a broader al Qaeda plot to conduct terrorist attacks against the United States and its coalition partners”, a fact that it intends to demonstrate at trial.711 At the time of writing, the military commission had dismissed the charges against Al-Nashiri relating to the MV Limburg because the government “failed (…) to offer any documentary or testimonial evidence into the record to factually support their assertion of jurisdiction as to the charges and specification involving the MV Limburg”.712 Pending the US government’s appeal of this decision, the dismissal has been stayed, and the charges remain on the charge sheet. 315. Given the likelihood that the attacks on the U.S.S. Cole and the U.S.S. The Sullivans occurred outside the context of any armed conflict, the charges associated with these attacks present a number of fair trial issues for Al-Nashiri’s trial by a military commission. First, Al-Nashiri could not have been classified as a combatant or even a civilian directly participating in hostilities for these acts, because these terms are not applicable outside an armed conflict. In this regard, ODIHR reiterates that the trial of civilians before military commissions raises concerns regarding the “equitable, impartial and independent administration of justice”.713 Second, because international humanitarian law was not applicable to these specific events, Al-Nashiri could not have violated the laws of war. Hence, in order to comply with the principle of legality, the offences with which he is charged in relation to the attacks on the U.S.S. Cole and the U.S.S. The Sullivans must have been established offences that were already precisely defined by domestic law at the time the conduct occurred. The first MCA, however, was only enacted in 2006, so its offences could not have been applicable to the attacks and could thereby not serve as a basis for AlNashiri’s prosecution. Similarly, the MCA applicable to his current case was only created in 2009 and specifies that offences must be “committed in the context of and associated with hostilities”, whereas the attacks appear to have occurred during peacetime.714 Thus, it does not appear that either domestic or international law was applicable to the offences that Al-Nashiri has been charged with in relation to the attacks on the U.S.S. Cole and the U.S.S The Sullivans. As ODIHR believes that the MV Limburg attack did not take place in the context of an armed conflict involving the United States, a similar reasoning may be applied to the charges stemming from this specific attack. Even assuming that the MV Limburg took place in the context of such armed conflict, the military commission jurisdiction would not extend over acts related to the U.S.S. Cole and the U.S.S The Sullivans attacks and allegedly committed by Al-Nashiri, as a civilian. 316. Under international humanitarian law, civilians that directly participate in hostilities may, unlike combatants,715 be prosecuted under domestic law for their mere participation in hostilities. For instance, a civilian directly participating in hostilities may be prosecuted for the domestic offences of murder or attempted murder. These offences, however, are not 711 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, op. cit., note 707, pp. 6, 11, 23 712 United States Military Commission, United States of America v. Al-Nashiri, AE 168G/AE 241C, “Order – Defense Motion to Dismiss Charges VII-IX for Lack of Jurisdiction under International Law”, 11 August 2014, p. 5, also stating that “[t]he Commission need not reach any conclusions of law based on both parties’ legal arguments”. 713 UN HRC, General Comment No. 32, op. cit., note 648, para. 22. 714 MCA 2009, § 950p. 715 Combatants are entitled to the combatant’s privilege which provides them with the “right” to participate directly in hostilities and are immune from criminal prosecution for belligerent acts which do not violate international humanitarian law. Upon capture, a combatant is entitled to prisoner of war status. API, Arts. 43(2), 44(1); Third Geneva Convention, Art. 4. 137