17 Jan Unlawful Enemy Combatants
In this post I would like to take issue with the suggestion that the United States invented the concept of “unlawful enemy combatants” to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as “unprivileged belligerents”) has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, “There is a long record of certain people coming into the category of unlawful combatants— pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.”
I frequently hear the question, “Why not consider all captured belligerents, lawful or unlawful, ‘prisoners of war’?” It is not immediately clear why some advocate such a move. Prisoners of war can be held until the cessation of hostilities, and, ironically, many of those advocating for POW status for Taliban and al Qaida forces object to that basic principle. Moreover, I question whether those who insist that the Taliban and al Qaida be treated as POWs have thought through the practical consequences. Do proponents of POW status for al Qaida detainees expect them to be provided with all the benefits accorded to POWs under the Third Convention, despite their failing to follow the laws and customs of war?
More critically, though, the drafters of the Third Geneva Convention were aware that they were not drafting the treaty in a way that would ensure that everyone who took up weapons on a battlefield would receive POW status. To begin with, Common Article 2 of the Conventions limits the application of the vast majority of provisions, including protections to be provided to POWs, to armed conflicts between two or more High Contracting Parties. Thus, POW status is limited to belligerents engaged in international armed conflict. The U.S. Supreme Court has decided that the U.S. conflict with al Qaida is governed by Common Article 3. Because the Court has found that the conflict with al Qaida is not one between nations, but instead a Common Article 3 conflict, al Qaida detainees are not entitled to POW protections under the Third Convention. This point has been recognized by posters earlier this week, such as Marko.
Moreover, Article 4 of the Third Convention affirms the long-standing distinction between lawful and unlawful combatants because it limits “prisoner of war” status to lawful combatants, such as members of the regular armed forces of a Party to the Convention. The underlying concept here is simple –unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war. By contrast, AU Professor Robert Goldman explains that lawful combatants have combatants’ privilege, which “immunizes members of armed forces from criminal prosecution by their captors for violent acts that do not transgress the laws of war, but might otherwise be crimes under domestic law.”
An examination of the nature of al Qaida and its members results in the conclusion that they are not entitled to POW status under Article 4. Al Qaida members are not members of the armed forces of a party to the Geneva Conventions, meaning that they are not entitled to protection under Article 4(A)(1). Al Qaida has also failed to adhere even to the most fundamental tenets of the laws of war—including the critical need to maintain distinction between civilian objects and military objectives—and have blended into the general population, deliberately choosing not to wear fixed distinctive signs or carry arms openly. Under such circumstances, the United States is correct in denying al Qaida fighters the protections owed prisoners of war.
Although most international legal scholars agree that al Qaida detainees are not entitled to POW status, I recognize there is more debate regarding the status of the Taliban detainees. The Taliban did not display the indicia of regular “armed forces of a party” for purposes of Article 4(A)(1). The armed forces of Afghanistan ceased to exist as such with the dissolution of former President Mohammad Najibullah’s armed forces in the mid-nineties, and were replaced by a patchwork of rival armies. Although the Taliban were the most powerful of these rival armies at the time of the U.S. invasion, it is does not appear that they ever rose to the level of the official armed forces of Afghanistan. Nor were they “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power,” entitled to POW protection under Article 4(A)(3). The Taliban do not possess the attributes of regular armed forces, as they do not distinguish themselves from the general population, or conduct their operations in accordance with the laws and customs of war.
The Taliban is better conceptualized as a militia belonging to a Party to the conflict, which would be eligible for POW protection under Article 4(A)(2) if they used a command hierarchy; wore a uniform or distinctive sign; carried arms openly; and observed the laws and customs of war. The Taliban, however, fail to meet at least two of these conditions: specifically, the Taliban do not distinguish themselves from the general population, nor do they obey the laws and customs of war. Contemporary news reports from the Allied invasion of Afghanistan indicate that the Taliban dressed like civilians, and in fact used this similar dress to blend into the civilian population to evade capture. Worse still, they have targeted and continue to target civilians as such in violation of the laws of war, having adopted suicide bombing techniques similar to those used by al Qaida. These types of transgressions explain why the United States believes that Taliban detainees do not enjoy POW status under the Third Convention.
Assuming that the Taliban were the armed forces of Afghanistan, however, they still do not qualify for POW status because they fail to meet many of the fundamental criteria for POW status under the Third Convention; specifically, the Taliban lacked the command structure, distinctive uniforms, and compliance with the laws and customs of war which characterize regular military forces. Some have argued that these additional factors would not preclude POW status under Article 4(A) (1) because that provision omits the list of requirements found in Article 4(A) (2). This is a difficult question, but as Jean Pictet’s commentary on the Third Convention explains, it seems the drafters of the Convention had an expectation that the armed forces of a party would generally meet the requirements contained in Article 4(A)(2), and it’s unlikely they envisioned granting POW status to groups that openly flout these requirements.
In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict. It also is a way to protect civilians more effectively: when combatants masquerade as civilians to mislead the enemy and avoid detection, civilian suffering increases as a tragic consequence of the failure of these combatants to adhere to the fundamental law of war principle of distinction between combatants and the civilian population.
Long before the war against al Qaida began, the United States forcefully insisted that this incentive to follow the rules remain strong by limiting these extensive treatment protections to those who generally follow the rules of warfare. President Reagan decided not to submit Additional Protocol I of the Geneva Conventions to the Senate for ratification in part because he feared that the treaty contained a disincentive to follow the laws of war by extending combatant status in certain cases to those who do not follow the rules. As former Department of State Legal Adviser Abe Sofaer explained, “Inevitably, regular forces would treat civilians more harshly and with less restraint if they believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their POW status if captured.”
I believe that the bargain of the Third Convention works: follow the laws of war to gain their robust protections and privileges. Those who believe in the rules should insist that incentives to follow those rules not be weakened.
I wanted to add a final thought about the recent Israeli Supreme Court decision in Public Committee against Torture in Israel v. Israel, where it has been reported that the Court concluded there was no category of individuals labeled unlawful enemy combatants. That is not quite what the court held. Instead, the Court held that combatants not in regular armies or militias meeting the requirements of Article 4(A)(2) of the Third Convention were in fact civilians, who lost their comprehensive protections against attacks, “for such time as they take a direct part in hostilities.”
To begin with, it’s important to stress that the Israeli Court largely agreed with our views regarding treatment of terror groups like al Qaida. We agree with the Court that these types of combatants were not entitled to protection from attack regardless of their categorization, nor were they entitled to prisoner of war status if detained. The Court did conclude that Article 51(3) of Additional Protocol I was customary international law, which limited the circumstances in which a “civilian combatant” could be considered a legitimate military target. While we agree that there is a general principle of international law that civilians lose their immunity from attack when they engage in hostilities, we disagree with the contention that the provision as drafted in AP I is customary international law. In fact, the Israeli Court’s opinion appears to recognize that point inadvertently by highlighting the lack of international consensus regarding the meaning of both “for such time” and “direct part in hostilities.”
More centrally, though, most of the sources cited by the Court support our contention that “unlawful enemy combatant” is a category of combatant, distinct from civilians, recognized under international law. Kenneth Watkin, Richard Baxter, Jason Callen, Robert K. Goldman , and Michael Hoffman, all of whom the Court cites, agree that unlawful combatants exist as a legal category, although they may disagree somewhat with us and each other about who qualifies for membership in such a group, and what the legal consequences are, such as whether unlawful combatants are entitled to protection under the Fourth Convention. My point here is that even those that disagree with us as to the legal framework for detaining al Qaida and Taliban detainees should acknowledge that we are on legally firm ground in using this construct as the basis for our framework.
In closing, my sense is that the insistent opposition to our use of the term “unlawful combatant,” despite its clear lineage in international law, is motivated by a fear that acknowledging this category might place the detainees in a legal black hole. While it certainly could be the subject of a policy debate whether we should grant POW status to detainees not legally entitled to it, saying that the Taliban and al Qaida detainees are not criminals on the one hand, nor POWs or protected persons on the other does not mean they do not have significant legal protections. Following the Supreme Court’s decision in Hamdan, all detainees in the conflict against al Qaida and the Taliban must be treated in accordance with Common Article 3 of the Geneva Conventions. They are also protected by the blanket prohibitions on torture and cruel, inhuman or degrading treatment or punishment found in U.S. law. And the Department of Defense recently promulgated a new directive on detention operations and a field manual governing interrogation that provide clear direction to the U.S. Armed Forces regarding compliance with these important norms. Nevertheless, critics prefer to strain to force the detainees to fit into the more traditional legal categories of common criminals or POWs. I am more inclined to agree with the conclusions of the OSCE Rapporteur on Guantanamo, Anne-Marie Lizin, the President of the Belgian Senate, that there is “incontestably some legal haziness” regarding the legal status of individuals captured in the course of military operations against international terrorists and that further legal work needs to be done to clarify the status of these kinds of combatants.
Again, I find myself in agreement with much of what John Bellinger says. I also think that there is a legitimate category of ‘unlawful combatants’ in IHL, even if it is expressly mentioned by any of the relevant treaties. That, however, just begs the question to which legal protections are these combatants entitled. The ICRC, the ICTY, and recently the Israeli Supreme Court stand for the proposition, with which I agree, that there is no gap between the Third and the Fourth Convention. They must be protected by one or the other, and they certainly are protected by customary law. In the words of the Israeli Court (para. 25 of the targeted killings judgment): Needless to say, unlawful combatants are not beyond the law. They are not “outlaws”. God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection, even if most minimal, by customary international law. So, my questions to you are these: (1) Regardless of the applicability of GC IV, does your government now have a clear position on the fundamental guarantees in Article 75 of AP I, which it has always recognized… Read more »
Very helpful post, Mr. Bellinger. Thanks very much. Let’s assume arguendo that all of what you write is correct. (I leave it to others with more knowledge of Geneva to contest the particulars.) That still leaves open the two huge questions at the heart of most of the current disputes: 1. What sorts of treatment does Common Article 3 prohibit? I’ve argued that it prohibits the CIA “enhanced” interrogation techniques, and you’ve not yet written anything disputing that (altough of course you haven’t conceded it, either). 2. Who qualifies as an “unlawful enemy combatant” that may be detained under the laws of war and thus under the AUMF? As you know, the Administration’s view of this category is exceedingly capacious and indistinct. Even in your own formulation, it covers anyone who has in some indeterminate sense “supported” Al Qaeda or the Taliban or any “associated forces” of AQ and the Taliban. How broad is this category, exactly? Shouldn’t it be defined in terms of persons who are actually a threat to engage in future hostilities (combatancy) against the U.S. and its allies, and whose detention therefore would be for the reasonable purpose of incapacitation? Moreover, what is the level and… Read more »
Interesting and informative post, but somewhat misses the more fundamental point. The label “unlawful enemy combatant” may have historical analogs, but the use to which this Administration puts the term (and the consequences of that usage) have no historical parallel. A foreign national taken prisoner as a consequence of armed conflict is subject to the provisions of the Geneva Convention (under one Article or another, depending upon the underlying facts) or is subject to the domestic criminal processes and penalties of the detaining nation. You tacitly acknowledged this very point when you wrote “unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war.” I agre. A detainee is either subject to the protections and penalties of international law or subject to the protections and penalties of domestic criminal law. But the Administratiion does not agree with this “either-or” bifurcation. Instead, the Administration uses the term “unlawful enemy combatant” as a label that removes detainees from both those legal regimes in an effort to afford them no protections of any kind. It seems the Administration believes that “unlawful enemy combatants” exist in a legal limbo in which the only procedural… Read more »
This is all faintly ridiculous. The simple fact is the U.S. government has opted to designate whomever it can as an enemy combatant because it can. Doing so, the government believes, demonstrates to potential terrorists and others who “would do us harm” our resolve to win the war on terror. Which, of course, puts aside for later debate the idea that a state actor can wage war against a concept or a political expression method. No, the U.S. government has adopted its “enemy combatant” stance merely as an extension of its leaders’ personal emotional insecurities and underdeveloped ability to distinguish right from wrong. The right thing to do, and the thing which would have been in furtherance of this nation’s ideals, would be to consider each and every detainee (I use that word because I have no other and I’m in a hurry) as a full-fledged POW and accord them the rights and privileges guaranteed under the Geneva Conventions. It would have been the right thing to do if only as one more way to distinguish “us” from “them.” We would not have this as a reason for not being able to hold our heads high and look others in… Read more »
Mr. Bellinger, 1) Taliban – Your predecessor William Taft IV disagreed completely with you as regards the Taliban. You will note in his memo of 2002 that he indicated that the Taliban did have a distinctive sign (it is their turbans – like academic regalia if you want to know – you can tell a Taliban on the street as compared with others) and secondly that if some members of the Taliban violate the law or customs of war that does not by that fact remove them from Geneva III status. Moreover he recognized that they had a command structure and openly showed arms. And beyond that the strictures of Article 4 do go beyond those four points in recognizing several different types of groups besides the regular armed forces as being entitled to POW status. So what you are essentially doing is revisionism from a prior Office of Legal Adviser opinion in light of the past five year treatment of Taliban. 2) Al Qaida – the essence is whether they are Geneva 3 (POW or Common Article 3) or Geneva 4 security risks. As was noted in the January 2002 memos, the effort was to say they were not… Read more »
Mr. Bellinger says: Moreover, I question whether those who insist that the Taliban and al Qaida be treated as POWs have thought through the practical consequences. Do proponents of POW status for al Qaida detainees expect them to be provided with all the benefits accorded to POWs under the Third Convention, despite their failing to follow the laws and customs of war? For those that are legitimate POWs, I think the answer should be yes. But at the very least, detainees should be treated consistent with the Fourth Geneva Convention and/or CA3. The real objection people have is the manufacture of a “Fifth Geneva Convention” relating to the treatment of unlawful enemy combatants. Oh, there isn’t one? Well, then, “no rulz, dude”. The effort to create this new “category” is an effort to avoid the strictures of the Geneva Conventions, not so that we don’t have to pay al Qaeda combatants pay (as the Third Geneva Convention requires), but rather because the U.S. wants to use interrogation (and/or the occasional humiliation and mistreatment needed to vent anger at these people) that would not be permitted under any of the Geneva Conventions. The ICRC commentaries on the Geneva Conventions Common Article… Read more »
Mr. Bellinger: Al Qaida has also failed to adhere even to the most fundamental tenets of the laws of war—including the critical need to maintain distinction between civilian objects and military objectives—and have blended into the general population, deliberately choosing not to wear fixed distinctive signs or carry arms openly. Under such circumstances, the United States is correct in denying al Qaida fighters the protections owed prisoners of war. As has the CIA (and, my guess is, Special Forces as well). There’s military ‘use’ to “blending in”; you don’t get shot at as easily. When the U.S. finds it useful to do such, it’s harder to make a case that a rag-tag army in a country devastated by war, with many irregulars in the militias, should dress up in spiffy uniforms. And for a large number of them, this is their country, and the expectation that any such forces should remain in regular uniform there — at all times we feel inclined to attack … or gather prisoners — is absurd. There is the legitimate question of who is an “army” and who is a “brigand”, but certainly for the Taleban, they were at the time of invasion as close… Read more »
Mr Kemp has it right when he says “A detainee is either subject to the protections and penalties of international law or subject to the protections and penalties of domestic criminal law.” The primary flaw in Mr. Bollinger’s argument is that there is a distinction between those specifically defined under international law as “unprivileged belligerants” (spies, saboteurs, pirates) and those “detainees” his superiors have chosen to torture and murder based on their belief that if a person is not specifically included within the definitions for POW found in the Conventions, that person can be designated an “unlawful combatant” and that’s the end of it. Mr. Bollinger would have us believe that the objection of the use of the term “unlawful combatant” is based solely on the fact that the term doesn’t exist in the “Laws of War”. This is not merely a red herring, but one which is particularly odiferous, because insofar as his Commander-in-Chief asserts that he has the right to torture “unlawful combatants”, Mr. Bollinger is no better than the “lawyers” in Nazi Germany who found legal justification under German law for every atrocity committed by Hitler. I mean, given what we know about how detainees designated as… Read more »
Please let me remind all commenters that, as discussed in my introduction to Mr. Bellinger, the ground rules for this particular blog are that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm.
Other blogs may not have that as a norm but we do, and we will enforce it.
Prof. Roger Alford
Mr. Bellinger, The most problematic aspect of the U.S. decision to treat the Taliban as non-POWs is that it did so without following the procedural requirements of the Third Geneva Convention, art. 5 of which states that “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [i.e., the categories of persons entitled to be treated as POWs], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” The President is not an Article 5 tribunal, and his Feb. 2002 decision was based on memos from DOJ with serious flaws –flaws that were pointed out at the time by your predecessor as the DOS Legal Adviser. Apart from the failure to comply with Article 5, there are obvious dangers that follow from this decision: it creates a precedent for other military leaders to decide that none of the belligerents in a conflict subject to Geneva (as the conflict between the US and Afghanistan clearly was) are entitled to be treated as POWs, because of the… Read more »
What was the highest priority military cargo sent to Afghanistan after we became involved in the fighting? Weapons? Ammunition? Communications equipment? No, it was 15,000 uniforms, sent because our allies, the Northern Alliance, was dressed just like Al Qaeda and the Taliban. They were in conformance with the laws and customs of war in Afghanistan, though not with international standards based on a Western European standard. That was fine as long as local forces fought other local forces. When the US decided to involve itself in a local civil war (admittedly for very good causus belli) by what peculiar logic can we argue that just because we showed up and redressed our allies that we can then become morally indignant because the enemy continues to wear what they have been wearing for two decades of war (including a decade when we were on their side). I am not arguing that there should not be some destinction in the treatment of those who follow the Laws of War and those who don’t. However, that distinction should be made locally to the circumstances of combat or capture. If US forces engage a clear enemy unit openly displaying arms and maneuvering as a… Read more »
Mr Bellinger, Let me begin by expressing my appreciation to you for you taking the time to address these issues in a forum such as this. I agree with much of what you say. In particular, I agree that it is essential that States provide incentives for combatants to comply with the obligation to distinguish themselves from the civilian population and deny benefits to those who fail to comply with this oblitation. Such an approach is enhances the protections accorded to civilians. When you consider the application of Art. 4 of GCIII to Al Qaida detainees in Afghanistan, is this an admission that the conflict with Al Qaida in Afghanistan was part of an international armed conflict. As I have already said, in response to another post of yours, this is indeed the better view and the decision in Hamdan does not preclude that conclusion. There are a few areas where I disagree with your analysis, though not ultimately with your conclusions. With respect to Taliban detainees, I agree that failure of a combatant, even if part of the regular forces of a State, to distinguish themselves from civilians would lead to a loss of POW status. Cases like Quirin… Read more »
I must admit hestitation to contribute to an argument that has already generated nazi comparisons, but there’s a few points I would like to bring up.
The first point would be how odd an interpretation in which all persons are covered by either the 3rd convention or the 4th is, by reading of the text. Article 4 specifically designates the qualifications for a belligerent to be designated a PoW. Is it a logical conclusion that all those who fail to reach that threshold are civilians covered by the 4th convention? If so, why does Article 1 of the 4th Convention state specifically qualify those protections as applying to those “taking no active part in the hostilities?”
Regarding “anymouse”‘s comment, I think a reading of the 3rd Geneva Convention should quickly reveal why it is impractical to hold Al Qaeda members as PoWs. To begin with, it is likely Article 104 would make any trial of them impossible.
I’d like to add my thanks to you for this post. I also appreciate the difficult challenges you face in navigating these complicated legal issues. It’s very helpful to hear from those who are experts.
Nonetheless, like others, I think this comment you made is key and ultimately damming to the US cause: “unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war.”
I absolutely agree. Why is it, then that the US refuses to hold detainees criminally accountable for their acts of war? Why are they denied representation? Why can they not confront the evidence against them? Why can they be held without charge? Why are they tortured without relief?
The answer is simple and shameful. We don’t have any evidence against them. They are detained merely based on our own fear, ignorance and desire for revenge. How pitiful that a great nation such as ours can’t do any better.
The Nationalist Socialist regime of Adolf Hitler is a very clear and fair precedent for a legal discussion of the fine points of warfare under color of international law. The Nuremburg Trials after the war provide an outstanding window into the legal thought of the allied nations of the time and the case material is available online from the Harvard Law Library.
Under the terms put forth by Mr. Bellinger, could it be said that irregular forces in an occupied country resisting the occupying force, but not connected to a provisional government in exile, for example, be considered unprivileged combatants? Particularly if they are using improvised weaponry, hit and run tactics, and entrenchment into a civilian noncombatant population? For example,the Jews of the Warsaw Ghetto uprising? See “The Stroop Report” for similarly worded details of a counterinsurgency operation designed to remove “Jews and Bandits” from what were “clear and hold” sections of the Warsaw Ghetto. Stroop was executed in Poland for following the order to “clear and hold” the ghetto in a fashion not unlike Fallujah.
Matthew Gross:
Regarding “anymouse”‘s comment, I think a reading of the 3rd Geneva Convention should quickly reveal why it is impractical to hold Al Qaeda members as PoWs. To begin with, it is likely Article 104 would make any trial of them impossible.
Assuming arguendo that such would make a trial under the strict conditions of Article 104 impossible, why does that make it impossible to treat them as POWs? At the most, it would just prevent criminal trials.
But it’s not clear that a good faith effort to “notify” the “Protecting Power” in advance of such a trial cannot be accomplished, even for (alleged) al Qaeda members….
Cheers,
This entire essay is positively irrelevant, and appears to be designed to distract the unwary. Suppose I accept that “unlawful enemy combatant” is a reasonable designation. Who decides who is one, and how do they decide? According to the Adminstration, the President has emperor-like power to decide this on his sole say-so, with no review from anyone (except for people who can be fired at will by the President, which obviously isn’t worth anything). This is plainly contrary to all standards of law whatsoever. If the question of unlawful combatant status was being decided by the impartial judges of ordinary American court system, in response to petitions of habeas corpus, there would be no problem. But the administration is hell-bent on avoiding any actual oversight of this arbitrary designation. “Following the Supreme Court’s decision in Hamdan, all detainees in the conflict against al Qaida and the Taliban must be treated in accordance with Common Article 3 of the Geneva Conventions. They are also protected by the blanket prohibitions on torture and cruel, inhuman or degrading treatment or punishment found in U.S. law.” These statements are disingenuous. The “detainees” have no real method of enforcing these rights, or being recompensed for… Read more »