Illegal Combatants and Counter-terrorism — A Middle Way

Like others, I have followed this week’s entries with fascination. From outside the United States, it is a pleasure to see such a spirited debate conducted in such a fine manner. It is a tribute to John Bellinger that the thoughtful tone that he set at the start has been continued.

I wish to take up two points. First, there is the issue of unlawful combatants/unprivileged belligerents. As I made plain in my earlier contribution, I agree in practice with much of what John says. However, in trying to get the message across to a European audience, it is necessary to realise the linguistic change that took place between 1907 with the Hague Regulations and 1977 with the Additional Protocols. In Hague, Chapter 1 is headed ‘The Qualifications of Belligerents’. There follow three articles dealing with the armed forces, ending with Article 3 which states ‘The armed forces of the belligerent parties may consist of combatants and non-combatants’. We tend to view that article through 21st century glasses and consider that non-combatants relate to medical and religious personnel but that was not how it was seen in 1907. Your status as a member of the armed forces was one of belligerent; your conduct decided whether or not you were a combatant. Thus logistic personnel – and even military lawyers! – would be considered as ‘non-combatants’ as they did not take a direct part in hostilities.

Although the vocabulary was already beginning to adapt prior to that date, 1977 and Additional Protocol I fundamentally changed the meaning of ‘combatant’. All members of the armed forces (other than medical and religious personnel) were now combatants by status, regardless of what they did. Everybody else was a ‘civilian’ though civilians would lose their protection as such by taking a direct part in hostilities. The word ‘belligerent’ has gone and with the change of meaning of the word ‘combatant’, there is no longer any agreed word to describe the person who takes a direct part in hostilities as a matter of conduct. In debates in the United States, he is referred to as a ‘combatant’, whether lawful or unlawful, in accordance with the Hague usage but to those brought up on a diet of Protocol I language, an ‘unlawful combatant’ has a completely different meaning. That is why I prefer to go back to the old Baxter term of ‘unprivileged belligerent’. If we have reversed the meaning of combatant, then maybe the only answer is to do the same with belligerent. Viewed in this way, much of the debate over unlawful combatancy dies away. As John Bellinger rightly says, the concept has an ancient lineage.

My second point is to agree in large measure with Ken Anderson. Counter-terrorism lies on the borderline of differing legal regimes and we need to use all the legal tools in out toolbox, not just to concentrate on one. There is indeed a place for the laws of armed conflict, as Afghanistan made clear, but there is also a place for criminal law, domestic, transnational and international, with the consequent impact of human rights law. At present, these regimes tend to rub against each other like tectonic plates with occasional earth tremors where they conflict, whether it is in the right to use force or the right to detain and prosecute. We need to work to try to produce a cohesive set of legal standards that apply across the spectrum of violence, not least so that our long suffering service personnel can know exactly where they stand. The soldier, sailor, marine or airman who is faced with the real life problems that we have been arguing over this week deserves nothing less.