Since the terrorist attacks of September 11, 2001, legal scholars and practitioners have engaged in a lively and evolving discussion about the descriptive and normative contours of International Humanitarian Law (IHL) (1) and its application in the U.S.-led international effort to combat terrorism. However, after almost a decade of discussion, fundamental questions about when and where armed conflicts exist, who is a combatant, and what constitutes a war crime, remained unanswered. Despite the uncertain status of IHL on these questions, the United States has invoked the law of war as the foundational legal authority for numerous counterterrorism policies. (2) Among the most controversial of these policies is the continued effort to conduct terrorism-related criminal trials in military commissions. (3)
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. (4) 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. (5) Third, the combination of conspiracy--a doctrine that disposes with the stringent mens rea and actus reus requirements of traditional forms of criminal liability--with military commissions trials--which lack many of the procedural safeguards of Article III courts (6)--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.
I. CONSPIRACY TO COMMIT WAR CRIMES AND THE U.S.-LED CAMPAIGN AGAINST TERRORISM
The controversy over whether IHL recognizes conspiracy to commit war crimes as a valid law of war offense is partially informed by a confused understanding of how conspiracy is being used in the military commissions. Section A takes an initial step toward dispelling this confusion by outlining the various liability theories supported by the law of conspiracy generally, and as applied in the military commissions' jurisdictional statute--the Military Commissions Act of 2009 (MCA of 2009). (7) Section B discusses how the conspiracy to commit war crimes provision in the MCA of 2009 is being used in military commission war crimes trials. Considered together, these two Sections provide a descriptive analysis of the U.S. legal and policy framework that undergirds the use of conspiracy to commit war crimes in military commissions. This framework in turn serves as a reference point for the corresponding IHL analysis subsequently provided in this Note. …