Al Darbi Pleads Guilty but Questions Remain [UPDATED re AE168]

In news today from the military commissions in Guantanamo Bay, Ahmed Mohammed Ahmed Haza al Darbi pled guilty to charges brought against him—charges which arose from his role in the October 2002 bombing of a civilian oil tanker, the MV Limburg, off the coast of Yemen.  For those interested in more in-depth coverage of the al Darbi arraignment hearing, Wells Bennett over at Lawfare was at Fort Meade today covering the proceedings.  In a statement to the press following the hearing, the Chief Prosecutor said that under the terms of the plea deal al Darbi has agreed to cooperate with prosecutors, presumably testifying against al Nashiri (whose charges include ones brought against him stemming from the Limburg bombing).  Al Darbi’s sentence, which is expected to be between 9-15 additional years of confinement, will not be determined for another (approximately) three and half years.

As Marty flagged earlier this month, the al Darbi case raised an important question of how precisely a case involving a bombing of civilian oil tanker that was registered under a French flag and chartered by a Malaysian firm (Petronas) ended up as trial for war crimes in a military tribunal, and specifically in a U.S. military tribunal.  As Marty wrote:

“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?)”

Perhaps the value of having al Darbi as a cooperating witness in the al Nashiri case motivated the government to strike a deal.  Yet the questions surrounding the legal basis for bringing this case before a U.S. military tribunal may also have influenced the government to settle this case with al Darbi.  With today’s guilty plea, the legal questions raised by Marty’s post will remain unanswered, for the time being at least—as the question of whether the Limburg bombing occurred in an armed conflict will presumably be raised and be the subject of briefing in al Nashiri.

[UPDATE:  02/21/14]:  It looks like we may not have to wait very long before this issue will be heard in al Nashiri. In AE168, the defense has filed a motion to dismiss the charges related to to the Limburg bombing for lack of jurisdiction.  It its motion, the defense argues:

 “Because international law provides no basis for the assertion of military jurisdiction over Mr. Al-Nashiri for the alleged attack on the MV Limburg, and because the expansive jurisdictional provisions found in 10 U.S.C. §§948c and 948d must be construed so as not to conflict with international law, this Commission lacks jurisdiction to try Mr. Al-Nashiri for crimes related to the MV Limburg.”

. . .

“This Commission must presume that ‘an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’ . . . Absent contrary indiction, Congress intends its enactments to comport with international law.  But there can be no argument that Congress did so with respect to the MCA, which ‘explicitly incorporated international norms into domestic U.S. law in 10 USC § 821.'” (internal citations omitted)

However, the government, in its response, argues that the attack on the Limburg “occurred as part of the hostilities between the United States and al Qaeda”:

“That al Qaeda attacked a non-U.S. flagged vessel and injured non-U.S. nationals as part of its campaign against the United States does not diminish the interest of the United States in punishing offenses related to the attack on MV Limburg, which occurred as part of the hostilities between the United States and al Qaeda.”

. . .

“The attack on the MV Limburg was part of an al Qaeda plot against U.S. interests and part of its war against the United States and its coalition partners, so it is of no moment that a U.S. national or vessel was not directly harmed in this specific attack . . . [P]recedent establishes that a belligerent State may exercise jurisdiction to prosecute an unprivileged enemy belligerent for an offense against the nationals of cobelligerents or allies.”

The defense, in its reply, contests the government’s claim that that the bombing constituted hostilities against the U.S.:

“The alleged bombing of the MV Limburg did no constitute hostilities agains the U.S. and France was neither engaged in hostilities in the Gulf of Aden on October 6, 2002, nor a “coalition parter” of the United States outside of Afghanistan.  Accordingly international law does not provide the United States with jurisdiction to proscribe the alleged conduct [related to Limburg bombing].  The alleged bombing of the MV Limburg was one of many ‘isolated and sporadic acts of violence not within the context of an armed conflict.'”

[UPDATE:  02/26/14]:  In a statement today from Chief Prosecutor Mark Martins, we learn that regarding AE168 the judge granted a defense request to submit a supplemental brief on the motion and directed the defense file the brief by March 7.  The prosecution’s response due by March 14.  We will have more details in the coming weeks. 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).