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Guantanamo Surrealism

Published on November 2, 2017        Author: 

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? 

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11 Responses

  1. Sophie Capicchiano Young

    Dear Marko,

    It strikes me (admittedly at this very early stage in which we have limited information) that the actions of Saipov may be classified as direct participation in hostilities by a civilian. The ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law provides that:
    “Whether individuals directly participate in hostilities on a spontaneous, sporadic, or unorganized basis or as part of a continuous function assumed for an organized armed force or group belonging to a party to the conflict may be decisive for their status as civilians, but has no influence on the scope of conduct that constitutes direct participation in hostilities.” (p.44)

    As such, the Guidelines suggest that the notion of direct participation in hostilities does not refer to a
    person’s status, function, or affiliation with an armed group, but to his or her engagement in specific hostile acts.

    The fact that Saipov has no status within the military structure of ISIS or any known affiliation with the group therefore seems to be immaterial to the assessment of his actions as a direct participatory act by a civilian. This may well be the basis for a US position that Saipov is in fact an enemy combatant.

  2. Jens Iverson

    I agree. But I probably think it’s more interesting than you do. It seems to me there’s a potential nexus of IHL (with respect to CCF/membership in an organized armed group) and Islamic Law in certain cases – my understanding is that in terms of Daesh command and control, Bai’ah must be pledged _and accepted_ – and Daesh doesn’t always accept from a group until they’ve proved themselves, like with Boko Haram in 2015. I don’t know how command and control works in practice across territories, let alone with self-radicalized volunteer murderers. I’d be happy to learn more about/hear more about the Islamic Law/IHL nexus if anyone has any thoughts.

  3. Marty Lederman

    Sophie: Whether or not Saipov’s conduct was DPH that might have justified the use of force against him while he was acting — the police did, after all, shoot him and thereby successfully stop his rampage — it takes more than one instance of DPH to justify indefinite (i.e., status-based, until-end-of-the-conflict) military detention.

  4. Kasey McCall-Smith

    I agree. Surreal in this context is only one of the many ways in which the term applies to Guantanamo.
    The POTUS statement is simply another demonstration of his ignorance of the law, the reality of Guantanamo and the politicians who are trying to ride his erratic coat tails.
    As a US lawyer, I miss what used to be known as just a bog-standard ‘criminal’ and detest the use of ‘terrorist’ or ‘act of terror’ for every single act of murderous lunacy that is unleashed on the US population by anyone from a minority group. These acts have always been and always will be, unfortunately. The misappropriation of terms just fuels the wheels of rhetoric and misdirection. If there is an ‘other’ on which to focus, then the real problems are not in the spotlight.

  5. Thekli Anastasiou

    My IHL knowledge is a bit rusty but wouldn’t Direct Participation in Hostilities require an international armed conflict be taking place?

  6. Kasey McCall-Smith

    Thekli, I would think so. It is also necessary under the terms of US law embodied in the Military Commissions Act 2009 which governs who can be tried at Guantanamo. Which highlights my point.

  7. It cannot be DPH without an armed conflict and a direct nexus to it.

    I don’t think that Saipov may be considered involved in the armed conflcit between US and IS only on the basis of the news reported in the main post.

    Accordingly, I agree with Marko.

    Surprinsingly, POTUS was right (sic) in his first tweet: it is a problem pertaining to law enforcement.

  8. Sophie Capicchiano Young

    Thelki: the ICRC provides that direct participation is equally applicable in NIAC as in IAC.

    Marty: Completely agree, but thinking creatively, if I were a US gov lawyer, this might be the position I would try to advance.

  9. John Morss

    Here in Australia we have a Constitutional brouhaha (hardly a crisis) around, inter alia, the conferring of foreign citizenships on Australian nationals (who happen to be MPs) eg on the basis of descent. As we also know, purporting to confer a nationality/citizenship status en masse, on a foreign population, can be for mischievous reasons. I am wondering if there are some comparisons with the question of the status of a person who may be said to be on the one hand a criminal/’rebel’/’traitor’/’home-grown terrorist’ (“one of ours”) or on the other hand, despite domestic status, an agent of a foreign power/enemy combatant (“one of theirs”). The role played by an executive decision of a foreign state, as to the status of this person, would seem difficult to define, and the effect of a decision by some armed, distant, non-state actor even more so. (On this point I also wonder pedantically about the good ship Caroline: in the October discussion reference was made to “the rebels in the Caroline” but I thought the crew were US nationals? Given the longevity of the consequent articulation of principles it would be good to be precise… my apologies if I am mistaken !!. The William Joyce case also relates. From brouhaha to Lord Haw-Haw….)

  10. Miroslav Baros

    Many thanks Marko for the post. If I may suggest relying on obsolete and outdated definitions seems to engage in unwarranted formalism and marginalisation of the main issue. It does not really matter how we describe the phenomenon; what matters is how to effectively deal with it. I am arguing that criminal justice system alone is not effective in preventing terror attacks due to the nature of the phenomenon. Insisting that the individuals such as Saipov are “criminals” is not conducive to dealing with the threat.
    Turning to US and their definition of terrorism we can see that it is actually defined as a crime: Section 802 of the US Patriotic Act defines terrorism as an act “dangerous to human life that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping”.
    However, criminal justice system alone is not sufficient and effective in tackling the threat. The case of Fawaz Yunis in 1985 illustrates the point plausibly in my mind. A suspected terrorist was found responsible for the hijacking and destruction of a Royal Jordanian aircraft. The assault took place on an aircraft flying from Jordan between Beirut and Amman. “Operation Goldenrod” was launched to force Yunis to the United States to stand trial. The terrorist was lured into international waters, arrested and transferred to the US to stand trial for several violations of the US Criminal Code.
    There has been a dramatic increase and escalation of terrorism recently. It is difficult to disagree I think with the following statement: “Globalization trends and recent technological advances will continue to enable even small numbers of alienated people to find and connect with one another, justify their beliefs, intensify their anger, and mobilize resources to attack—all without requiring a centralized terrorist organization, training camp, or leader.” (National Intelligence Estimate, 2007, Multilateral Counter-Terrorism: The Global Politics of Cooperation and Contestation, London: Routledge, 2003, 3).
    The point I am making is: focusing on the definition or treatment of an act as an act of terror (warranting military response) or a crime only does not resolve the underlying issue and that is effective prevention. In the context of the current threat it doesn’t really matter whether an individual is subject to the chain of command of any armed group or not. Due to the nature of the threat the issue must be put in the context of national security, not only criminal justice, because the most important distinction is that criminals do not swear to God in the course of their crimes and the catastrophic and indiscriminate nature of the attacks. The approach must be proactive not reactive as the criminal justice system alone implies.

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