Trial of Russian Taliban could shed light on law of war

by Michael Cochrane
Posted 8/03/15, 08:37 am

A terrorism case being tried in federal court could set a precedent regarding whether certain terrorism suspects are lawful military combatants under the Geneva Conventions and therefore protected from criminal prosecution.

Unlike most of the terror suspects who have been tried in civilian courts since the 9/11 attacks, Irek Hamidullin—a former Russian officer who allegedly became a follower of Afghan Taliban leader Mullah Omar—did not support terrorists through financing, recruiting, or other activities outside the theater of war. He was a combatant captured on the battlefield, accused of being the commander of a 2009 attack against U.S. and Afghan forces.

The trial, which opened Thursday in Federal District Court in Richmond, Va., is part of the Obama administration’s efforts to shift the prosecution of terrorism cases from military tribunals to the criminal court system. 

“This is one of the first trials in recent memory where an enemy fighter has been tried in federal court,” said Gary D. Solis, a former Marine who served as a military prosecutor and judge and now teaches the law of war at Georgetown University and George Washington University.

Solis believes the Military Commissions Act of 2006, which established military commissions to try enemy combatants, has been largely ineffective, with most of the handful of convictions reversed on appeal.

Under the Military Commissions Act, military tribunals would determine whether detainees were considered lawful or unlawful enemy combatants. But a subsequent 2008 U.S. Supreme Court decision ruled the Combatant Status Review Tribunals provided by the 2006 law were “inadequate,” and that Guantanamo captives were entitled to the U.S. justice system.

Hamidullin is facing 15 charges that include providing material support to terrorism, attempting to destroy a U.S. military aircraft and conspiracy to use a weapon of mass destruction. But his guilt or innocence likely will hinge on whether his actions were those of a lawful or unlawful combatant, something about which the Geneva Conventions themselves are not clear.

“I’m obviously blazing a new frontier here,” U.S. District Court Judge Henry Hudson said during a hearing last month, according to a Reuters report, where he pressed attorneys with questions about whether Hamidullin was a war combatant under the Geneva Conventions.

“Try to focus on statutes that show that the defendant is a lawful or unlawful combatant. This is somewhat of a clouded issue, murky at best,” Hudson told attorneys for both sides, according to Reuters.

The Third Geneva Convention of 1949 deals with prisoners of war—personnel captured by an enemy but who are considered “lawful combatants” because they are fighting as soldiers of a duly recognized national authority. Hamidullin’s attorneys attempted to get the case dismissed on the grounds that he was a lawful combatant under the Third Geneva Convention. The government, represented by U.S. Attorney Michael Gill, will argue the Taliban have no legal standing in Afghanistan and that Hamidullin is an unlawful combatant.

If Hamidullin is not considered a legal combatant under the Third Convention, the prosecution must also prove his actions do not afford him protection under the Fourth Convention, which addresses the treatment of civilians who fall into enemy hands. In its 1958 commentary on the Fourth Geneva Convention, the International Committee of the Red Cross concluded the protections afforded detainees under the Fourth Geneva Convention do not apply to those who cannot be determined to be lawful combatants.

“If civilians directly engage in hostilities, they are considered ‘unlawful’ or ‘unprivileged’ combatants or belligerents … [and] may be prosecuted under the domestic law of the detaining state for such action,” the organization determined.

The Associated Press contributed to this story.

Michael Cochrane

Michael is a retired Defense Department engineer and former Army officer who is an adjunct professor of engineering management at Old Dominion University in Norfolk, Va. He is a graduate of the World Journalism Institute's mid-career course. Follow Michael on Twitter @MFCochrane.

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