Unprivileged Belligerents (Or Illegal Combatants)

by Kenneth Anderson

[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.


23 Responses

  1. 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 consensus that horses are horses and cows are cows.

    The definitions that are embodied in the MCA are simply American legislative drafting categories that have no relation to Geneva. They track the decisions of In re Quirin, other domestic US cases and laws, and the fancies of those trying to make a way to legally lynch these people. And trust me that is exactly what is being done through creation of throwback procedures that remind me of the kind of procedures from WWII that the Vanderbilt Commission got rid of when putting in place the UCMJ in the 50’s after the Geneva conventions.

    But, let us reason together again and you should remember that these definitions are internal law that are of no moment and are irrelevant on the international plane.

    If someone is classified as an enemy combatant under some strange US law and assuming they are not a US citizen, their country of origin can assert diplomatic protection over them. That country will not give a rat’s ass about the MCA definition but will be very interested in seeing whether there is compliance with Geneva or not as regards their citizen. As will the International Red Cross.

    And we can say that the person is not Geneva this or that all we want. They will in turn say – they are and you are in violation of your obligation and we will see how that dispute will be settled.

    If the United States does not categorize them correctly as considered by their country of citizenship/nationality, that person’s country can espouse the claim of that person to being treated by the US in violation of the US international obligations to that country. All countries have signed the Geneva conventions at this point so this is a universal game.

    In addition, to the extent the Geneva protections can be asserted through habeas or other proceedings by that individual in the US court or otherwise, they will assert it and seek to have their rights vindicated. The US will have the obligation to provide a minimum standard of justice in those proceedings or be again in violation of an international obligation.

    Of course, the interrogators, the military commissions, the Congress whatever can classify and define the person into a lawless category all they want, but that person will still assert the status that he seeks to assert as his.

    To put it another way, just because all those structures for centuries were perfectly willing to let blacks not be considered humans did not make them nonhumans. It was just that the sovereign was unwilling to recognize those rights. Other sovereigns were.

    Whether the Geneva status is recognized or not by the United States is not the key thing. The key thing is whether as a matter of international law that person should have had that status notwithstanding the internal law machinations of a state.

    Now the sticky wicket today is simply not to “call for new law!”. That is a traditional American approach to these things which is to keep changing law to modify – creating a moving target internally. I might submit that the better approach is to force the United States to comply with its Geneva obligations. Yes, to say that the fanciful nonsense that has been the basis of thinking in this area for the past five years is nonsense.

    This type of realism is perfectly possible. I submit it is the kind of clarity on the international plane that states may assert towards each other. These internal games of the US are our games but of no moment for these other countries.

    Yes we have gotten ourselves in a pickel by too many cooks trying to be too clever by half. And it has come back to bite us in the butt – from Abu Ghraib on down.

    So, like a drunk after a binge, let us sober up and return to what worked for the past 50 to 60 years and learn from that rather than try to harken back to the age of bushwhackers etc as a manner to explain our obligations.

    I know we want to lynch these people – but you can not without losing your soul.

    As to Additional Protocol I (for those who say “Geneva can not be complete! Look at the protocol!) the need to do the Additional Protocol I was due in large part to colonial powers being unwilling to extend Geneva to folks they liked to classify as terrorists – see for example the ANC. Full disclosure, my daughter’s godfather who is a writer and poet was also a member of the armed wing of the ANC operating out of Botswana into South Africa. From his stories the South African Defence Force and the ANC on the ground reacted to each other in the manner that military forces respond to each other – privileged belligerents if you want. They applied Geneva protections even if the politico/intelligence types did not want them to because that saved lives on the ground.

    I find myself posting and posting but feel I am speaking to the deaf and the blind. I note more and more professors weighing in in a privileged respondent position and kind of watch this internal game among a group who think what they each say makes so much eminent sense and who seem to be particulary submissive to power as expressed in State position papers that seem all so perfectly worked out.

    And, here in Toledo, we keep telling all of you that you are simply wrong – with the devastating consequences for the United States that your rationalizations etc have permitted.

    And others on this blog also tell you this is wrong, you are wrong, etc and you can not hear it. You are in fear of what you have done it appears to me because it is appalling and awful.

    You should have not thought you were so clever. You should have had the humility to not circumvent the JAG’s and had the humility to listen to the career persons at State etc who had been down this path many times and had good solid advice. All of you thought you were so smart and got us into such a horrible mess.

    Shame on you. You besmirch America and I sincerely resent that – for myself but more for the American kids who are dying heroically or being injured horrendously for a nonsense war that is completely disproportionate to any reality. I also resent this for all of our kids who will bear the burden for years to come of this idiocy.

    Oh the horror. Oh the horror.



  2. “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 training, formations, guard duty, combat, logistics, intelligence, command, but which chooses to conform exclusively to Sharia law and ignore western International Law and Geneva. Of necessity they will fail some Geneva test due to carelessness or willfulness, but to call an army of fighters “civilains” as a result renders the term meaningless and useless.

    The question, then, is what do you call an army that is trained, equipped, and ready to engage in combat but is “over the hill” where you cannot see if they are wearing uniforms or conforming to the Geneva protocols. If you call them Combatants, then what happens when they crest the hill dressed as Afghan tribesmen. If you call them civilians, then what happens if they put on some military insignia before engaging.

    This describes in some sense this middle ground of counter terrorism. What we have is an army, but one that will not necessarily engage in combat where you can then apply Geneva and determine privilege. They may never “cross over the hill”, and yet you have to determine the rules that apply an endless skirmish between small groups of your forces and theirs. That is where I suggest that you classify each engagement and each prisoner and not, as the administration has tried to do, argue that you can simply declare a global classification that ignores individual circumstance.

  3. 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, para. 271), and most recently by the Israeli Supreme Court. Furthermore, if one only looks at the text of Article 5 of GC IV:

    Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

    Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

    In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

    When people say that unlawful combatants are protected by GC IV, this is all they mean: humane treatment and fair trial rights. The ICRC Commentary makes clear, I think, that this provision was intended to apply to irregulars or unlawful combatants, which again, I agree is a legitimate category (at p. 53):

    It is thus clear that the Draft Convention took security requirements into account and it may be wondered whether it was really necessary to resort to express derogations.

    It may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had been possible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often been used lightly, and applied to such trivial offences (2), that it was not advisable to leave the accused at the mercy of those detaining them.


    There is indeed a terminological problem: GC III speaks of prisoners of war, i.e. detained privileged combatants, while Additional Protocol I speaks only of ‘combatant status’, which is actually privileged combatant status.

  4. 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 the assumption that such conditions existed with respect to certain individuals (potentially Hamdan, for example–although i do not know his citizenship status or the details of his arrest), every state party to GCIV has the obligation to exercise universal jurisdiction over persons committing, or having ordered such deportations.

  5. 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.

  6. 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.


    Prof. Roger Alford

  7. 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.

  8. 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 the performance of an overt act — it requires only that the political branches not commit an overt act, viz., not to waterboard, hood, etc. And, the non-self-execution doctrine does not apply to those international human rights treaty obligations that reflect the U.S.’ customary international legal obligations.)

    Can we have a more coherent and comprehensive discussion of the international and U.S. constitutional law governing the treatment of alleged terrorists that takes into account the U.S.’ international human rights law?

  9. 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, when this is obviously not the case. Bellinger was brought in to the State Department because his predecessor (and, i think its safe to assume, the vast majority of career Legal experts in the State Department) was disgusted by the “legal” doctrines that Bellinger played a role in formulating (which legitimized torture, indefinite detention of innocent people based on a “designation” of “unlawful combantant”, warrantless wiretapping of US citizens, etc).

    No matter how you slice it, Bellinger is simply a political appointee with absolutely no prior State Department experience or particular expertise in diplomatic law — he’s basically been a lawyer representing the interests of American spies and saboteurs (aka our own “unlawful combatants”) for most of his career. This information is vital in understanding Mr. Bellinger’s “perspective” on the law — and that he is not here as a legal scholar interested in informed debate, but as an advocate for an administration that has ridden roughshod over the constitution, and an apologist for the worst abuses of human right performed with the sanction of the federal government since the genocide of Native Americans.

    The simple truth is that Mr. Bellinger’s presence here is, in fact, being done under tha auspices of Karen Hughes’ “Office of Public Diplomacy” — Mr. Bellinger is here not as a lawyer, but as a administration propagandist — and that is a fact that should be presented front and center to your audience.

  10. 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 most other Geneva parties on this point is shown by Protocol I, art. 45(1), which makes clear that there’s a presumption of POW status until a tribunal decides otherwise.

    The effect of abandoning this interpretation was to sow confusion as to whether the United States was taking Geneva seriously — confusion that was reaped at Abu Ghraib, at a site that everyone should have agreed should be subject to Geneva. 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.

  11. 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?

  12. 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 can BY DEFINITION, never have a right to take direct part in hostilites. It is the possession of that right that defines the combatant. Civilians who take direct part in hostilities can never have immunity for criminal liabiity for killing — even if they kill opposing combatants. Civilians who take direct part in hostilities are just that, and not combatants. They have unlawfuly taken part in combat, but have not thereby assumed the status of a combatant; their actions are unlawful, but that does not somehow transform their status. Irregulars, by the way, may be combatants (see GC III Art 4A(6), referring to those who spontanteously take up arms against an invader).

    The proper issue, therefore, is not the semantics of the label, but rather, I suggest, what is the effect on the protected status the civilian would possess but for his actions in taking direct part in hostilities? Article 51 of Protocol I suggests an answer: The civilian loses his protected status as a non-combatant under the laws of war. This does not make him an “unlawful combatant.” What it does is make him an “unprotected civilian.” Does this action — that is, taking direct part in hositilities entitle a civilian to POW status? I think not. May he be detained for security reasons? Probably so. How long? Perhaps until the security threat he poses, which must be, I suggest, associated with the hostilities in which he has unlawfully taken a direct part, is gone. May he be detained pending prosecution for crimes commited while taking direct part in hostilities? Probably so. May he be prosecuted for the crime of taking direct part in hostilities as a civilian? He should, in my view.

    Most importantly, perhaps, to opposing combatants, when may he — this civilian taking direct part in hostilities — be targeted and killed? He has, after all, lost his protected status by virtues of his illegal actions in direct support of hostilities. Only when taking direct part in hostilities? Some would say yes, and say yes without defining when “direct part” begins and ends.

    Isn’t that where the tough questions are? When can we target civilians who have taken direct part in hostilities? Only when we catch them in the act? What about when they are home sleeping in bed, dreaming up the attack they hope to carry out next Thursday?

  13. 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: one was acting as the government of Afghanistan, and the other is simply a terrorist group. Members of the latter don’t have any claim to be treated as POWs. Members of the former may, although they still have to meet the requirements of Article 4.

  14. 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.

  15. 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 argued that Congress should take a much stronger role. 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?

  16. 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?

  17. 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 not, and annot be, accomplished primarily within a military framework. There is simply no means of doing so that does not involved gross hypocrisy and a complete negation of any ethical standards at all.

  18. 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.)

  19. 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.

  20. 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 that I haven’t read Ken’s Policy Review paper, but from his original post here it seems his main focus is on the scope of the government’s legal powers to fight terrorism: surveillance, interrogation, targeted killing etc. I agree that this is an important area and for my part I think the relevant concepts here are national security and human rights. It scarcely needs to be said, but the human rights framework encompasses much more than convntional law enforcement. The Israeli High Court took some steps in this direction in its targeted killing ruling by adding human rights principles on top of the laws of war (e.g. no killing when arrest is possible) but unfortunately it didn’t really support this part of opinion with any argument.

    On the other hand Ken’s argument also has implications for the question of how you prosecute terrorist suspects. It suggests that military commissions are the wrong forum, and they should be prosecuted under domestic criminal law. Does Ken think that existing criminal laws are adequate for this?

    Incidentally I think this is all true even if there is some kind of armed conflict between the US and al-Qaeda. I’m actually fairly agnostic on the question of whether there is a non-international armed conflict (NIAC) between the US and al-Qaeda because I don’t think it would make that much difference to the powers the US has. Remember that in NIAC there is no such thing as an authorized act of war — so by calling this an armed conflict the US would not gain any legal powers (under international law) that it doesn’t already possess. NIAC is a very different concept from the traditional notion of war. In practical terms the only important consequence of characterizing this as an armed conflict would be that people could be prosecuted for violations of the laws of armed conflict applicable in NIAC, whether Common Article 3 or customary law. And in any case that would only reach those al-Qaeda members who directly participated in planning or carrying out attacks.

  21. 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 at the highest levels, that are responsible for the decision to go to war, and accountable for entering their state into an unlawful one (such as perhaps, a war of aggression).

    The problem we have with counter-terrorism, it seems to me, is that there is no state to hold accountable for the decision to go to war made by terrorist organizations – so we seek to hold every person who fights for those organizations accountable both for the decision to go to war, as well as for their own personal conduct in that war. So we come up with a “war crime” of conspiracy, for example, which maybe is just a way of condemning the decision of the terrorist organization to go to war, and to hold accountable for it any person who supports it in any way — a blurring of the distinction between jus ad bellum and jus in bello, if the law of war paradigm is to apply.

    From the tactical perspective of the state warfighter, applying the law of war to the conflict has a useful double effect. It makes illegal any effort by any member of the terrorist enemy organization to take any action of violence against the state warfighter or its soldiers – the terrorist organization’s fighters are “civilians taking direct part in hostilities” and have no privilege to kill even combatants sent to battle by the state, nor any privilege to attack or damage what would otherwise be considered military objectives. On the other hand, since the law of war is said to apply to this conflict with the terrorist organization and its members, those individuals, as civilians taking direct part in hostilities, have lost their non-combatant immunity, and may be killed as if they were combatants of an enemy state at war. In other words, we get to kill them lawfully by virtue of the combatant’s privilege possessed in war, but they don’t get to kill us because they have no combatant’s privilege. What we are saying essentially, is this: it is legal for us to fight them, but not for them to fight us — and we suggest further that they are criminals, and subject to criminal punishment, for even trying.

    Doesn’t this model turn what we want to call warfare against terrorist organizations into something more like police work (we can fight their illegal acts because they are criminal, and they may not lawfully resist this in any way, because we are enforcing the law) – and suggest that laws associated with law enforcement and not with warfare should be better applied?

    Just wondering.

  22. 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 IV creation – it is a creation of this list. If GCIII POW status truly is not their situation, these persons would still fit more appropriately in the GC IV Article 5 security risks with those protections. Is that too obvious a point (one that I thank Charly for making again) or is that a point that is too difficult to accept for those in this stream?

    I would think that these persons without the combatants privilege would be liable for ordinary murder, mayhem etc for their acts. A military commmission could be used in those circumstances for the reasons elaborated for their use in Hamdan (no courts available at the time or the place under martial law, etc) but ordinary courts could also be used (Lindh, Moussaoui in US – other country courts in other countries).

    As to whether we need a new paradignm for this, my answer is that given Grotius talked about this over 300 years ago, our major problem is that this is new to us but not to the world. So I do not think we need the new paradigm with new buzzwords like terrorism, counterterrorism, law enforcement, or armed conflict. The labels are not the key in this it is the conduct that the labels are explaining and channeling. There is enough in the laws of war, domestic law, and human rights law to sort through this if one seeks to apply them

    I suspect that new paradigm types are merely seeking to do thing prohibited under the slightly less new (Geneva Conventions are not that old) paradigm to humans – see the torture and the anticipatory self-defense road (rather than saying war as national policy of the kind that Kellogg-Briand was trying to outlaw).

    Hope this helps.



    P.S. What if the security risk civilian asserts that they were fighting in self-defense against the combatant forces as a defense. That would be a very interesting question. Are they precluded from asserting self-defense? What if there are issues about the proportionality of the acts of the combatant forces?

    So, taking the hypo of the guy in the bed – the combatant captures him if he gives no resistance. If he pulls a gun on the combatant or does something threatening, the combatant kills him. Combatant has to have the leeway to make the call – but can not fall into the trap of reprisals and murder. Is that so hard to understand?

    I see no reason to turn warfare against terrorists into something more like police work. Wars between state and non-state actors have gone on for centuries.

  23. 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.

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