Monday, January 08, 2007

No conspiracy to commit war crimes?

Spotty, the other day you mentioned that Salim Hamdan had been charged with a war crime that didn't exist: conspiracy to commit war crimes. Why doesn't such an international crime exist?

An excellent question, grasshopper. For an answer, we will return to Ambassador David Scheffer and the Jurist web article that Spot linked to earlier. The essential reason is that conspiracy would cast too wide a net:
Neither the Uniform Code of Military Justice nor Title 18 of the U.S. Code, which includes the War Crimes Act of 1996 as amended, aligns the crime of conspiracy with the law of war. It is simply implausible, as the Nuremberg judges discovered, to sweep vast numbers of individuals into conspiracy theories about war crimes. A higher standard is required, and that standard is joint criminal enterprise - which of course is a standard for proving a specific crime, not a stand-alone theory of liability.
In other words, grasshopper, you have to prove all the elements of a specific crime against the defendant. In garden variety conspiracy law, you only have to show some pretty trivial act in support of the criminal enterprise. War, on the other hand, is not--usually, anyway--a criminal enterprise.

If every act in furtherance of the war effort was considered enough for a war crimes indictment for conspiracy, that would mean that, say, Dave, might be responsible for Abu Ghraib or Haditha. Even Dave will agree that's a little harsh!

Coming back to Salim Hamdan, it is apparent that the administration wants to hang Hamden for being bin Laden's driver. Nothing more. Maybe there is more, but Spotty says let 'em prove it--openly and fairly--before you put a noose around his neck. Especially if you're doing it in the name of the American people. Even Hitler's drivers didn't swing.

It is too late to hope for the kindness of history in this entire sordid affair; let's not make it worse.

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