The Customary Origins and Elements of Select Conduct of Hostilities Charges Before the International Criminal Tribunal for the Former Yugoslavia: A Potential Model for Use by Military Commissions

• Author: First Lieutenant Melissa J. Epstein, USMC
• Pages: 03

68 MILITARY LAW REVIEW [Vol. 179

THE CUSTOMARY ORIGINS AND ELEMENTS OF SELECT CONDUCT OF HOSTILITIES CHARGES BEFORE THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER

YUGOSLAVIA*: A POTENTIAL MODEL FOR USE BY MILITARY COMMISSIONS

FIRST LIEUTENANT MELISSA J. EPSTEIN, USMC1

CHIEF WARRANT OFFICER THREE RICHARD BUTLER, U.S. ARMY (RET.)2

1. Introduction

   On 13 November 2001, in response to continuing military developments regarding the war against terrorism, the President of the United States-in his capacity as Commander in Chief of the Armed Forces-issued a military order concerning the "Detention, Treatment,

   and Trial of Certain Non-Citizens in the War Against Terrorism."3 This order established the necessary findings, policy basis, and jurisdiction to constitute military commissions, with the mandate of bringing to trial members or supporters of the Al Qaeda organization for "violations of the laws of war and other applicable laws by military tribunals."4 The President's Military Order did not define the phrase "law of war," nor did it identify such acts that might qualify as "violations."

   The ensuing legislative committee hearings and associated discussion immediately following the issuing of this order focused primarily on issues concerning procedure and due process.5 The hearings elucidated no additional information concerning specific criminal acts subject to trial by military commission. Nor did Military Commission Order Number One (DOD MCI No. 1), issued by the Secretary of Defense, address this point.6 While the Secretary's orders addressed a number of procedural concerns, the underlying issue of what the United States considered an actual criminal offense within the context of the law of war remained an open question. Over a year later, the Department of Defense published Military Commission Instruction Number Two (MCI No. 2), listing a series of acts that constituted offenses under the law of armed conflict (LOW).7 Included among these are the specific offenses of "attacking civilians" and "attacking civilian objects".8

   This article argues that the historical policy and practice of the U.S. government regarding the law of war pertaining to the "conduct of hostilities"-coupled with consistent jurisprudence developed over the past eleven years by the International Criminal Tribunal for the former

   Yugoslavia (ICTY)-establishes a solid legal foundation in customary international law for these offenses to be tried by military commission.

2. Overview

   The first part of this article will examine U.S. doctrine on the law of war, including recognition and application of customary law of war under domestic statute, policy, doctrine, and declarative statements. In their totality, these bases form a foundation for what the U.S. government historically acknowledges as customary law with respect to military attacks involving civilians and civilian objects. The second part of this article will detail the chronology of ICTY conduct-of-hostilities cases and the customary basis for such charges under the law of armed conflict. The article examines the customary foundations of ICTY charges dealing with unlawful attacks on civilians and civilian objects in order to explore how these same foundations might form the basis for the similar offenses listed in MCI No. 2.9 The third part of this article will examine the propriety of using the principles articulated in the 1977 Protocol One Additional (Protocol I) to the 1949 Geneva Conventions as a legal basis for charges before a military commission. Ultimately, the analysis of these three areas should demonstrate that customary international law, to include ICTY jurisprudence, provides the required legal foundation to bring these charges against an accused individual before any U.S. military commission.

3. Part 1: The Law of War as Recognized by the United States

   On 30 April 2003, the Department of Defense (DOD) General Counsel addressed the United States' view of the existing law of war in a series of Military Commission Instructions issued for the primary purpose of detailing many of the technical aspects of the conduct of future military commissions. Military Commission Instruction No. 2 enumerates a series of crimes and elements under the heading of "Substantive Offenses."10 Those identified as war crimes include a number of offenses relating to the means and methods by which parties to a conflict conduct hostilities. These include the offenses of "attacking

   civilians" and "attacking civilian objects,"11 both of which clearly apply to the attacks of September 11, 2001, in New York City.12

   Less clear is the technical applicability of these offenses before a military commission. As reflected in MCI No. 2, there are limits to the offenses that may be tried before a constituted military commission:

   No offense is cognizable in a trial by military commission if that offense did not exist prior to the conduct in question. These crimes and elements derive from the law of armed conflict, a body of law that is sometimes referred to as the law of war. They constitute violations of the law of armed conflict, or offenses that, consistent with that body of law, are triable by military commission. Because this document is declarative of existing law, it does not preclude trial for crimes that occurred prior to its effective date.13

   This raises a question as to what standards, norms, principles, or instruments the international community generally recognized as declarative of existing law with respect to conduct-of-hostilities issues in general, and specifically to the above-noted offenses. A further question asks how much of this existing law the international community and the United States also recognized, either by treaty ratification or as custom, at the time of the offense. The latter answer is not immediately clear, as the United States declined to ratify a number of modern conduct-of-hostilities treaties proscribing such acts as grave breaches or criminal offenses.14

   1. Conventional (Treaty) Law

      The United States has long been a state party to the 1907 Hague Conventions in their entirety, to include Annex IV (Respecting the Laws and Customs of War on Land).15 The international community broadly considers the Annex governing the protection of civilians from the effects of hostilities between belligerents to be customary international law with respect to land warfare.16 The 1907 Convention, however, is largely admonitory in nature, and punitive provisions for violations of civilian protections by state belligerents during the conduct of hostilities are developments that are more recent in treaty law. While the 1949 Geneva Conventions contain some punitive terms, notably the grave-breach regime, the relevant provisions prohibiting the extensive destruction or appropriation of property not justified by military necessity, apply only to the actions of an occupying power against a civilian population.17 The grave-breach provisions of the 1977 Protocol I to the 1949 Geneva Conventions (Protocol I) articulated the first explicitly punitive provisions potentially applicable to the offenses at issue.18 The United States is not a party to Protocol I, having decided in

      1987 to forgo ratification.19 More recently, the United States formally withdrew its signature and support for the Rome Treaty process that established the International Criminal Court (ICC), where such punitive provisions are again organic to the treaty.20 Thus, although the crimes and elements set forth in MCI No. 2 are virtually identical to those in Article 8 of the ICC Statute, the latter cannot be the legal basis for charges before a U.S. military commission.21 As the United States is not party to any relevant punitive treaty, a clearly recognized basis in customary law must exist if these offenses are to be tenable before a military commission.

   2. Customary Law as Recognized by the United States

      1. Domestic Case Law

         The courts of the United States have long recognized the binding legal authority of customary international law. In the Paquette Habana case, the Supreme Court held that it was bound to follow "an established rule of international law," where that rule was founded on "the general consent of the civilized nations of the world, and independently of any express treaty or other public act."22

         Civil law contains the few substantive references to U.S. legal doctrine regarding the customary law of armed conflict in domestic jurisprudence, in cases pertaining to the application of the Alien Tort Claims Act and the Torture Victim Protection Act by victims or their representatives against former foreign military officers now residing in the United States.23 These decisions do not address offenses related to

         the customary law of armed conflict because the text of the statutes themselves set forth explicitly the relevant offenses.24

         No established jurisprudence exists within the context of criminal law. Offenses enumerated under the 1997 Expanded War Crimes Act25

         apply strictly on a treaty or convention basis, and no court has ever adjudicated crimes under this provision. The handful of other references and rulings in federal case law relating to this subject pertain exclusively to jurisdiction and other procedural issues.26 No federal court has addressed the substantive issue of which offenses might constitute customarily recognized violations of the law of armed conflict.

      2. Federal Statutes

         As noted previously, the 1997 Expanded War Crimes Act offers no utility in this regard, as offenses enumerated therein are restricted to violations of treaties or conventions to which the United States is a party.27 Another potential source of federal statutory clarification, the Uniform Code of Military Justice (UCMJ),28 is similarly unhelpful in defining applicable offenses. The UCMJ establishes jurisdiction to try violations of the law of war; however, it neither articulates a definition of the law of war nor specifies...