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Wala on Conspiracy to Commit War Crimes

By Lawrence Solum

Raha Wala (Georgetown Law) has posted From Guantanamo to Nuremberg and Back: An Analysis of Conspiracy to Commit War Crimes under International Humanitarian Law (Georgetown Journal of International Law, Forthcoming) on SSRN. Here is the abstract:

The use of military commissions by the United States for terrorism-related prosecutions has brought to the forefront a number of issues regarding the military commissions? jurisdiction to try alleged terrorists under the law of war. This Note addresses one such issue: whether conspiracy to commit war crimes, as used in the military commissions, constitutes a valid basis for liability under IHL. This issue is important for at least three reasons. First, the majority of cases pending in the military commissions contain allegations of conspiracy to commit war crimes, with many of these cases relying on conspiracy as the primary charge. Second, as a matter of U.S. constitutional law and international law, the jurisdiction of the military commissions over these cases depends in part on whether conspiracy to commit war crimes can be considered a violation of IHL. Third, the combination of conspiracy - a doctrine that disposes with the stringent mens rea and actus reus requirements of other forms of criminal liability - with military commissions trials - which lack many of the procedural safeguards of Article III courts - presents a dangerously high risk of convicting individuals who have not played a meaningful role in any crime.

This Note proceeds in three parts. Part I outlines conspiracy in its two main forms and describes its use in the military commissions? war crimes trials. Part II analyzes conspiracy to commit war crimes under an IHL framework, focusing on relevant legal provisions and jurisprudence in the immediate aftermath of World War II and in modern IHL. This Part concludes that conspiracy to commit war crimes is not a cognizable law of war violation or liability theory under IHL. Part III discusses the potential application in the military commissions of a modern relative of conspiracy that is supported by IHL: joint criminal enterprise (JCE) liability. This Part concludes that although JCE is a valid theory for attaching liability in war crimes prosecutions, its potential use by the United States in terrorism-related military commissions trials presents significant theoretical and practical issues that require further consideration.

An interesting student note.

Full post as published by Legal Theory Blog on April 17, 2010 (boomark / email).