Criminal Conspiracy—Hamdan v. Rumsfeld

In the course of exposing the lack of legal basis for the Bush administration’s military commissions, the United States Supreme Court made some interesting arguments in yesterday’s decision in Hamdan v. Rumsfeld, 548 U.S. ____ (2006), concerning conspiracy as a war crime.^[1]

The Court stated that the jurisdiction of military commissions extends only to two types of offenses—violations of the laws of war and breaches of military orders that cannot be remedied by court martial.^[2] Neither of these types of offenses must be otherwise triable in a military tribunal or in a state court of law.

The majority agreed with the government’s arguments that “the war commenced with the events of September 11, 2001.”^[3] The Court pointed out that Mr. Hamdan was charged with making agreements “with Osama bin Laden and others to commit war crimes” prior to those events.^[4] Given the timing, as well as the fact that none of these or other alleged overt acts occurred in a “theater of war,” the Court concluded that “[n]one of the overt acts that Mr. Hamdan is alleged to have committed violates the law of war.”^[5] Thus, a conspiracy comprised of overt acts committed outside the time and place of war “is not a stand‑alone offense against the law of war.”^[6]

The Court next considered the case relied upon most strongly by the administration to justify the creation of the military commission, Ex Parte Quirin, 317 U.S. 1 (1942). The Court suggested that an adequate basis for jurisdiction might apply if, as in Quirin, there was a “plain and ambiguous” precedent for prosecuting an offense that is not “defined by statute or treaty.”^[7]

Justice Stevens, writing for the majority, characterized this “Quirin” standard as one in which the jurisdiction of a military commission can apply (if all other conditions are met) over an offense that is “by ‘universal agreement and practice,’ recognized as an offense against the law of war.”^[8] This line of reasoning places the burden on the proponent to show that the offense is “acknowledged to be an offense against the law of war,” and is structurally similar to the argument establishing jurisdiction in international courts based on customary international law.^[9]

In assessing the argument, the Court failed to find that conspiracy is an offense recognized in treaty laws, notably the Geneva Conventions or the Hague Convention.^[10] The Court also noted that the Quirin court did not resolve the issue of whether or not conspiracy was a discrete crime of war prosecutable by military commission.^[11]

Finally, the Court found no support for conspiracy as a war crime in either legal treatises or in international customary law.^[12] The majority correctly noted that although an individual can be charged with the crime of conspiring to commit genocide in an international criminal law tribunal, this is actually a statutory violation of the crime of genocide.^[13] In international criminal statutes, conspiracy is a mode of liability proved circumstantially under a theory of joint criminal enterprise.^[14]

Looking through the tribunal statutes to sources in customary international law, the Court found no more support there for jurisdiction of the Guantanamo military commissions than in American jurisprudence.

The Supreme Court’s decision yesterday leaves the Bush administration with the task of finding, or creating, legal means for trying Mr. Hamdan and his co‑detainees. Options include recharging Mr. Hamdan in a military commission reconfigured by Congress to meet legal requirements, or reclassifying him as a prisoner of war for trial under United States military law. It will also be interesting to see how this ruling is received in the area of international criminal law.

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[1] Hamdan v. Rumsfeld, 548 U.S. ____ (2006).
[2] Hamdan at 34.
[3] Hamdan at ftnt. 31.
[4] Hamdan at 36.
[5] Hamdan at 36.
[6] Hamdan at 45.
[7] Hamdan at 38. See also Ex Parte Quirin, 317 U.S. 1 (1942).
[8] Hamdan at 39, citing Quirin supra note 7 at 30.
[9] Hamdan at 40.
[10] Hamdan at 40.
[11] Hamdan at 48.
[12] Hamdan at 43-47.
[13] Hamdan at ftnt. 40, citing Judgement, Prosecutor v. Tadic, Appeal Chamber, IT‑94‑1‑A, Jul. 15, 1999.
[14] See for example Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 4(3)(b).