Today, after 5 long years of odd and unprecedented legal proceedings, Salim Ahmed Hamdan finally received a sentence. Convicted on Monday of providing material support for terrorism, Hamdan was sentenced to 5½ years. The sentence is unexpectedly light, and made more so by the fact that he will likely be given credit for the time he has already spent in incarceration, leaving him with just 6 months left to serve.

Already, the decision is being hailed as proof that the administration’s system is both legitimate and fair. The decision does certainly seem to be a fair one on a moral level; Hamdan’s actions were wrong, and he had to be held responsible, but he never actually killed anyone, so a 5 year sentence seems appropriate. Nevertheless, it does not follow that the system itself is fair. More to the point, it says nothing at all about the legitimacy of our current procedure.

What concerns me is the fact that Hamdan could be convicted of a war crime in the first place. There are two oddities about this case that call the verdict, indeed the entire premise of the trial into serious question.

1) War crimes by a non-soldier?

The guilty verdict on the charge of providing material support for terrorism resulted from the fact that Hamdan had provided bodyguard and driver services to Al-Quaeda. Officially, the U.S. government does not consider people who work for Al-Quaeda to be soldiers, but that presents an interesting dilemma. One of the services that Hamdan provided was to drive a truck containing missiles that were later fired at U.S. soldiers. The people who fired the missiles were not in uniform, which is how war crimes enter the equation.

The laws of war are clear about the fact that for a soldier to engage in combat while out of uniform is a severe war crime subject to prosecution by a military tribunal. During WWII, German soldiers caught fighting out of uniform were often executed by firing squad without trial, and those who did receive trials were sent to military tribunals and then usually executed (for instance the Ex Parte Quirin case).

However, this is all premised on the idea that the uniform-less attackers are soldiers. For soldiers, engaged in a legitimate war, to kill while out of uniform is a war-crime. Similarly, for a soldier to attack a civilian is a war crime. For non-soldiers to kill anyone, no matter what they’re wearing, is simply murder.

Thus, we are left with a paradox; we refuse to call these ‘enemy combatants’ soldiers, because that would entitle them to some POW rights that we don’t grant. Nevertheless, we are charging them with war crimes that only seem to meaningfully apply to legitimate soldiers.

2) War crimes without violence?

If, instead of a war crimes trial by military tribunal, we had chosen to treat Hamdan and other Al-Quaeda members as ordinary criminals, he could easily have been charged with accessory to murder. After all, he provided aid and support to non-military personnel who then killed people. As a war crimes case, though, things are a bit more tricky.

In a normal war, non-soldiers who have committed no acts of violence are considered immune to attack. Civilians, even those who work in munitions factories or who ship arms, are supposed to be protected as much as possible. The factories and munitions themselves can be targeted, but the civilians themselves may never be the target of an attack. Similarly, non-military personnel that provided aid to war criminals have traditionally never been held responsible for those crimes. We did not hold German train operators responsible for Genocide because their trains carried people to concentration camps. If this were a regular war, then, and the Al-Quaeda attackers were soldiers committing war crimes, then Hamdan (who clearly wasn’t himself engaged in any combat activity) would be considered immune.

Thus we have a paradox: If we treated Al-Quaeda combat forces as normal criminals, we could certainly convict Hamdan of a serious crime, but not a war crime. If we treated Al-Quaeda combat forces as soldiers, then war crimes trials would be appropriate, but Hamdan could not be held responsible. It is only by using the strange, ill-defined hybrid term of ‘enemy combatant’ that Hamdan could come to be charged with a war crime in the first place.

His sentence may have ended up being an appropriate one, but Hamdan’s is a strange saga of unprecedented, quasi-legal proceedings. The end result is that we have a man who is officially a war criminal, but never harmed or ordered the harm of another human being. Almost stranger still, we are left with a ‘war criminal’ that only has to serve six months from his sentence.

Sadly, this may not be the end of Hamdan’s quirky legal tale. Though he never combated anyone, his status as an enemy combatant may yet cause him trouble. The Bush administration claims it can continue to hold enemy combatants until the war on terror ends. Six months hence will come an interesting day. Let’s hope that Hamdan’s legalistic odyssey will finally be over.