The common law of war.

• Author: Ohlin, Jens David

Abstract

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war" in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.

Introduction I. Al Bahlul's Conspiracy II. Quirin & the Jurisprudence of Mistakes III. The Lincoln Assassination IV. The Lieber Code V. The Natural Law Era VI. The Dual Meaning of Common Law VII. Conspiracy Under the Common Law of War Conclusion Introduction

What is the "common law of war"? Good question. Few people truly know, even among experienced scholars of international humanitarian law or the law of armed conflict. This phrase sounds like a legal term with a technical meaning, but, as it happens, law of war experts with deep technical expertise have little familiarity with the concept. If the term has a settled meaning, it is a hidden one. So it came as a surprise when the United States government invoked the "common law of war" in recent litigation before the United States Court of Military Commission Review and the D.C. Circuit Court of Appeals in the case of Al Bahlul, an alleged member of al-Qaeda who was prosecuted for the substantive crime of conspiracy before a military commission. (1) In the past, the U.S. government had asserted that conspiracy was an international law violation and therefore subject to prosecution before a military tribunal. (2) However, after both academic experts and federal judges expressed grave skepticism that conspiracy was criminalized under international law, the U.S. government finally conceded that conspiracy was illegal under American law but not international law. (3) One would think that this concession would doom conspiracy prosecutions before the military commissions, but not so. Instead, the federal government broadened its theory of the commissions' jurisdiction. Instead of limiting themselves to the international law of war offenses, government attorneys alleged that military commissions also had jurisdiction to try violations of the "common law of war," defined as "the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars," (4) a position that had previously been advocated in 2006 by Justice Thomas in his lengthy dissent in Hamdan. (5)

This change in position was greeted with shock. (6) What is the common law of war, and what precisely is common about it? (7) Common as in common law from Britain? Or common law as in judge-made precedent? Or neither? The U.S. government was relying on the fact that the phrase "common law of war" was used in passing in the Quirin decision in 1942, (8) and that therefore there was substantial precedent that military commissions have jurisdiction over common law offenses. (9) This theory was rejected by a three-judge panel of the D.C. Circuit in Hamdan II, though the full D.C. Circuit may be more tempted by it. (10)

This Article is a story about a single legal term and its history. Despite what the government says, the phrase "common law of war" simply does not stand for the idea that there is a body of American law of war offenses that can be prosecuted before non-Article III tribunals. (11) In fact, "common law of war" means something far different, though its meaning can only be understood by reference to a bygone era--the era when international law was defined primarily by natural law. (12) And the term lends no support for the government's position that military commissions can prosecute conspiracy as a violation of the common law of war. This is a story of lost meaning, of concepts that fade away and are then rediscovered, plucked from history and placed out of context, in an attempt to sow confusion with ahistorical arguments.

The rest of this Article proceeds, out of necessity, in reverse chronological order. The reason for proceeding in reverse chronological order is to emphasize and appreciate the difficulty that modern jurists face when dealing with a legal concept with an uncertain pedigree. For any jurist, the most logical place to look for an answer is recent history--that is, the usage of the phrase in recent legal texts. That investigation might seem illuminating but the light gives false comfort. In tracing the phrase further back in time, what is revealed is not greater certainty in a settled meaning but rather an origin story that bears almost no resemblance to how government lawyers use the term today. A backward chronological methodology traces and ultimately reveals a lost meaning that deserves consideration in today's debates about not only the fate of Bahlul's prosecution, but indeed the jurisdiction of military commissions generally and the very structure of the law of war itself. What is the law of war? Is it a body of international law or is it partly a creature of domestic law? It goes without saying that the history of the concept of the "common law of war" should be of grave interest not only to observers of Bahlul's case, but indeed anyone who cares about the legal regulation of war. At issue in this one phrase is not just the jurisdiction of a single individual's case but, more importantly, a generalized theory of the law of war as a sub-component of general international law.

The story begins, in Part I, with the government's invocation of the common law of war in the Al Bahlul habeas litigation, and then proceeds, in Part II, to examine the references to the common law of war in the Quirin German saboteurs case during World War II. In Part III, this Article then examines the use of the phrase during the prosecution of the Lincoln assassins (when, as now, few people understood the term). Part IV of this Article will trace the phrase to its introduction by Francis Lieber in his codification of the laws of war, and will explain where and why Lieber referred to the common law of war as a regulating device for civil wars. Chief among the reasons for Lieber's invocation was that the U.S. Civil War was, in fact, a civil war which had to be regulated by a body of law that applied in noninternational armed conflicts. Finally, Part V will explain the origin of the concept of the "common law of war" as developed by early natural law theorists such as Emmerich de Vattel. (13) In short, the phrase "common law of war" had nothing to do with a domestic body of law, but rather a proto-international set of customary rules regarding warfare which applied during all armed conflicts--whether they were classified as international or internal wars. (14) What was "common" about the law was that it applied both to the state and to the rebel group that it was fighting. In other words, it was a conceptual tool--a functional analog--for explaining how the laws of war could apply not just to nation-states, but also to non-state actors which otherwise could not be regulated by the laws of war. Simply put, the common law of war was the exact same thing as the international law of war except applied during internal conflicts. Defined as such, the phrase does none of the conceptual work that the U.S. government expects it to do in its filings in the Al Bahlul litigation.

1. Al Bahlul's Conspiracy

   Bahlul was captured in Pakistan by Pakistani forces in 2001. (15) He was subsequently transferred to the custody of U.S. armed forces and sent to the detention facility at Guantanamo Bay, Cuba, and eventually placed on trial before a military commission--one of the few proceedings to run to a final verdict. (16) After trial, Bahlul was convicted of conspiracy, material support for terrorism, and solicitation, all offenses that are best described as inchoate in nature. (17) In short, Bahlul was not charged with being responsible, as an accomplice, for the 9/11 attacks; indeed, it seems nearly beyond legal dispute that the military commissions have jurisdiction over individuals charged with direct responsibility in the 9/11 attacks as conspirators or accomplices. However, Bahlul's case was built entirely on inchoate offenses because the government was prosecuting him for his contributions to the al-Qaeda cause and the organization's operations directed at the United States--terrorist attacks that never came to fruition because Bahlul and others like him were captured and taken to Guantanamo Bay.

   On appeal, both before the U.S. Court of Military Commission Review and the D.C. District Court, Bahlul argued that the inchoate offenses were not punishable at military commissions because, inter alia, the commission's jurisdiction was circumscribed by the outer boundaries of the international law of war, and the inchoate offenses that formed the basis of his conviction were not part of the international law of war. (18) After consideration of these and other arguments, the D.C. Circuit, sitting en banc, concluded in...