The surrealism of the moment defies description. Who would have thought, even only a short while ago, that on a nice November morning a US military commission judge in Guantanamo would be holding a Marine general and chief defense counsel for the commissions in contempt, sentencing him to 21 days of confinement in, well, Guantanamo? Who would have thought that on that same day the President of the United States would be deriding the US criminal justice system as a “joke” and a “laughingstock,” while suggesting that the “animal” who perpetrated a deadly vehicular terrorist attack in New York City be sent to that same Guantanamo, with its oh-so-successful, cost-effective military commissions? That he and his White House would, in 2017, be calling this individual an “enemy combatant”? That he would be joined in doing so by prominent US senators, lamenting the fact that the individual concerned has not yet been shipped off to Gitmo, despite the fact that he essentially committed his crime in full public view and on camera, so that the likelihood of his acquittal before any regular civilian court would effectively be nil?
Surrealism is by definition unexpected. Slippery slopes are not. They can often be seen from a very, very long way off. And many of us have spent years warning some of our US colleagues of the dangers of some of the theories they have been advancing in the pursuit of the global conflict against terror. Just a few weeks ago we had just such an “IHL party” on the blog, provoked by a post of Ryan Goodman on Just Security. I pointed out in that discussion that while there was a measure of agreement on the geographic scope of application of IHL, that issue was part of a broader package, and that some items in that package – above all the definition of the relevant armed conflict and the classification of individuals with a nexus to that conflict – continued to attract controversy, inter alia because of the manifest possibility of abuse of some of the lines of argument put forward and their lack of basis in conventional and customary IHL.
So I therefore have a question for our American colleagues, including my friends on Just Security and Lawfare – let us assume that the facts about the New York terrorist continue to be as we know them today, i.e. that he essentially self-radicalized by looking at ISIS materials on the Internet and that he, beyond professing allegiance to ISIS, was at no point subject to the chain of command of that armed group fighting in Iraq and Syria. On these facts, are we in agreement that there is no way that this individual could be qualified, under the relevant rules of international law, as a fighter in any IHL-cognizable armed conflict? I am not asking what consequences this would have under US domestic law, including the AUMF; I am only interested in IHL. Under IHL, it seems to me that there is not even a remotely plausible, let alone genuinely persuasive, argument that this individual has a nexus to any armed conflict/was a member of a non-state armed group engaging in hostilities in such a conflict. He is not an “enemy combatant” in any international legal sense of the word; he is only a (vicious) criminal. This is not a hard or difficult case – it’s an easy, obvious one, again assuming the facts as we know them today. Do we agree?