Over at Lawfare Robert Chesney has a post on the latest military commission charges. These involve the case of the alleged USS Cole bomber al-Nashiri. These charges are crucial for one of the arguments I’m advancing in my forthcoming book, which is that the war is being transformed into an institution of hierarchy and that this particular hierarchy is global.
Central to this argument is the military commission crime ‘murder in violation of the laws of war’. This has a complicated history. It used to be called ‘murder by an unprivileged belligerent’. But after US Supreme Court stipulated that the laws of war did apply to the war on terror, Congress passed the Military Commission Act and added changed the name of the crime. Only liberal international lawyers argue that murder by terrorists is not crime of war. Certainly targeting US sailors in the Gulf is a crime but, the argument goes, it is murder that should be tried in a civilian court not a military commission. This argument was subject to defence motions to dismiss in the charges against Khadr and Jawad. These were rejected and in fact Khadr went on to be prosecuted, under Obama’s watch, by the military commission at GTMO. I wrote about this on Comment is Free last November.
The argument that this crime is institutionalising a hierarchy in the laws of war lies on the other side of the coin so to speak. That is, the US government argues that the likes of Nashiri are not common criminals, they are enemy combatants. But of course there is nothing illegal in enemy combatants targeting other enemy combatants in an ongoing armed conflict. (The attack on the Cole was an attack on a military target). Yet ‘murder in violation of the laws of war’, which appears in the MCA 2009 passed under Obama’s watch, identifies al Qaeda as unlawful, regardless of their behaviour on the battlefield and allows the US to prosecute them for murder for targeting US soldiers. There is no norm of ‘battlefield equality’ between combatants here. It is interesting in this respect that Chesney describes murder in violation of the laws of war in terms of perfidy, which is universally accepted as a war crime. As I note in the Guardian piece, however, defense counsel in the Jawad case argued that this again was irrelevant in the so-called war on terror.
The second point to note here is that the attack on the Cole took place before 9-11, which begs the question was there an ongoing armed conflict at that time and can the laws of war be invoked. Also, the attack took place in Yemen, which is outside the geographic scope of the battlefield commonly associated with the war on terror, ie Af/Pak or Iraq. The issues here were discussed in the first post is this thread. Again, it begs the question can the laws of war be invoked here.
Now, I expand on the implications of these developments in my December 2010 Millennium article and will be updating drafts of the forthcoming book. The point is that the decision to prosecute Nashiri for murder in violation of the laws of war extends the practice started by Bush and continued by Obama in the Khadr case. It is a slow and subtle transformation but one that historians of the laws of war will be familiar with, for this kind of hierarchy was common in pre-Westphalian just wars. Again, my Millennium article expands on this. We may, in other words, be going back to the future of warfare.