William J. Haynes II
General Counsel
Department of Defense
1600 Defense Pentagon
Washington, DC 20301-1600

Dear Mr. Haynes,

We are writing in response to the issuance on February 28, 2003 of the Draft Military Commission Instruction on "Crimes and Elements for Trials by Military Commission" (the "Draft Instruction"). Human Rights Watch appreciates the opportunity to comment on the Draft Instruction and hopes that comments from the public will be incorporated into the final Military Commission Instruction.

Prosecution of Persons Entitled to POW Status

At the outset, we wish to note that the Draft Instruction cannot be read outside the context of the rules of procedure for the proposed commissions. The Military Order of November 13, 2001 and Military Commission Order No. 1 of March 21, 2002 are inconsistent with provisions of the 1949 Geneva Conventions relating to the prosecution of prisoners-of-war (POWs). Under the Third Geneva Convention, a POW "shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power" (Geneva III, art. 82). A POW can be validly sentenced only if tried by "the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power" (Geneva III, art. 102) and "shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him" (Geneva III, art. 106).

Because U.S. service members are tried under courts-martial with a right of appeal to an independent civilian court, any POW held by the United States must be tried in these same courts and not before the military commissions. Human Rights Watch maintains that the Taliban soldiers detained by the United States - members of the regular armed forces of the then-government of Afghanistan - should have been designated POWs under the Third Geneva Convention and therefore may be tried only in courts-martial. The failure of the United States to properly determine whether any of the persons held in the context of anti-terrorism operations are POWs (or protected persons under the Fourth Geneva Convention) does not obviate its legal obligation to ensure that any trials of persons who should have been ruled POWs are conducted in courts-martial with a right of appeal to an independent civilian court.

Inclusion of Sources of Law

Human Rights Watch urges the Department of Defense to cite the sources of law upon which it relies in describing each offense or legal principle included in the Draft Instruction. For each offense, the Instruction should clarify whether the source of law is the law of armed conflict or U.S. federal criminal law, or both, and set out the specific provision or provisions. Including the sources of law will facilitate accurate descriptions of offenses and convey clearly the basis for the statements made in this document.

Prosecution of Unprivileged Combatants

Under the laws of armed conflict, criminal acts by so-called unprivileged belligerents may be prosecuted under the national laws of the detaining power. The Draft Instruction specifies three crimes by unprivileged belligerents: Terrorism (6-18), Murder by an Unprivileged Belligerent (6-19) and Destruction of Property by an Unprivileged Belligerent (6-20).

Appropriately, Draft Instruction part 4.B on "The Element of Wrongfulness and Defenses" states that: "With respect to the issue of combatant immunity raised by the specific enumeration of an element requiring the absence thereof, the prosecution must affirmatively prove that element regardless of whether the issue is raised by the defense." Thus, where an element of a crime requires the absence of combatant immunity, the prosecution will have the burden of showing that the defendant was an unprivileged belligerent.

Human Rights Watch is very concerned, however, that the definition of who enjoys combatant immunity (5.A) is far too restrictive: it only recognizes the combatant immunity of "lawful combatant[s] in the armed forces of a legitimate party to an armed conflict." This is much narrower than that under article 4 of the Third Geneva Convention, which also includes militia members forming part of the armed forces of a party to the conflict, other militias meeting certain requirements, persons accompanying armed forces, and civilians who take up arms to resist invading forces in a levée en masse. Also, there is no requirement under the Geneva Conventions that a party to an armed conflict be "legitimate" for the laws of war to apply. By defining a privileged combatant more narrowly for the war in Afghanistan and presumably future armed conflicts, soldiers could be prosecuted for permissible wartime acts, which would be in violation of the laws of armed conflict. The notion of legitimacy should not be used to deny combatant protections to those who are entitled to them under the Geneva Conventions.

Deciding which defendants are entitled to combatant immunity is a critical threshold question in any prosecution before the military commissions. The issue must be decided in each individual case based on a fair and independent assessment of the facts before the commission. To date, however, the determination of combatant immunity has not been handled through established U.S. military procedures that comply with the Geneva Conventions. The U.S. government's high-level, public assertions that none of the persons held in connection with the "war on terror," including those captured during the international armed conflict in Afghanistan, are entitled to POW status make it very unlikely that a court under the authority of the executive branch could reach an independent and impartial finding on this issue.

If combatant immunity is improperly decided, it will compound the past misapplication of the Geneva Conventions with respect to determination of detainee status by permitting prosecutions for acts, such as shooting at enemy soldiers or destroying enemy military property, that are permissible on the battlefield. For instance, a Taliban soldier involved in a battle could be found criminally liable for shooting and killing a member of the attacking forces. The comments to 6-19 state: "Unlike the crimes of willful killing or attacking civilians, in which the victim's status is a prerequisite to criminality, for this offense the victim's status is immaterial" (emphasis added). Thus, the fact that the victim was a member of the opponent's armed forces, such as a U.S. soldier who took part in the conflict between the United States and Afghanistan, will be legally irrelevant. In this manner, the military commissions will undermine the concept of combatant immunity, a fundamental element of the laws of armed conflict.

Unclear Nexus between Illegal Acts and Armed Conflict

The Draft Instruction appropriately seeks to define criminal acts subject to military commission jurisdiction as those committed "in the context of and … associated with armed conflict" (5.C). However, it does not differentiate between international and non-international armed conflicts, a fundamental distinction of the Geneva Conventions. This distinction is necessary, for instance, to determine whether a captured belligerent is entitled to POW status and hence combatant immunity.

Human Rights Watch is concerned that the definition of the "necessary nexus" between the illegal acts and armed conflict has no clear limits. This would allow for the prosecution of offenses that have no meaningful relationship to an armed conflict. It would also allow for the prosecution of persons whose cases normally and appropriately would be tried by U.S. civilian courts. Because of the danger to basic due process guarantees of allowing criminal acts away from a classic battlefield to be characterized as acts of war, we maintain that there should be a presumption that cases within the jurisdiction of U.S. courts be tried before them.

Overbroad and Inaccurate Descriptions of Specific Offenses

The descriptions of a number of offenses are vague and, in some cases, misstate the laws of war or the scope of an offense under U.S. criminal law. For instance, the Draft Instruction suggests that the offense of Aiding the Enemy (6-21), which under U.S. law applies to American soldiers helping the opposing side (10 USC § 904), could be applied to persons assisting their own forces against the United States. At a minimum, this provision should clearly distinguish between providing aid to a terrorist organization, which is a separate offense under U.S. law, and assisting the regular armed forces of one's own country against the United States, which is not a crime and therefore cannot be prosecuted in the military commissions.

The Draft Instruction states that the offense of terrorism (6-18) includes attacks "designed" to "influence the policy of a government by intimidation or coercion" or to "affect the conduct of a government." This provision appears to be derived largely from 18 USC § 2331. If that is indeed the source of law, it should be clearly referenced and the scope of these definitions explained in the commentary. The need for clarity in this provision is especially necessary in light of the inappropriately narrow definition of combatant immunity, discussed above, and the assertion in the comments to section 6-18 that "[e]ven an attack against a military objective that normally would be permitted under the law of armed conflict could serve as the basis for this offense." The definition of terrorism could therefore be used to criminalize conduct, such as armed violence against military targets, that is permissible under the laws of war.

The prohibition on Spying (6-22) includes the ambiguous notion of "lurking." This expansion of the definition of spying has no clear basis in international law. For instance, the definition of spying in the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land defines spying as "acting clandestinely, or on false pretenses" to obtain information about the enemy (Art. 29). It does not include the term "lurking," which is so vague as to not give proper notice of the conduct proscribed.

The offense of Perjury or False Testimony (6-23) does not specify, as it should, that false statements made under torture or other forms of ill treatment are not actionable. The Draft Instruction lists duress as a possible defense that "may" be applicable "in certain trials" by military commissions (4.B). The duress provision is wholly insufficient given the conduct of interrogations outside the scope of U.S. constitutional protections against self-incrimination and coercive interrogation and in circumstances in which serious, unanswered allegations of torture have been credibly presented. If U.S. forces are indeed torturing or otherwise mistreating detainees, it is both unlawful and grossly unjust to prosecute them for making false statements to stop or avoid ill-treatment. If U.S. officials are not engaged in torture, then the Department of Defense should have no concern about the inclusion of such a provision, while its existence will ensure that any claims of torture or ill-treatment can be evaluated fairly in the context of prosecution for perjury or false testimony. The section on defenses (4.B) should state clearly that the affirmative defenses are available in all trials by military commission.

We understand that the Draft Instruction is not a criminal code, but rather is intended to summarize the existing law of armed conflict and related offenses. For offenses prosecuted by military commissions to have any credibility, the crimes set forth in the final Instruction must be clearly, tightly, and accurately delineated, particularly for those offenses where there is little international or domestic statutory or case law. Overbroad and vague provisions encourage wrongful prosecutions and convictions. Beyond the individual injustice done, they ultimately call into question the entire judicial process, tainting appropriately prosecuted cases along with the questionable ones.

Omissions of Certain War Crimes

The Draft Instruction lists twenty-four separate offenses, most of which are derived from the Geneva Conventions and others sources of international law, including the Rome Statute of the International Criminal Court. A number of important violations are inexplicably omitted. These include certain grave breaches of the Geneva Conventions, including: torture or inhuman treatment of prisoners of war or protected persons; willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in the Geneva Conventions; and the unlawful deportation or transfer or unlawful confinement of a protected person. Moreover, the description of the offense of rape is overly narrow. The International Criminal Tribunal for the former Yugoslavia has held that rape occurs where sexual penetration occurs without the consent of the victim, rather than on the basis of force or coercion. We urge the Instruction to adopt this standard. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. We also note that while the crime of rape is listed, the Draft Instruction fails to include sexual slavery, enforced prostitution and forced pregnancy.

It is not clear to Human Rights Watch why these important provisions have been omitted. We do not understand the rationale for there being a provision on "Degrading Treatment of a Dead Body" (6-15) but not one specifically prohibiting the torture of detainees.

In addition, while the Draft Instruction includes attacks on civilians as a war crime, it does not include knowingly making disproportionate or indiscriminate attacks on the civilian population or civilian objects, as spelled out in Protocol I of 1977 to the 1949 Geneva Conventions. Protocol I also prohibits unjustifiable delay in the repatriation of prisoners of war and civilians. While the United States has not ratified Protocol I, it has accepted most of its provisions as reflective of customary humanitarian law.

The selective inclusion of only some war crimes, while excluding others of obvious importance and severity, threatens to undermine the legitimacy of the military commissions. The exclusion of the offenses noted above, such as torture, will only raise suspicions that the U.S. government is pursuing a justice of double standards - prosecuting crimes that only al-Qaeda and opposing forces are likely to commit, but omitting crimes that U.S. forces are alleged already to have committed or conceivably might commit. This appearance of a double standard holds true even though the military commissions, by law, cannot prosecute crimes by U.S. citizens.

Statute of Limitations

The Draft Instruction states that the violations of the laws of war and other listed offenses are "not subject to any statute of limitations" (4.C). While there are no statutes of limitations for war crimes, there are statutory limitations on offenses, other than capital offenses and certain terrorism offenses, derived from U.S. federal criminal law. Because the Draft Instruction does not have the force of law necessary to alter or lift any statute of limitations set forth in federal criminal statues, this provision is inaccurate and should be rewritten to conform to the law.

Clarification of Ex Post Facto Applicability

The Draft Instruction states that it does not preclude trial for crimes that occurred prior to its effective date (3.A) and that defendants can be tried for offenses not specifically enumerated in the draft instruction (3.C). While Human Rights Watch understands that this document does not purport to create new offenses - and indeed the Department of Defense lacks the legal authority to do so - these two provisions have created confusion regarding the possibility of ex post facto prosecution. They therefore should be revised to remove any question regarding this issue. The Instruction should make clear that even though offenses not listed therein are prosecutable, as are crimes committed before the effective date of the Instruction, any prosecution before the military commissions will be conducted in full compliance with constitutional and international prohibitions on ex post facto proceedings. The military commissions can only conduct trials for offenses that were criminalized under the law of armed conflict or U.S. federal law at the time the offense was committed.

Again, Human Rights Watch appreciates having the opportunity to comment on the Draft Instruction. Please contact us should you wish to discuss this matter further.

Sincerely,

Kenneth Roth
Executive Director