Tuesday, July 21, 2009

The Curious Case of Mohammed Jawad

Mohammed Jawad (right) apparently travelled from his native Pakistan to Afghanistan to take a job clearing mines. On or about December 17, 2002, when he was somewhere between 12 and 16 years old (prior post), Jawad was captured fleeing the scene of a grenade attack. He was accused of tossing a grenade into the window of a jeep carrying two U.S. soldiers, Sergeants First Class Michael Lyons and Christopher Martin, and their interpreter, Assadullah Khan Omerk; the three were wounded in the attack.

Upon capture, Jawad was first taken to Bagram Air Base in Afghanistan and then to the Naval Base at Guantánamo. A victim of the so-called frequent flier program, which involved waking detainees up every couple of hours to change cells, Jawad has apparently tried to kill himself while in detention by slamming his head repeatedly against a wall. His Combatant Status Review Tribunal and Annual Review Board proceedings, which confirm his status as an enemy combatant, are available here.

Jawad apparently confessed to the crime at one point, but later recanted, arguing that his confession was the result of torture. The military commission set to prosecute him has ruled it will not look at evidence produced during particular interrogations; the U.S. government recently indicated it would not seek to invoke such evidence in the habeas corpus action proceeding in federal court. (See here for the latest development in this admissibility-of-evidence issue.)

On October 11, 2007, Jawad was charged before a military commission with three counts of attempted “murder in violation of the law of war” (in violation of 10 U.S.C. §§ 950t (defining attempts) and 950v(b)(15)) and three counts of “intentionally causing serious bodily harm” (in violation of 10 U.S.C. §950v(b)(13)). “Murder in violation of the law of war” is defined by the Military Commission Act of 2006 as

(15) MURDER IN VIOLATION OF THE LAW OF WAR.—Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

The crime of intentionally causing serious bodily injury is formulated as follows:

(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—

(A) OFFENSE.— Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term
‘serious bodily injury’ means bodily injury which involves—

(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

His charge sheet is available here (and see prior post).

Most military commission proceedings have been suspended pending a final decision from the Obama Administration about whether to try to salvage the Bush Administration’s military commissions or transfer all prosecutable detainees to federal criminal custody. Even if the Obama Administration does fully revive the military commission scheme in some form or another, a question remains as to the legality of the charges against Jawad. Hamdan v. Rumsfeld (2006) made clear that military commissions may only assert jurisdiction over violations of the law of war. This leads to the inescapable question of whether the particular charges leveled against Jawad are in fact violations of the law of war.

The 1949 Geneva Conventions and their 1977 Protocols, the latter of which the U.S. has not ratified, set forth a number of war crimes that are prosecutable when they are committed against so-called “protected persons.” Persons protected by the Conventions are civilians and combatants who are hors de combat [outside of combat] by virtue of illness, injury, capture, or surrender. These “grave breaches” of the treaties include:
► wilful killing,
► torture or inhuman treatment, including biological experiments,
► wilfully causing great suffering or serious injury to body or health,
► unlawful deportation or transfer or unlawful confinement of a civilian,
► compelling a protected person to serve in the forces of a hostile Power,
► wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention,
► taking of civilian hostages, and
► extensive destruction and appropriation of civilian property, not justified by military necessity and carried out unlawfully and wantonly.

Combatants who are active and thus not hors de combat do not constitute protected persons; accordingly, they cannot be the victims of grave breaches. Additional war crimes exist in customary international law and trace their provenance to the Hague tradition of international humanitarian law concerned with regulating means and methods of warfare. Certain violations of the regulations appended to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land — including killing or wounding treacherously, employing weapons that cause unnecessary suffering, bombarding undefended towns, and pillage — are, for example, prosecutable as war crimes before federal courts pursuant to the War Crimes Act. By now, most Geneva and Hague crimes have been the subject of war crimes trials before the ad hoc criminal tribunals.

Attacking a privileged combatant (or “lawful combatant” in the lexicon of the Military Commissions Act) is not, in and of itself, a war crime so long as proportionate force and permissible weapons are used (i.e., weapons not intended to cause unnecessary suffering such as asphyxiating gases). Indeed, attacks between privileged combatants are the very essence of warfare. An attack on a privileged combatant is not a war crime even if perpetrated by an unprivileged combatant, such as Jawad is alleged to be. To be sure, there are consequences within the law of war when unprivileged combatants directly participate in hostilities. (See Article 51(3) of Protocol I and Article 13(3) of Protocol II — protecting civilians from attack unless and for such time as they take a direct part in hostilities). In particular, when unprivileged combatants directly participate in hostilities without the privilege of doing so, they no longer benefit from civilian immunity and are subject to attack. Such individuals can also be captured and prosecuted for violations of the operative domestic law (such as murder, assault, battery, reckless endangerment, and mayhem). Or, they can be prosecuted under international law for using unlawful weaponry. They may also be guilty of terrorism, although even this is contested.

But unprivileged combatants commit no known war crime by directly participating in hostilities without the privilege of doing so simpliciter. In other words, Sergeants Lyons and Martin would have been entitled to use deadly force against Jawad had they seen him prior to his alleged attack. The attack itself, however, does not constitute a war crime. That said, it is, undoubtedly, a violation of Afghani law and could be prosecuted as such. (It would be a violation of U.S. law only if that law applied extraterritorially).

The only crime enumerated in the Military Commissions Act that might be applicable here, although it was not charged, is perfidy (which is akin to the Hague Convention crime of killing or wounding treacherously). The MCA defines the crime of perfidy as follows:

(17) USING TREACHERY OR PERFIDY.—Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled
to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
The essence of perfidy is giving the impression of being a protected person (i.e., a civilian in Jawad’s case) in order to take advantage of civilian immunity while behaving like a combatant. It is not clear why the military commission prosecutors have not been charging perfidy in more unprivileged combatant cases other than because it does not carry the moral stigma, rhetorical punch, or basic name recognition of an attempted murder charge. They would do well to do so: such a charge stands on firmer legal ground than the dubious war crimes of the murder of or injury to a lawful combatant.
For more on the Jawad case, see here.

No comments: