context: (a) detainees can be identified as civilians; and (b) a number of individuals have not been tried with pre-existing offences under international or national law, in violation of the principle of legality. 312. Al-Nashiri is being tried by a military commission for offences which relate to the attack on the U.S.S. Cole in the Yemeni port of Aden in October 2000, the attempted attack on the U.S.S. The Sullivans in Aden in January 2000, as well as the attack on the MV Limburg off the coast of Al Mukallah, Yemen, in October 2002. 313. The attack on the U.S.S. Cole and attempted attack on the U.S.S. The Sullivans occurred in 2000. The United States posits that the existence of hostilities at the time of the alleged conduct is a question of fact to be decided by the jury at Al-Nashiri’s trial.707 Yet, ODIHR notes the widely-accepted view among the international community that the international armed conflict in Afghanistan began in 2001, that is after these attacks.708 Furthermore, ODIHR considers that the “global war against terrorism” does not extend the application of international humanitarian law to all events included in it. While the determination of the existence of an armed conflict depends upon an assessment of all the circumstances in the case, it is nevertheless telling that the U.S.S. Cole attack was never treated as an act of war at the time. Instead, the United States President at the time, Bill Clinton, specifically said that the tragic loss of life “reminds us that even when America is not at war, the men and women of our military still risk their lives for peace”.709 314. The attack of the MV Limburg occurred in October 2002 that is after the start of the noninternational armed conflict in Afghanistan. This attack, allegedly carried out by a Saudi citizen, took place in Yemeni waters against a French flagged oil tanker carrying Iranian oil under a Malaysian contract and resulted in the death of a Bulgarian national. While it undoubtedly violated a number of laws, one can reasonably question whether this attack actually took place as part of an armed conflict within the meaning of international humanitarian law and, more specifically, as part of an armed conflict involving the United States. In fact, several interlocutors interviewed by ODIHR argued that, at the time, France did not consider the event as part of an armed conflict with al Qaeda and associated forces.710 The US government, however, maintains that the United States was engaged in hostilities with al Qaeda, the Taliban and associated forces and that the attack was “part of 707 United States Military Commission, United States of America v. Al-Nashiri, AE 104, “Government Response to Defense Motion to Dismiss Because the Convening Authority Exceeded his Power in Referring this Case to a Military Commission”, 13 September 2012, pp. 6-8. See, also, United States Court of Military Commission Review, United States of America v. Al-Nashiri, Case No. 14-001, “Brief on behalf of Appellant”, 29 September 2014, p. 11, 23, (in relation to the MV Limburg charges). 708 See the introduction of this report for additional information. 709 United States President William J. Clinton, “Remarks at the Memorial Service for Crewmembers of the U.S.S. Cole in Norfolk Virginia”, United States Government Printing Office website, 18 October 2000, <http://www.gpo.gov/fdsys/pkg/PPP-2000book3/html/PPP-2000-book3-doc-pg2216.htm>; David Glazier, “Destined for an Epic Fail: The Problematic Guantánamo Military Commissions”, Legal Studies Paper No. 2014-12, Loyola Law School, 31 March 2014, pp. 955-956, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419656>; ODIHR interview with Richard Kammen, op. cit., note 614: Kammen said that the charges related to the U.S.S. Cole are very troubling considering that after the U.S.S. Cole bombing the President said it was an attack in times of peace. ODIHR interview with Human Rights First, 25 February 2014: representatives expressed the view that the armed conflict had not started at the time of the U.S.S. Cole attack. 710 ODIHR interview with Richard Kammen, ibid: Kammen said that it certainly seemed as though France did not perceive that they were at war. They saw the attack as a terrorist attack for a different purpose. ODIHR interview with Human Rights First, ibid: a representative said that even with the Limburg bombing, there was no allegation that the United States was involved at all, France does not see it as part of an armed conflict with al Qaeda and associated forces. 136