other law, and include use of torture-acquired evidence. The United States government made a very intentional decision post 9/11 about holding the detainees incommunicado in order to interrogate them and subject them to “enhanced interrogation techniques” that constituted torture – instead of bringing them to the U.S. to face prosecution, like other terror suspects. Only after the black sites became impossible to maintain, and after years of torture, were the detainees brought to Gitmo, and a decision was made to prosecute them in a Military Commission under the Military Commissions Act. So that’s the context in which they’re trying to prosecute terrorism and other non-war crimes at Guantánamo Bay.

Ms. Pradhan asserted that the Guantánamo Bay Military Commission have been immensely destructive for the foundations of international humanitarian law. A single state claiming the power to retroactively determine a war to have existed five years before a terrorist attack, for the purpose of charging conspiracy before the event; or a state claiming the power to exclude individuals from the entirety of IHL, are incredibly dangerous concepts. The U.S. prosecutors in the 9/11 case have explicitly argued that there is an “American law of war,” separate from and higher than the international law of war. The consequences would be disastrous if other states in the international community were to decide to make the same argument. Ms. Pradhan proposed that the United States government end the failed prosecutions through plea negotiations as the best solution for all parties. The men themselves are deteriorating quickly from their previous torture, and the United States should focus on providing access to the comprehensive medical care that they have been denied. The international community should use Guantánamo Bay as a cautionary tale, never as precedent.

Dr. Greenberg then welcomed Dr. Michel Paradis, who serves as Senior Counsel to the U.S. Department of Defense Military Commissions Defense Organization as well as a Partner at the international law firm Curtis, Mallet-Prevost, Colt & Mosle LLP and a Lecturer at Columbia University Law School. Dr. Paradis argued that the Guantánamo Military Commissions have been plagued from their inception by uncertainty regarding the laws under which they are governed. The Military Commissions were ostensibly modeled on similarly named tribunals that were used to prosecute war crimes in the World War II era in both the Pacific and Atlantic theaters. Though international law was less developed in the 1940s than it is today, those tribunals applied—on questions of both substantive and procedural law—the international laws of war directly, as derived from the Geneva and Hague Conventions, as well as customary international law. While there were unquestionably controversial questions about the content of that law, no one in the World War II era disputed that international law was what governed.

The Bush Administration, however, came to office skeptical of international legal institutions generally. And in the aftermath of September 11th, it was skeptical to the point of hostility toward international humanitarian law (i.e. the modern law of war) specifically. This led the Bush Administration to jettison previously uncontroversial rules of international law respecting the treatment of prisoners, most notoriously with respect to the use of torture.

Dr. Paradis argued that in the creation of the Military Commissions, whose presumed purpose was to prosecute detainees for war crimes, the Bush Administration seemingly went out of its way to adopt procedures and substantive offenses that were (and remain) universally understood to be contrary to international law. These include rules that permit the use of evidence obtained through torture and the prosecution of domestic crimes, such as conspiracy and material support for terrorism, that have consistently been rejected as war crimes. These efforts to “push the envelope” have proven fatal to the long-term legitimacy and functionality of the Military Commissions. They have significantly weakened the normative force that international law had obtained by its highwater mark at the end of the 1990s. And they have contributed to an overall decline in the United States’ influence as a pillar of the post-war liberal order.

These consequences might not have been as significant and permanent had the American judicial system resolved these issues in a timely fashion. With vanishingly few exceptions, however, the internal judicial checks created within the Military Commission system did little more than ratify the most extreme forms of prosecutorial overreaching and did so in legal rulings that lacked credibility. The federal courts were marginally more willing in checking against extreme overreaching, invalidating legal positions the Military Commission system had taken for granted for years.

The cumulative effect of this has been that for the two decades after Guantánamo has opened, the most fundamental questions, such as whether the constitution applies and even whether Guantánamo Military Commissions were bound to follow international law, remain unanswered. Dr. Paradis concluded that the cost of this legal uncertainty has not only impacted the continuing viability of international law and institutions, but it has also led to the effective denial of justice for victims, the public, and perpetrators alike.

The panel concluded with remarks by Colonel Borch, who stated that if there is one takeaway from the 20-year history of the Guantánamo Military Commissions, it is that due process is the key to success. While results—convictions—are important, the due process that guarantees full and fair trials is critical.

Recording

A full recording of the panel discussion is available at https://www.ibanet.org/conference-details/CONF2283

Further Reading and Additional Resources

John Balouziyeh, “The Prisoner of War Status of Al Qaeda Detainees: An Analysis through the Prism of the Third Geneva Convention and Customary International Humanitarian Law,” 19 Dartmouth Law Journal, Issue 1 (2021)

COL (ret.) Fred L. Borch III, Review of Geoffrey S. Corn et al., The War on Terror and the Laws of War, Oxford University Press (2009), in 77 Army History 35 (Fall 2010)

Karen Greenberg, The Least Worst Place: Guantanamo's First 100 Days, Oxford University Press (2010)

Karen Greenberg (ed.), Reimagining the National Security State: Liberalism on the Brink, Cambridge University Press (2020)

Kevin Jon Heller, “An International Criminal Tribunal for the Former Guantanamo Bay?” Opinio Juris (26 Aug. 2009)

Kevin Jon Heller, “John Yoo and the Justice Case,” Guest Post, Balkanization (1 May 2008)

Thomas H. Kean ed., National Commission on Terrorist Attacks upon the United States, 9/11 Commission Report 66, W.W. Norton & Co. (2004)

Nils Melzer, Etienne Kuster, International Humanitarian Law: A Comprehensive Introduction, ICRC (2016)`

Michel Paradis and Carol Rosenberg, “Echoes from the Past: Do the post WWII Japanese War Crimes Tribunals have lessons for Guantanamo?” Center on National Security, Fordham Law School (2020)

Michel Paradis, Last Mission to Tokyo: The Extraordinary Story of the Doolittle Raiders and Their Final Fight for Justice, Simon & Schuster (2020)

Samantha Pearlman, “Human Rights Violations at Guantánamo Bay: How the United States Has Avoided Enforcement of International Norms,” 38 Seattle University Law Review 1109 (2015)

Toni Pfanner, “Military uniforms and the law of war,” 86[853] International Review of the Red Cross 93 (2004)

Alka Pradhan, “The Myth of Attenuation: Reinvigorating the Exclusionary Rule for Torture-Tainted Statements,” 52 University of Toledo Law Review 531 (2021)

Alka Pradhan and Scott Roehm, “Nuremberg Prosecutor says Guantanamo Military Commissions Don’t Measure Up,” Just Security (24 Aug. 2021)

Pierre-Richard Prosper, “Remarks at Chatham House, Status and Treatment of Taliban and al-Qaida Detainees,” London (20 Feb. 2002), https://2001-2009.state.gov/s/wci/us_releases/rm/2002/8491.htm

Prosecutor v. Duško Tadić, Case No. IT-94-1AR72, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction, International Criminal Tribunal for the Former Yugoslavia (2 Oct. 1995)

Steven R. Ratner, “Jus ad Bellum and Jus in Bello after September 11,” 96[4] American Journal of International Law 905 (2002)

Marco Sassòli, Antoine A. Bouvier & Anne Quintin, Fundamentals of IHL in How Does Law Protect in War? ICRC (3d ed. 2011), available at https://casebook.icrc.org/law/fundamentals-ihl

Gregory M. Travalio, “Terrorism, International Law, and the Use of Force,” 18 Wisconsin International Law Journal 145 (2003)

John C. Yoo and James C. Ho, “The Status of Terrorists,” Pub. L. and Legal Theory Res. Paper No. 136, 44:1 Virginia Journal of International Law 207 (2003)

Disclaimer

*All panelists spoke in their personal capacities. The views expressed during the panel discussion and restated in this article do not necessarily represent the positions, views or policies of any of the institutions affiliated with the panelists, moderator or chair, including but not limited to the United States Department of Defense; the United States Government; the Department of the Army; The Judge Advocate General’s Corps; the International Criminal Court (ICC); the ICC Office of the Prosecutor; the United Nations Office of the High Commissioner for Human Rights; Curtis, Mallet-Prevost, Colt & Mosle LLP; Fordham University School of Law; the University of Pennsylvania Carey Law School; Columbia Law School; the University of Copenhagen or its Centre for Military Studies; or the Australian National University.