When Does the Combatant’s Privilege Apply?

by Jens David Ohlin

Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing consistent with jus in bello. How does this transformation happen? However it happens, it is a powerful legal mechanism, and one whose exact contours demand definition and clarity.

The privilege has recently taken center stage in debates about targeted killing, and it featured prominently in the background of the debate over the killing of U.S. citizen Anwar al-Awlaki, and the associated drone memo drafted by the Justice Department’s Office of Legal Counsel. In particular, that memo examined the foreign murder statute and concluded that the statute incorporated the standard homicide justifications, including the public authority justification, which arguably includes acts of privileged combatancy consistent with the laws of war.  At issue here is whether CIA officers—who do not wear uniforms or carry arms openly—are eligible for the privilege of combatancy.

For some, the entire discussion of the privilege of combatancy is misplaced because the privilege only applies in international armed conflicts (IAC), and never in non-international armed conflicts (NIAC). Under this well-known view, the concept of “combatant” is an element of the legal structure of IAC, and has no place in NIAC, which includes government forces and rebels.  Allegedly, to talk of privileged or unprivileged combatants in NIAC is to make a category mistake.

In a new draft article I reject this orthodox position, and I conclude that in some situations the privilege of combatancy might apply in NIAC.  In particular, the 19th Century view of the subject was far more complex; scholars believed that NIACs that shared the functional characteristics of international conflicts should be treated in the same manner.  I argue that this sophisticated view carried over into the 20th Century and was preserved in Common Article 3 of the Geneva Convention, though it got misplaced in overly simplistic textbook definitions of the privilege of combatancy.

What about the right of the government to prosecute rebels in a NIAC?  If the privilege applies, such prosecutions would arguably be illegitimate. First, I argue that 19th Century scholars concluded that both sides in such conflicts were moral and legal equivalents, and therefore prosecutions during the war were inadvisable or even impermissible. However, at the conclusion of the conflict, a victorious government was permitted to prosecute defeated rebels for their decision to take up arms against their government. However, the best reading of this rationale is that prosecutions for treason were appropriate because rebels had violated a duty of loyalty to their own government, but prosecutions for murder were inappropriate because they suggested that rebels were not professional soldiers.  What was criminal about a rebel was his or her decision to violate a duty of loyalty to the sovereign.

This suggests to me that the literature has over-simplified the relevant law regarding NIAC and the privilege of combatancy. The two concepts are not mutually exclusive. Therefore, it makes sense to ask whether government forces in the armed conflict against al-Qaeda are privileged or not.  Terrorists in general don’t qualify for the privilege because they don’t wear uniforms or carry their arms openly, but in theory one could imagine a non-state actor that meets the functional requirements of belligerency.  Whether government personnel qualify for the privilege is another question entirely.

The standard answer is that CIA personnel involved in drone strikes are not eligible for the privilege because they don’t wear uniforms or carry arms openly – I think this is absolutely correct.  However, I also think there has been insufficient attention paid to uniformed soldiers deployed during covert actions under Title 10. As most readers of OJ know, covert action isn’t simply the purview of the CIA anymore. Military deployments by JSOC (Joint Special Operations Command) remain officially unacknowledged for various complex reasons.  In some case the territorial government is unwilling to acknowledge U.S. military presence on their territory and therefore conditions their consent on the covert nature of U.S. conduct. In other cases, a state may wish to proceed covertly, even with uniformed military troops, because they believe their actions might violate jus ad bellum.

I believe that these covert deployments of uniformed military personnel are deeply problematic from the perspective of the privilege of combatancy. Despite what some others have written regarding the Geneva Conventions, I believe that by custom even regular armed forces are required under the law of war to meet the standard criteria for belligerency: a responsible command, uniform or emblem, carrying of open arms, respect for customs of warfare. This point is almost definitional.  These criteria define what it means to be a regular armed force, since almost all armies in the world fulfill these requirements. The point of the Geneva Convention was to extend privileged belligerency to other non-standard militias that are functional equivalents to regular armed forces. This doesn’t mean that regular armed forces are exempt from those requirements; it simply means that regular armed forces are assumed to meet the criteria based on universal custom. It would be very odd to say that a fighting group that meets none of the criteria would be entitled to the privilege just because they are called a regular army.

I make two related arguments in my Article. First, the privilege is collective in nature and attaches to a collective unit that meets the functional requirements of belligerency—the group as a whole must carry arms openly, wearing a fixed emblem or uniform, etc. There is no such thing as a purely individual privileged soldier. In short, the privilege of combatancy is a collective privilege that the political entity asserts on behalf of the individual soldier – a process that is logically impossible if the state denies that it used force in the first place. In order to assert the privilege of combatancy, a state must always acknowledge that the forces were operating on its behalf – precisely what covert action denies.

Second, I’m not sure that covert action is consistent with the requirement of carrying arms openly. Generally, the commentaries discuss that requirement in the context of rifles and grenades and the phrase is given a physical description. I think it requires a more conceptual understanding. Carrying arms openly is related to the requirements of distinction, which means more than just separating civilians from combatants. It also requires separating friendly forces from enemy combatants – a process which is totally obscured when a state refuses to acknowledge the use of force.  I therefore question whether a covert deployment is a form of “open” warfare consistent with the laws of war and the privilege of combatancy.  If this is correct, then for the privilege it doesn’t matter whether drones are deployed by CIA or uniformed personnel – both are unprivileged insofar as the deployment remains unacknowledged.

This departs significantly from the traditional analysis of covert action, and suggests to me that we need more research into how basic principles of jus in bello apply in the covert context.

http://opiniojuris.org/2014/08/01/combatants-privilege-apply/

11 Responses

  1. The first definition in armed conflict is that of a “military objective”. The primary purpose of IHL is to distinguish not who may participate in armed conflict, but who may be the target. Members of the regular armed forces of an enemy country are automatically legitimate targets of lethal force, and in the case of al-Awlaki, so are members of armed units of even a non-state party to a NIAC if they are engaged in “continuous combat function”. Civilians who directly participate in hostilities may be targeted, but not other civilians.

    Direct intentional targeting of civilians by a military force is an international crime that anyone may punish.

    An attack on a military objective, however, is not an international crime. If the attacker is a privileged belligerent, then it cannot be a crime in any legal system. Otherwise, when a military objective is attacked by an unprivileged person, then it is an optional crime. You are free to prosecute it as a crime, or not. Generally you prosecute those who do it to your guys and you don’t prosecute your guys who do it to the enemy. There is no objective universal criminal definition here, and no requirement to be consistent.

    Thus during WWII, the Germans prosecuted members of the French Resistance, OSS, and SOE agents who fell into their hands, and the US prosecuted German saboteurs who fell into our hands while we sent OSS agents into Germany to do the same thing. Therefore, a CIA drone pilot who kills a military objective is not a criminal in international law, and need not be a criminal in US law, but may be prosecuted by AQAP or Yemeni courts without violating international law because he lacked privilege when he acted.

    The “drone memo” seems to be about whether specific language in a US statute prohibits a government agent acting under lawful orders from killing an enemy military objective who happens to be an American citizen. It is suggested that whether the agent is privileged or not matters, but privilege protects the combatant from prosecution by the enemy and has never been relevant to purely domestic law. If an enemy soldier parachutes into the US as part of a military attack we are not going to prosecute a cop or even an ordinary citizen who shoots him, although neither has privilege.

  2. It will be interesting to see what you classify as a 19th Century NIAC, since the phrase was not known during the 19th Century and a “belligrency” like to U.S. Civil War could take place within a state (the U.S.) and the Lieber Code notes that a soon as one took the soldier’s oath (i.e., became a member of the regular armed forces of the U.S. or the “belligerent” CSA) one had the immunity of what we call a cambatant’s privilege or combatant immunity. Ever since, the test under CIL has been membership (not carrying arms openly or wearing a uniform).
    CIA personell are rarely also members of the regular armed forces of the U.S. and, therefore, in an IAC will not have combatant status or combatant immunity.
    However, the seem to have immunity under the law of self-defense for lawful seld-defense targetings (as noted in prior articles)

  3. The most important real world question about combatant privilege applies to the members of the Taliban army facing off against the Northern Alliance on 9/11. They were engaged in a fairly standard infantry battle in which both sides obeyed mostly Afghan tribal rules in an internal civil war in which neither side wore uniforms. They were unaware that the crackpot Bin Laden had decided to attack the US. All of a sudden they found themselves at war not just with the US but with the entire NATO alliance.

    You will discover that the most urgent military shipment that the US made to its allies in the next few weeks was not guns or ammunition or any other weapons. The US shipped tens of thousands of uniforms so the Northern Alliance could dress as required by Western international law. The Taliban army had no such help.

    Then even though the army was in Afghanistan and had never moved across any boarder and had no opportunity to change clothes, the US argued that because we had decided to go to war with it and it was not dressed properly according to Western standards, the individual soldiers in the army lacked combatant privilege and did not have to be treated as POWs under the Third Geneva convention.

    Was this correct? Was the army entitled to protection as the regular armed forces of Afghanistan in its own country even though it did not wear uniforms? Alternately, could it have been privileged under the levee en mass exception? If a Taliban soldier was captured by someone and then sold to the US in exchange for a bounty, does it matter what he was wearing at a time when the US was unable to even see him and therefore could not have been confused by his clothing?

    Then how does this relate to the CIA pilots, who we only assume were not wearing a uniform. Yes, they could fly the drones in their underwear, but they could just as easily wear the full dress uniform of a French Field Marshall. If you couldn’t see it, how can it be important.

  4. Howard: I wrote about combatant status re: members of the regular armed forces of the Taliban and immunity in the Yale J. Int’l Law many years ago. I know that some members of the U.S. military have come to recognize that it is dangerous for U.S. military personnel to have any other criterion for combatant status than membership (which is the criterion under CIL — see the Yale J. article and Telford Taylor’s writing addressed therein)

  5. Jordan, if the standard is membership alone, then Quirin and his co-defendants should have been privileged belligerents (which they weren’t). They were members of the armed forces.

  6. Jens: what the S.Ct. focused on was the war crime of engaging in hostilities out of uniform. Even a combatant with combatant immunity for lawful acts of war can be prosecuted for a war crime. I admit that some of the languge in Quirin is at least confusing, but, yes, under the laws of war mere membership has been the test. The same for a slightly different issue: pow status (e.g., under GPW, art. 4(A)(1) and (3)). Please see the Yale J. Int’l L. article and our Int’l Crim. Law casebook, chpt. on the laws of war, re: Quirin.

  7. The Qurin offense is passing through lines without uniform. That is, the Qurin defendents took off their uniforms and in civilian clothes pretending to be civilians they passed through US lines of defense and moved around in our unprotected rear areas. This is an offense against the laws of war that renders them unlawful belligerents and strips them of their combatant immunity. Such people are normally called military “spies”, but they have nothing to do with civilian spies like the CIA or James Bond. I would not call this a “crime”, however, because if a military spy passes back through lines of defense and rejoins his army, then he is home free and cannot be prosecuted for his prior offense of spying. There is no real “crime” that is cancelled out this way. Also, while superior officers are guilty if they order someone to commit a real “war crime”, the commander of a spy is never guilty of anything.

    We don’t go naming grade schools after someone judged to be a “war criminal”, but dozens of schools are named after Nathan Hale.

    Behind enemy lines, the spy can be prosecuted for civilian crimes as the civilian he pretends to be, yet at the same time he can be prosecuted for military offenses as the enemy solider he actually is. So although he cannot be charged with being a spy after he returns to his army, the spy is still liable for any unpaid parking tickets.

    The term “unlawful combatant” was used by the previous administration to describe someone who engaged in combat without ever having combatant privilege, but it is also used in Quirin to describe someone who give up combatant privilege by acting as a military spy.

  8. Howard: I do not have the case before me but I recall that the members of the German military were on a mission to destroy things in the NY and FLA area and the war crime was re: engaging in that effort, engaging in attacks, out of uniform.

  9. the Yale J. Int’l L. article on combatant status and combatant immunity, etc. is at
    http://ssrn.com/abstract=2446681

  10. Jens, a very interesting article. Congratulations. I would like to explore the issue of combatant privilege and co-deployment of armed UAVs a bit further. What is your view if, in the context of an armed conflict:
    a. it is a USAF member operating the UAV
    b. the USAF member is wearing a typical USAF flight suit with unit badges, insignia of rank etc
    c. the UAV is ‘marked’ with the usual USAF markings
    d. the tasking is in response to CIA priorities
    e. a CIA analyst is monitoring the video feed to help confirm target identification

    Would the USAF operator enjoy the combatant’s privilege?

    thanks, Ian

  11. Ian: whatever Jens comes up with, of course (membership criterion, even soldiers wearing camouflage have combtant immunity for lawful acts of war and such appears to be general state practice and opinio juris). An interesting question remains re: the war crime of engaging in combat “out of uniform”
    We know that one of the problems posed involves CIA types operating the drones.

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