In short, neither the major conventions on the law of war
nor prominent modern international tribunals nor leading
international-law experts have identified material support for
terrorism as a war crime. Perhaps most telling, before this
case, no person has ever been tried by an international-law
war crimes tribunal for material support for terrorism.
Not surprisingly, therefore, even the U.S. Government
concedes in this case that material support for terrorism is not
a recognized international-law war crime. No treaty that the
Government has cited or that we are aware of identifies
material support for terrorism as a war crime. And the
Government further admits: The “offense of providing
material support to terrorism, like spying and aiding the
enemy, has not attained international recognition at this time
as a violation of customary international law.”
To be sure, there is a strong argument that aiding and
abetting a recognized international-law war crime such as
terrorism is itself an international-law war crime. And there
are other similar war crimes. But Hamdan was not charged
with aiding and abetting terrorism or some other similar war
crime. He was charged with material support for terrorism.
And as the Government acknowledges, aiding and abetting
terrorism prohibits different conduct, imposes different mens
rea requirements, and entails different causation standards
than material support for terrorism. If the Government
wanted to charge Hamdan with aiding and abetting terrorism
or some other war crime that was sufficiently rooted in the
international law of war (and thus covered by 10 U.S.C.
§ 821) at the time of Hamdan’s conduct, it should have done
In short, material support for terrorism was not an
international-law war crime under 10 U.S.C. § 821 at the time
Hamdan engaged in the relevant conduct.
Because we read the Military Commissions Act not to
sanction retroactive punishment for new crimes, and because
material support for terrorism was not a pre-existing war
crime under 10 U.S.C. § 821, Hamdan’s conviction for
material support for terrorism cannot stand. We reverse the
decision of the Court of Military Commission Review and
direct that Hamdan’s conviction for material support for
terrorism be vacated.
from "United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2012 Decided October 16, 2012
SALIM AHMED HAMDAN,
UNITED STATES OF AMERICA,
On Petition for Review from the
United States Court of Military Commission Review"
pdf file found at http://jurist.org/pa...-conviction.php