An al Qaeda Armed Conflict with France or Malaysia?: The Legal Question at the Heart of the al Darbi Case
Yesterday the Acting Convening Authority of the GTMO Military Commissions, Navy General Counsel Paul Oostburg Sanz, referred charges against Ahmed Mohammed Ahmed Haza al Darbi, which paves the way for the al Darbi case to proceed to trial.
All of the charges against al Darbi involve his alleged substantial role in the October 2002 bombing of the civilian oil tanker the MV Limburg, off the coast of Yemen. The Limburg was registered under a French flag and was chartered by a Malaysian firm, Petronas. It was carrying almost 400,000 barrels of crude oil from Iran to Malaysia. The attack killed one person (a Bulgarian crew member), injured a dozen others, and caused about $45 million in damage. It also caused a temporary shutdown of shipping in the Gulf of Aden.
Obviously, if al Darbi is responsible for the attack on the Limburg, he has violated plenty of laws (including, presumably, the laws of France, Malaysia, and Yemen), and he should be held accountable in a criminal trial. But how does his case end up as a trial for war crimes in a military tribunal, let alone a U.S. military tribunal? (This same question is raised in the pending Nashiri case, in which one of the charges also involves the Limburg bombing.)
The 2009 MCA provides (10 U.S.C. 950(p)(c)) that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” Section 948a(9) in turn provides that “[t]he term ‘hostilities’ means any conflict subject to the laws of war.” Thus, as a matter of U.S. statutory law, al Darbi can be tried and convicted of the charged offenses only if they were committed in the context of, and associated with, an armed conflict subject to the laws of war. Indeed, because the military commissions are limited (at least in this context) to trying only conduct that violates the laws of war, the prosecution will have to prove that the Limburg bombing was a war crime, which would require proof that it was undertaken in an armed conflict. (If it was undertaken as part of an armed conflict, it almost certainly would be such an offense, since it involved the deliberate targeting of a civilian object and of civilians.)
The referred charges repeatedly assert that the bombing was “in the context of and associated with hostilities.” They offer no specific allegations, however, to support that characterization, or to demonstrate that the bombing was part of an armed conflict. To be sure, by the time of the Limburg attack in 2002, there was an armed conflict between the U.S. and al Qaeda, subject to the laws of war. But was the attack on the Limburg part of that conflict, in any real sense? Was it, instead, part of an armed conflict between al Qaeda and France? Between al Qaeda and Malaysia? (Does France acknowledge that it was engaged in an armed conflict with al Qaeda as of October 2002? Does Malaysia?)
The charges are silent on these questions. They allege only that al Qaeda planned to bomb a civilian oil tanker in order “to cause a world-wide economic depression.” But of course that motive, standing alone, does not demonstrate that the subsequent attack was part of an armed conflict, or that it was a violation of the laws of war.
Presumably the question of whether the Limburg bombing occurred in an armed conflict–between al Qaeda and one or more nations–will be the subject of briefing in the al Darbi case. If and when it is, we’ll try to keep you up to speed on it here.