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.