17 Jan Unprivileged Belligerents (Or Illegal Combatants)
[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University’s Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson’s Law of War blog]
I am in agreement with John’s characterization of the legal and historical-legal status of the category of unprivileged belligerency. I would add just a couple of points on that issue and then use it as a springboard to a slightly broader comment on what appears to be the evolution of the administration’s position on how legally to regard detainees taken in counterterrorism operations.
I confess that I was quite astonished the first time I heard challenges made following 9-11 to the very idea of the legal category of illegal combatant or unprivileged belligerent. It is so long grounded in the laws and customs of war that it was very puzzling to me how anyone could raise a question about the existence of the category, save as a purely strategic attack on holding detainees. As I read further into these arguments, I understood that in part this arose from journalists, lawyers unfamiliar with the law of war, and others who mistakenly believed that the law of war existed in total in the four Geneva Conventions, and perhaps Protocol I. So, for example, an editorial in the Economist a couple of years back announced breathlessly, if ill advisedly, that the terms “unprivileged belligerent” or “illegal combatant” were nowhere to be found in the four Geneva Conventions: well, neither are the term “war criminal” or “war crime,” but of course they have an ancient legal meaning.
The idea in particular that if one flunks the test of the Third Convention, one is thereby a civilian protected under the Fourth Convention makes no sense either historically or as a matter of legal incentives. One has a status if one flunks the test of legal combatancy under Geneva Three. A person who takes active or direct part in hostilities is not a civilian, the person is a combatant. Having flunked the test for legal combatancy under Geneva Three, article 4, the person remains a combatant – but an illegal one. The charge is sometimes made that if the person who flunks Geneva Three is not a civilian under Geneva Four, then that would mean that a person lacked a status altogether. On the contrary, the person who flunks Geneva Three has a very particular status – the status of unprivileged belligerent. It surprises me particularly that the argument would now be raised that illegal combatants are actually civilians under the Fourth Geneva Convention when, as I recall discussions among friends and acquaintances in the prosecutor’s office in the Yugoslavia Tribunal in the mid-90s, such an argument must surely be unavailing in the case of defendants in that tribunal because it would increase incentives to violate the laws of war.
The fundamental reason why these kinds of ungrounded legal arguments have gained much ground in the past couple of years is, however, not simply a lack of knowledge, as in the case of journalists or lawyers not expert in the laws of war. It stemmed from a wrong assertion by the administration that the Geneva Conventions did not apply to the war on terror. This was untenable from the beginning – to announce that the war on terror was a war, but then to announce that the laws of war did not apply. The administration was forced to backtrack – but by then the damage was essentially done, with the result that not just the Bush administration, but the US government, including its military lawyers and others in government, had essentially lost “ownership” of the laws of war. Given the opening of this error, it allowed a wide variety of parties to assert less legally grounded reinterpretations of the laws of war and have them be taken credibly. By the time the administration moved to admit it was wrong, momentum in declaring the meaning of the laws of war had moved outside any precinct of the US government.
Nonetheless, the basic assertion of unprivileged belligerency is correct, insofar as the situation is one of war. The question is not the category of unprivileged belligerency, but instead who is entitled to make such a legal determination and what it means. Again, much criticism has been leveled at the US government for stating that the president or secretary of defense could make such a determination. As a policy matter, I have always agreed that the proper way to resolve these status issues was in accordance with the quick, confined process that the US military had established in its 1990s regulations, calling for a three officer panel in cases of doubt – and at the time, I never had any impression that any human rights group or the ICRC had any doubts as to the validity of those regulations as meeting the obligations of Article 5 of the Third Geneva Convention – certainly those regulations went beyond what the British did in the First Gulf War in holding Article 5 hearings, and I am unaware of any criticism at the time of those hearings. I believe the administration was wrong as a matter of policy not to follow those regulations and instead proceed by designation. Nonetheless, as a strictly legal matter, a literal reading of Article 5 does not require a hearing by a tribunal in every case to determine status – but only in cases of doubt, and it does not, on a strict reading, require that the matter of doubt be determined by a tribunal, either. To say that the administration violated Article 5 as a legal matter was, and is, simply wrong as a matter of the legal text.
If one proceeds by the law of war route in dealing with Al Qaeda detainees, then one ought to proceed as follows: Detainees would be designated as illegal combatants by a hearing and detained; the terms of detention, including interrogation, would be governed by Common Article Three; trial for crimes committed as an unprivileged belligerent would be conducted under Common Article Three in accordance with the customary law minimum procedures found under Article 75 of Protocol I, which article has been acknowledged by the United States as customary law despite its non-acceptance (correct, in my view) of Protocol I – but which is far more minimal in its trial requirements than what the US has put in place in the form of military commissions.
Where things are moving under the Military Commissions Act is different, however, and that Act seems to reflect a general sense that the paradigm is not always war, either practically or legally. The MCA does not use the traditional definition of a combatant – one who takes active or direct part in hostilities – as its fundamental touchstone for liability. It is not especially focused upon combat as such. Rather, the MCA uses definitions of terrorism and terrorist often taken out of domestic anti-terror laws – in particular, concepts such as “material support” of terrorism, and related concepts that, while making much sense as a matter of domestic criminal law, are not grounded in the laws of war. They are getting at quite different forms of conduct that those of combatants, legal or illegal.
The reason for this, quite simply, is that we are collectively coming to understand that much of what we call counterterrorism is not and will not be war. The concepts of the laws of war – grounded in combatancy, legal or not – will not apply very effectively to activities which will often be about conspiracy, material support, financing, sheltering, and so on. At the same time, there is a wide recognition – I hope – that counterterrorism will be as ineffective as it was up until 9-11 if it flips back into the law enforcement-only mode of reactive, post-hoc enforcement. There will be parts of counterterrorism which will be real war, on real battlefields – but it will only sometimes be directed against terrorists as such, and more often, as real warfare, directed against states that harbor terrorists or states that threaten to supply them with weapons of mass destruction. There will also be parts of counterterrorism which will be about genuine law enforcement, Miranda warnings, charges filed, prosecutions in regular courts. But there will also be – and this is what we are struggling to figure out – a broad middle ground of counterterrorism activity which is neither law enforcement (we are not looking to arrest people, but to kill them), nor war (the use of violence does not rise to the legal definition of armed conflict). It includes our questions about surveillance, detention, abduction, targeted assassination, destruction of terrorist property, interrogation, and ultimate release, and many other things. We do not have a worked out body of law to govern this area, either domestically or internationally. This is, however, where some of the most important matters of counterterrorism policy in the future are likely to take place.
I started this post in quite a different place – the longstanding legal category of unprivileged belligerency. I have wound up calling for a new body of domestic counterterrorism law, to address the questions that are not well addressed by the law of war, because, as we are gradually recognizing, forcing the legal paradigm of the laws of war to cover situations that are often not really war does not finally work. The MCA in part begins to recognize this, but in a passive, unstated way – in its definitions of status such as material support, for example. The laws of war work pretty well when applied to actual war (leaving aside the monumental problem that John and Eric have both addressed, which is what happens when you decide that the laws of war are not really reciprocal, and only one side really has to follow them) but they do not work especially well when applied to counterterrorism that is not really war, but something else. It is a mistake to try and reshape the laws of war to fit that something else, and it would be a far better idea to establish something new.
Once more into the breach I step. Professor Anderson slides from unlawful combatant to unprivileged belligerent trying (as has Mr. Bellinger) to put the gloss of unprivileged belligerent from the pre-Geneva 49 area on the unlawful combatant terminology today. With all due respect that will not work. Professor Anderson’s assertions notwithstanding the essence of Geneva is to make it complete. Now obviously the drafters of Geneva like all drafters can not foresee everything. That is why they encouraged all to construe it liberally. The point is not whether Geneva covers everything. Rather, the point is whether the categories of persons of which we speak do in fact fall within Geneva. And within Geneva there is ample room for Taliban or Al Qaeda. Secondly, as a matter of domestic law we can have all kinds of types of criminalizations of persons but in the context of armed conflict the definition of unlawful combatant either tracks with Geneva (in which case we are Geneva obligations compliant) or it does not (in which case we are NOT Geneva obligations compliant). We can call a horse a cow in domestic law but that does not change the fact that there may be an international… Read more »
“A person who takes active or direct part in hostilities is not a civilian, the person is a combatant.” There appear to be several different strongly held views concerning the definitions here. One group holds that “combatant” means one who is privileged to engage in combat (one who meets all Geneva conditions for POW status). In this view, one who engages in combat is a “belligerent”. A civilian who engages in combat is an unpriviliged belligerent. However, the assertion that everyone must be either Priviliged or a Civilian is clearly wrong (whether it is a valid interpretation of Geneva or not). There either other categories, or the words are being stretched beyond reason. For example, combat is not permitted to the uniformed soldiers of a country that has declared its official neutrality. If they participate in combat, they can never be privileged, but being uniformed soldiers in an army they cannot be rationally called “civilians” either. Everyone agrees that Military Spies are unprivileged belligerents. Dressed as civilians, they certainly cannot be privileged. However, when they hold rank as serving army officers, they too cannot be “civilians”. Al Qaeda presents us with an “army” with all the usual features: enlistment, basic… Read more »
Ken, I agree that it is not an unreasonable interpretation to argue that unlawful combatants are not protected either under GC III or under GC IV, as the drafters consigned any protection of this category to customary law. It is also, however, reasonable to argue to the contrary, as does the ICRC in the Commentary to GC IV (p. 52): In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. ‘ There is no ‘ intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution — not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view. This interpretation was indeed adopted by the ICTY (Prosecutor v. Delalic et al., Trial Chamber judgment, 16 November 1998,… Read more »
I think the 2 previous comments have done a good job of refuting Kenneth Anderson on unprivileged belligerency post-1949. I would just add that the text of GCIV art. 4 does not refer to ‘civilians’ but rather to ‘protected persons’, and then goes on to define who will be a protected person for the purposes of the convention. The text is clear that there is no gap between GCIII and IV, and therefore does not require supplementary interpretation. There is one point however that has been ignored. While Hollinger correctly stated that grave breaches currently do not apply to NIAC (although the about face in US opinio juris from 1995-2002 on a purely policy basis must be noted with skepticism), the grave breach provision of GCIV (art.147) includes unlawful deportation of a protected person (as defined in art. 49). The way I read it, this means that while it would be lawful to deport PoWs to Guantanamo (unless it is considered an unhealthy climate under art. 22), it is a grave breach to deport those A-Q,Taliban members,or others denied PoW status (who were not coalition or ‘cobelligerent’ citizens) from occupied territory during the IAC between coalition states and Afghanistan. On… Read more »
Ben writes:
Once more into the breach I step.
ah, Ben, it would appear that you are wasting your time. A quick check of the people who are running this site makes it clear that they are not interested in a rational discussion of the law, but rather in promoting an right-wing ideological interpretation of international law. (I mean, what kind of law school makes Ken Starr its Dean — and what kind of legal scholarship can you expect from such a school?)
For instance, Bellinger himself is simply described based on his current position in the state department, without any reference to his work in formulating the pro-torture/pro-indefinite detention/pro-warrantless wiretapping policies of this adminitration when he worked for the White House and NSA from 2001-2005. Nor, of course, is there any reference to the fact that Bellinger’s predecessor at State found the pro-torture, etc policies anathema — the false impression that our hosts wish to give is that Bellinger represents prevailing legal opinion in the State Department — which is dubious at best, and most likely a complete misrepresentation.
Paul Lukasiak,
Thank you for your comment. Normally I would not respond to your post as the regular readers of this blog would know that your accusation that this is a “right-wing ideological blog” is completely and utterly fallacious. But given that we have many readers who are new to this blog this week, I would politely suggest that you are woefully uninformed about the ideological make-up of the permanent contributors to this blog (including myself), our commitment to diverse perspectives, and our sincere desire for thoughtful and rational debate. If you have any doubts, just peruse the archives of this blog.
Please also know that we have invited many guest respondents from the right and the left, (including Glenn Greenwald and Philippe Sands) to respond to Mr. Bellinger and we sincerely hope and anticipate that more respondents will be able to add to the discussion in the coming days.
Best,
Prof. Roger Alford
Just for the record, I visited this blog for the first time because of links to mr. Bellinger’s appearance and I am pleasantly surprised that he chose to respond to certain questions and comments.
I continue to find it amazing that Mr. Bellinger, the commentators, and respondents have failed to address the substantial body of international human rights law governing armed conflicts and the international cases applying such law to alleged terrorists. International humanitarian law expressly recognizes that it must be construed in conformity with other international law, including international human rights law. See, Hagues Convention’s Martens Clause &its restatements in the GC-Prot. I, ICC Statute. The doctrine of lex specialis has no application to the laws of war when international human rights law expressly governs armed conflicts (both international and non-international). Furthermore, almost all of this international human rights law was adopted after the adoption of the GCs and thereby recognizes guarantees additional to the GCs and, in some cases, even supercedes the old GC guarantees. (Also, please do not point out that many of the relevant international human rights treaty obligations are non-self-executing. The non-self-execution doctrine does not apply when construing federal statutes, such as the War Crimes Act of 1996, under the Charming Betsy Rule. Moreover, the non-self-execution doctrine only applies to the performance of overt acts by the political branches. The prohibition of inhuman and degrading treatment does not require… Read more »
If you have any doubts, just peruse the archives of this blog. I did so after comparing Mr. Bellinger’s actual biography with the information that you provided — I wanted to find out if your distortion was an anomoly, or part of a pattern. My conclusion is that it was part of a pattern on this website in general, and within your “political” writings in particular. Specifically regarding the opinions expressed by you, I found support for egregious state-sponsored discrimination against gays and lesbians [Thoughts on Rumsfeld v. FAIR], support for a double standard with regard to “terrorists” (American mercenaries captured by FARC are described as ‘hostages’ — not “illegal combantants” in a civil war in Columbia….indeed, you simply ignore the fact that the ‘hostages’ were, in fact, mercenaries hired by the DoD), [Federal Court Rules on Lawful Combatant Status of Colombian Terrorist], and a “drank way too much administration kool-aid” perspective on the conviction of Moussaui (“America You Lost, I Won!”). But all this pales against the description that you personally provided for Bellinger — which leads the uniformed reader to assume that Bellinger’s opinions are a synthesis of the thinking of the legal minds in the State Department,… Read more »
Ken Anderson says: “Nonetheless, as a strictly legal matter, a literal reading of Article 5 does not require a hearing by a tribunal in every case to determine status – but only in cases of doubt, and it does not, on a strict reading, require that the matter of doubt be determined by a tribunal, either. To say that the administration violated Article 5 as a legal matter was, and is, simply wrong as a matter of the legal text.” Well, maybe, but this “literal” reading of Article 5 wasn’t the U.S. interpretation before Bush’s Feb. 2002 determination that not a single member of the Taliban qualified for POW status. The U.S. Army Field Manual, in language adopted in 1956, said that the “foregoing provision applies to any person not appearing to be entitled to prisoner-of-war status who has committed a belligerent act or has engaged in hostile activities in aid of the armed forces and who asserts that he is entitled to treatment as a prisoner-of-war or concerning whom any other doubt of a like nature exists.” That seems to be at least as reasonable an interpretation, and it has the force of long-standing subsequent practice. The view of… Read more »
The effect was also to blur the line between Taliban fighters, who at least arguably were fighting for the de facto government of Afghanistan, and Al Qaeda, who were simply terrorists and (I agree) not entitled to POW protection because they were and are not combatants in an Article 2 conflict.
If you entitle (indigenous Afghani) Taliban fighters for POW status (and I agree with that), how can you deny that status to foreign fighters trained by al Qaeda who fought side-by-side with the Taliban?
Ken says: “A person who takes active or direct part in hostilities is not a civilian, the person is a combatant. Having flunked the test for legal combatancy under Geneva Three, article 4, the person remains a combatant – but an illegal one.” I don’t think so. I would argue that the term “unlawful combatant” is an oxymoron. The word “combatant” should be understood as a term of art. Combatants, are by definition, possessed of the privileges and immunities associated with their status. As put by Art 43 to Protocol I, “combatants . . . have the right to participate directly in hostilities.” A combatant who violates the laws of war or commits other crimes may be prosecuted for those violations; thus, a combatant may be found to be a war criminal — but does not as a result lose his status as combatant or the associated immunity for killing he might have done or will do in accordance with the laws of war. Civilians, however, who take direct part in hostilities can never be combatants; they can never possess the privileges and immunities associated with that status. Civilians — or any non-combatant — do not have a right, and… Read more »
Paul Lukasiak asks: “If you entitle (indigenous Afghani) Taliban fighters for POW status (and I agree with that), how can you deny that status to foreign fighters trained by al Qaeda who fought side-by-side with the Taliban?” Because the conflict between the United States and al Qaeda is not an Article 2 conflict but rather (according to Hamdan) an Article 3 conflict, and the protections (other than those of Article 3) of the Third Geneva Convention generally only apply to conflicts that fall within Article 2 — that is, “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” Afghanistan is, but Al Qaeda isn’t, and couldn’t be, a High Contracting Party. (The issue isn’t whether a detainee is Afghani: foreigners could still qualify under Third Geneva if they were part of the Taliban army, and Afghanis could not qualify if they were fighting for al Qaeda.) Treating Taliban and al Qaeda members differently of course depends on the idea (which I think is correct) that although the Taliban and al Qaeda shared certain common interests, including opposing the United States in Afghanistan, they are separate entities:… Read more »
Alan G Kaufman has cut to the heart of the matter. The quandary is what to do with those who do not trouble themselves to follow the laws and customs of armed conflict, let alone ensure their (however informal) armed forces promulgate, instruct, and monitor compliance with those laws and customs. Stipulate that they do not fall under the criteria of GI-III and by default are covered by GIV. What then?
If partaking in or supporting hostilities in such a manner as to not qualify for PW status is in itself a crime, the problem has a resolution. The complicating factor is the burden of proof. Do we just allow for indefinite detention (duration of hostilities) of someone who avoids wearing or carrying any identifying characteristics? Failure to address the problem promotes disregard for the law, promotes risk to genuinely protected civilians, and risks frustration on the part of compliant authorities who may then indeed change customary practices.
The point of the Geneva stream is to protect true noncombatants and those who are hors de combat. Surely it makes sense for the law also to protect the law itself.
I am going to break with protocol, just this once, and enter the comment thread on my own comment. I have my views, as you can see, on the meanings of article 4, 5, civilian, combatant, etc. I want to set those aside, however, and suggest that Alan Kaufman is right to say, look, set semantics aside, what do you propose to do and how do you propose to treat someone – call him a civilian or call him an unlawful combatant, let me agree to set that aside – who takes up the fight and does so as part of a group that systematically violates the laws and customs of war? Beyond that as a question of the laws of war, what about my suggestion that in fact a lot of counterterrorism does not really fit within the model of warfare, nor does it fit within criminal law enforcement, and falls into something that is conceptually quite different – counterterrorism as its own thing? I have suggested the need for a new and different set of domestic legal rules. I discuss some of this in a brief paper in Policy Review, Law and Terror, at SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935394. I have… Read more »
Excuse me, but I have difficulty thinking that there is anything unreasonable about simply reading Hague and Geneva at face value: GC4 art. 4, Hague IV (1907) art. 12, the Martens Clause, etc.
Further, what is you evidence that the Bush administrations policies are in any way necessary or effective?
Just saying so is not proof.
And what’s the point? That we need a licence to kill people on suspicion if a “hearing” determines that there is a 1% chance that someone is a terrorist?
By what rules of evidence or standard of proof?
But am I right in urging that it is less and less plausible to shoehorn counterterrorism into the law of war? Just as it was a mistake to shoehorn it into law enforcement? Consider the Saudi islamic fundamentalist who one blows up a Soviet troop transport vehicle with an IED in afghanistan in the 1980s, and 20 years later blows up a US troop transport vehicle with an IED in afghanistan in 2007…. Consider the nurse working in a hospital in Lebanon funded by Hezbollah, who treats a lebanese child caught in a cross-fire, then treats a Hezbollah member involved in that gun battle with Israeli forces…. Consider the Marine who isn’t guilty of murdering civilians — how is it that mere association with a group whose members commit acts of terrorism condemns one to “unlawful combatant” status, while mere association with a group whose members slaughter civilians without cause is absolved of any guilt by association. Consider the Army private whose commander in chief has authorized the torture of “enemies”…. why isn’t that Army private just as guilty by association as a member of al Qaeda is because its leader authorized the slaughter of civilians on 9-11? Counterterrorism is… Read more »
I think you are probably right that it’s a hybrid but I flatly don’t trust Congress or the administration to come up with new rules that aren’t going to be worse anymore. (Especially the administration.)
The terms “unlawful combatant” and “enemy combatant” cannot and should not be used interchangeably. The term “enemy combatant” is far broader in application and includes not only those who are combatants, that is, those who have atively participated in hostilities, but those whose relationship to or support of the conflict is indirect.
I’m going to follow Ken’s prompting and take up the issue of whether the law of war framework is appropriate. I think Ken is right. Outside the specific context of Afghanistan I don’t think the law of war gets you very far in this case. Even in Afghanistan I don’t think it makes sense to say that someone like Hamdan was taking part in hostilities when all he was doing was trying to avoid being captured by American forces. Ken is absolutely right that the conceptual categories in the MCA are far from those associated with the laws of war. In law of war terms it is a nonsense to define enemy combatants to include people giving material support to terrorists. In the law of war there are only two relevant categories — combatants (i.e. those authorised to fight on the enemy side) and civilians who are directly participating in hostilities (“unpriviliged belligerents” who can be targeted while directly participating). By no stretch of the imagination does material support count as direct participation. Similarly the crimes listed in the MCA are not part of the laws of war — conspiracy, providing material support to terrorists, etc. I have to confess… Read more »
In regard to Ken’s query as to whether we need a new kind of counter terrorism law and some of the comments that follow, I have this question: Isn’t the problem with which we are struggling produced by a merger or overlap or blurring of the distinction between jus in bello principles and those of jus ad bellum? Consider Paul Lukasiak’s questions about why Marines or soldiers who comply with the law of war in their own actions are not guilty by association for actions taken by others as a matter of state or government decision. As I learned it from Ken when I sat in his classroom more than a decade ago, in the classic law of war paradigm, soldiers are not responsible for the decision to go to war, but only for their conduct in war. So those Marines or soldiers, incontestably combatants possessed of combatant’s privileges and immunities, are accountable only for their own behavior in war, and for that of those they command, and not for the decisions made by the state that sent them, or for actions of others as may be directed by that state. It is states, and perhaps the leaders of states… Read more »
Of course, the central assumption of this line of analysis is that the persons that we are willing to put in the category of unprotected civilians are not permitted GCIII POW status or Geneva IV Article 5 security risk status protections. The second assumption is that the action being taken by “us” is a legal war as opposed to a war of aggression. The third assumption is that our combatants with the privilege in this legal war are fighting consistent with proportionality. Put another way, when do civilians have a right of self-defense against these combatants? Like the Resistance to the Nazis in WWII? Never? The levee en masse suggests the contrary. It is not possible that combatants would still not be constrained under the laws of war to be proportional in their efforts so that they have to make a determination as to these persons whether to kill or capture. Those with combatants privilege face the constraint of proportionality that I think the Israeli Supreme Court made a good point about in the targeted killing case as regards these “hostile civilians or unprotected civilians” . But please note that the “hostile civilian or unprotected civilian” is not a GC… Read more »
The question of providing material support intrigues me. Consider these hypothetical people:
1) An enlisted technician responsible for computer networking in a headquarters establishment in the communications zone of a theatre of war.
2) A civilian contractor responsible for computer networking in the same establishment.
3) A member of a terrorist organization providing computer networking services in an administrative or command centre of that organization.
I do understand that the uniformed member of an armed service has some powers and immunities and so forth that a contractor does not, but I must wonder whether liabilities before the law should differ significantly if the contribution to fighting power of each is conceptually similar.
The Geneva stream allows irregulars to spontaneously organize resistance (political self-defence?) and conduct operations in accordance with the laws and customs of war. If there are holes in the Geneva stream (or holes are created) which can be exploited to grant advantages to non-quite-combatants who attack combatants, thereby enraging and inciting combatants to commit acts contrary to the aims of the Geneva stream (eg. reprisals), then the law is working at cross purposes to itself.