Faculty of Law
University of Ghent
Academical year 2009 – 2010
Legal
Status
and
Court
Proceedings
concerning
Unlawful
Combatants
Master’s Dissertation
‘Master of Law’
Submitted by
Katherine Jonckheere
(Student number: 20051064)
(Major: National and International Public Law)
Promoter: Prof. Dr. Marc Cogen
Commissioner: Cécile Vandewoude
ACKNOWLEDGMENTS
First of all, I would like to share some general comments. In the lonesome moments of
writing this dissertation, I have come to think about the process that brought me here. It has
been a journey filled with dedication, hard work and hurdles, but also enjoyment and nice
memories of the Ghent student life. Five wonderful, enriching years at the University of
Ghent now lay behind me and before I embark upon the next stage, some words of gratitude
are in order.
I would most like to thank my parents for their unconditional support. My mom for her
undying words of encouragement throughout my studies, and my dad for giving me the
opportunity to achieve what I want in life, and for patiently bearing with me when setbacks
arose.
In addition, I would like to thank my younger sister, Marilyn, for joining me in studying law
and as a result being in the perfect position to proofread my dissertation.
Many thanks also to the people at the Washington College of Law in Washington D.C. who
allowed me to conduct part of my research at Pence Law Library, even after the wonderful
semester I had spent there.
Furthermore, my appreciation goes out to my dear friend, Jolien, without whose computer
skills I would have been completely lost.
Finally, I would profoundly like to thank professor Marc Cogen for inspiring me through his
classes in the first year of law to write about this subject and for teaching students at Ghent
University to not be afraid to speak your mind, be critical of the world around you and to
stand up to injustice; principles I will strive to live by in my future career.
ii
TABLE
OF
CONTENTS
ACKNOWLEDGMENTS‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ II
TABLE
OF
CONTENTS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ III
LIST
OF
ACRONYMS‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐V
INTRODUCTION ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 1
I.
STRUCTURE ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 2
II.
METHODOLOGY ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 2
1
GENERAL
FRAMEWORK
OF
INTERNATIONAL
HUMANITARIAN
LAW‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 3
1.1
EVOLUTION
TO
MODERN
TREATY
LAW ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 3
1.2
THE
PRINCIPLE
TREATIES ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 6
1.2.1
Law
of
The
Hague ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 6
1.2.2
Law
of
Geneva ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 6
1.3
CUSTOMARY
IHL ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 8
2
LEGAL
STATUS
OF
UNLAWFUL
COMBATANTS‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10
2.1
CLASSIFICATION ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10
2.1.1
Principle
of
distinction‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10
2.1.2
Combatants ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 12
2.1.2.1
2.1.2.2
Lawful
combatants ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 12
Unlawful
combatants ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 15
2.1.3
A
gap
in
IHL?‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 17
2.1.4
Non‐international
armed
conflict‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 21
2.2
PROTECTIONS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 22
2.2.1
International
armed
conflict ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 22
2.2.2
Non‐international
armed
conflict‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 25
2.3
CONCLUSION‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 26
3
APPLICATION
OF
UNLAWFUL
COMBATANT
STATUS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 28
3.1
USAGES ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 28
3.1.1
Spies
and
saboteurs‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 28
3.1.2
One‐time
lawful
combatants ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 30
3.1.3
Regular
civilians,
non‐combatant
members
of
and
civilians
accompanying
the
armed
forces ‐‐‐‐‐ 31
3.1.4
Nationals
of
the
Detaining
Power ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 33
3.1.5
Guerrilla
forces
and
partisans ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 33
3.1.6
Mercenaries‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 35
3.1.7
Terrorists ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 35
3.2
CURRENT
DEFINITIONS
FOR
UNLAWFUL
COMBATANCY ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 38
3.3
CONCLUSION‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 43
4
LEGAL
FRAMEWORKS
REGARDING
UNLAWFUL
COMBATANTS
AND
TERRORISM ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 45
4.1
WARTIME:
INTERNATIONAL
HUMANITARIAN
LAW ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 45
4.1.1
Terrorism
in
IHL ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 45
4.1.2
The
military
paradigm‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 46
4.1.2.1
4.1.2.2
The
“War
on
Terror” ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 46
The
Israeli
Occupation ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 51
4.1.3
Prerequisite
of
a
state
of
armed
conflict‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 53
4.1.4
Military
Tribunals‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 58
4.2
PEACETIME:
INTERNATIONAL
HUMAN
RIGHTS
LAW
AND
CRIMINAL
LAW ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 64
4.2.1
International
Human
Rights
Law ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 64
4.2.2
The
law
enforcement
approach ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 66
4.2.3
Domestic
criminal
law ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 70
4.2.4
International
Criminal
Law ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 71
iii
4.2.4.1
4.2.4.2
International
Forums‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 71
Legal
definition
of
international
terrorism
and
the
International
Criminal
Court‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 73
4.3
CONCLUSION‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 76
5
CASE
LAW
REGARDING
UNLAWFUL
COMBATANTS
AND
TERRORISM‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 77
5.1
ISRAELI
CASE
LAW ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 77
5.1.1
The
Public
Committee
Against
Torture
in
Israel
e.a.
v.
The
Government
of
Israel ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 77
5.1.2
A
v.
State
of
Israel ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 78
5.2
AMERICAN
CASE
LAW ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 80
5.2.1
Early
developments:
Ex
parte
Milligan
and
Ex
parte
Quirin ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 80
5.2.2
The
Supreme
Court’s
“enemy
combatant”
decisions ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 81
5.2.2.1
5.2.2.2
5.2.2.3
Rumsfeld
v.
Padilla ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 81
Hamdi
v.
Rumsfeld‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 82
Rasul
v.
Bush ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 84
5.2.3.1
5.2.3.2
Combatant
Status
Review
Tribunals
and
the
Detainee
Treatment
Act ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 86
Hamdan
v.
Rumsfeld ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 87
5.2.4.1
5.2.4.2
The
Military
Commissions
Act
of
2006 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 88
Boumediene
v.
Bush ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 88
5.2.5.1
5.2.5.2
The
Military
Commissions
Act
of
2009 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 90
Al‐Bihani
v.
Obama ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 90
5.2.3
Response
to
the
“enemy
combatant”
decisions‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 86
5.2.4
Response
to
Hamdan ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 88
5.2.5
Current
state
of
affairs ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 90
5.3
INFLUENCE ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 91
CONCLUSION ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 94
BIBLIOGRAPHY ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 97
INTERNATIONAL
TREATIES ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 97
UN
RESOLUTIONS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 97
INTERNATIONAL
OFFICIAL
DOCUMENTS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 98
NATIONAL
LEGISLATION
AND
OFFICIAL
DOCUMENTS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 98
CASE
LAW ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 99
BOOKS‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 99
JOURNAL
ARTICLES ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐100
REPORTS ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐104
NEWSPAPER
ARTICLES ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐104
URL’S ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐105
CONFERENCES ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐107
iv
LIST
OF
ACRONYMS
AUMF
Authorization for the Use of Military Force
CIA
Central Intelligence Agency
CSRT
Combatant Status Review Tribunals
DTA
Detainee Treatment Act
G(i)TMO
US military navel base and detention center at Guantanamo Bay, Cuba
ICC
International Criminal Court
ICCPR
International Covenant on Civil and Political Rights
ICRC
International Committee of the Red Cross
ICTR
International Criminal Tribunal for Rwanda
ICTY
International Criminal Tribunal for the former Yugoslavia
IHL
International Humanitarian Law
IRPA
Immigration and Refugee Protection Act
KLA
Kosovo Liberation Army
MCA
Military Commissions Act
MTP
Movimiento Todos por la Patria
NGO
Non Profit Organization
TWA
Trans World Airlines
UCMJ
Uniform Code of Military Justice
UK
United Kingdom
UN
United Nations
US
United States of America
v
Introduction
“Inter arma enim silent leges.”
Marcus Tullius Cicero1
Following the military operations carried out by the United States in Afghanistan in response
to the terrorist attacks of September 11, 2001 in New York, Washington D.C. and
Pennsylvania, the legal situation of “unlawful/unprivileged combatants” was catapulted to the
top of the international agenda. Although this subject is far from new, currently a clear
demand in international humanitarian law (IHL) is emerging to establish a stable and
internationally accepted legal framework when dealing with this category of persons.
Especially over the last decade, unlawful combatants’ international status and legal
protections have been the topic of strenuous debate. Can we even say for sure that there is
such a notion as an intermediate status between civilians and lawful combatants? And if we
can, does this classification have a de jure or merely de facto character? Conflicting case law
has only reinforced the many differing views relating to unlawful combatancy and sparked a
considerable amount of criticism.
Particularly for matters involving those labeled unlawful combatants in connection with
terrorism, there is a desperate need to establish legal certainty among the confusion that
diverging interpretations of international humanitarian law have generated. Are the laws of
war applicable to counter-terrorist action? Should members of terrorist organizations like AlQaida be granted prisoner of war status? Or is there some other categorization under IHL for
these individuals? These are only the first of many pertinent questions regarding unlawful
combatants and terrorists in particular.
Perhaps the most challenging conundrum of all lies in objectively and comprehensively
evaluating the concept of unlawful combatancy, when many contemporary sources appear to
be biased by politics or a selective understanding of the laws of war. Although we do need to
touch upon some policy issues in this dissertation, we will predominantly examine our subject
from an academic juridical point of view.
1
“During
war,
the
laws
are
silent.”
1
I.
Structure
First, we will take a look at the general framework of IHL to know which sources we will
need to work with in order to dissect the subject matter thoroughly. After this, in chapter two,
we will get more into the core of the legal status of unlawful combatants by defining the
concept theoretically and discussing what protections unlawful combatants are entitled to
according to the laws of war. Then in chapter three, we will go beyond the abstractness of the
previous chapter by demonstrating how the concept has been defined concretely by state
practice and by listing the ways in which unlawful combatant status has been employed over
the years; starting with the more traditional concepts of spies and saboteurs and ending with
the most recent usage in relation to terrorist organizations. Chapters five and six will
specifically deal with this last category, first by examining the applicable frameworks in
which terrorists operate and secondly by giving an overview of how this category is handled
by contemporary national judicial systems. State practice and case law relating to terrorist
unlawful combatants will mainly revolve around the United States and Israel because these
are the two nations presently battling terrorist organizations manu militari.
II.
Methodology
Many primary sources, such as the texts of international humanitarian law treaties, the
varying national legislations and developments in case law were used in writing this
dissertation. Preparatory works, memoranda, commentaries and official statements
contributed to the understanding of the former. Due to the quickly evolving and contemporary
nature of this subject, international law articles have been of a tremendous help in keeping up
with the developments in the field. Books have also proven to be very valuable, but mostly to
get a better understanding of where the subject of unlawful combatants fits in with the laws of
war. Internet sources – such as the websites of the International Committee of the Red Cross
and the United Nations, organizations that have had a long recognized role in the
understanding and promulgation of international humanitarian law – were also consulted
regularly. Online newspaper articles then specifically added to the analysis by way of
supplementary factual information. Next to these written materials, I have also had the
privilege of attending a conference at the Washington College of Law (American University,
Washington D.C.) on the subject of military commissions practice and related case law.
2
1 General
Framework
of
International
Humanitarian
Law
“Liberty is obedience to the law which one has laid down for oneself.”
Jean-Jacques Rousseau
The laws regarding armed activities are composed of two separate frameworks, one relating to
the legality of armed activities and one stipulating the laws during the state of an armed
conflict.2 In this analysis, we will principally deal with the last mentioned ius in bello, also
referred to as the “laws of armed conflicts”, “laws of war” or “international humanitarian law
applicable in armed conflict” (IHL), yet briefly touch upon the legality issue of resorting to
the use of force embodied in ius ad bellum as well.3
Before proceeding with a substantive analysis of our prime subject, which is unlawful
combatancy, let us first take a look at the sources we will require later on.
1.1 Evolution
to
modern
treaty
law
Our present-day normative framework of IHL did not emerge overnight. Centuries before the
first multilateral treaties were adopted and codification efforts were made, great minds bowed
their heads over the fundamental principles that should govern the law of war. The Italian
jurist Alberico Gentili was one of the first to write extensively on the subject, most
importantly in “De Jure Belli Libri Tres”.4 However, his work would soon be overshadowed
by the writings of another great 16th century jurist, Hugo Grotius, only to be revived late 19th
century. Grotius, owing much to the work of Gentili, quickly gained international admiration
for his opus “De Jure Belli ac Pacis”, also published in three books, in 1625. His theories
embody the fundamental distinction between ius ad bellum and in bello since besides making
contributions to the “just war” theory, which requires the engagement in any war to have a
2
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
467.
A.
ROBERTS,
“The
Laws
of
War
in
the
War
on
Terror”,
in:
Terrorism
and
the
Military
International
Legal
Implications,
edited
by
W.
P.
HEERE,
The
Hague,
T.M.C.
Asser
Press,
2003,
65‐66.
4
“Three
Books
on
the
Law
of
War”
(1589).
3
3
just cause, Grotius’ work also contains the foundations concerning the conduct of hostilities to
which all parties to a conflict should be bound. We can even directly connect his work to our
subject, since as early as the 17th century Grotius saw the problem posed by marauders and
pirates.5 These individuals, who did not represent any state and operated in a kind of grey
transnational area, are very much reminiscent of the threat we face today at the hands of
international terrorists. Grotius designated such non-state actors as “hosti humani generis”:
outlaws and enemies of all humankind.6
A century later, in the midst of the Enlightenment period, the influential philosopher JeanJacques Rousseau further established one of the most basic governing principles of war, the
principle of humanity. It defined wars as armed hostilities principally between states, in which
individuals are only enemies for as long as they fight each other as soldiers.7 When a soldier
surrenders, it is no longer permitted to take his life.8
The very first codification of existing laws and customs of war was achieved in 1863 by a
German jurist. Francis Lieber moved to the United States in his twenties and became a
professor of Columbia College in New York later in life, when he wrote the “Lieber
Instructions” for Union soldiers fighting in the American Civil War.9 Also referred to as the
“Lieber Code”, the work corresponded greatly to the customs of war at that time.10 That is
why this first codification strongly influenced subsequent efforts to lay down the laws of war,
such as the Brussels Conference of 1874 and the Conventions of 1899 and 1907 at The
Hague.
In 1864, the very first Geneva Convention was adopted pursuant to a Diplomatic Conference
at the initiative of the International Committee of the Red Cross (ICRC). It counted ten
articles on the amelioration of the conditions of the wounded in war.11 Later replaced by the
5
P.
J.
RICHARDS,
“Hugo
Grotius,
Hosti
Humani
Generis,
and
the
natural
law
in
time
of
war”,
Liberty
University
Law
Review,
2
Liberty
U.
L.
Rev.
881
(Spring
2008).
6
Ibid.
7
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
473.
8
Ibid.
9
Ibid.,
474.
10
D.
SCHINDLER
and
J.
T.
TOMAN,
The
Laws
of
Armed
Conflicts,
Dordrecht,
Martinus
Nijhoff
Publishers,
1988,
20.
11
Ibid.,
280.
4
Geneva Conventions of 1906, 1929 and 1949, this Convention is no longer in force. However,
these succeeding Conventions maintained the basic principles laid down in 1864.12
Four years later, an international conference took place on the use of explosive rifle bullets.13
The pursuant Declaration of Saint Petersburg further established some basic ideas of IHL
such as the principle of distinction, the notion of military necessity and the prohibition to
cause unnecessary suffering.14 This last rule was even codified directly into Article 23(e) of
the Hague Regulations on land warfare, illustrating the Declaration’s influence on modern
treaty law. 15
At the initiative of the Russian government six years after the adoption of the Declaration of
Saint Petersburg, the Brussels Conference of 1874 adopted the draft of an “International
Declaration on the Rules and Usages of War”.16 Delegates of 15 European states attended the
Conference and although the draft was never ratified, it was picked up by the “Institute of
International Law” which worked on it further.17 These efforts proved successful seeing as
they led to the adoption of the “Manual of the Laws and Customs of War” at Oxford in
1880.18 Both this Oxford Manual and the Brussels Declaration were used for the creation of
the 1899 and 1907 Hague Conventions on land warfare and the annexed Regulations.19
The basic multilateral treaties of IHL in force today, which we will resort to when analyzing
our subject, originated directly from the aforementioned theorists and ad hoc ventures
undertaken in the late 19th century.
12
Ibid.,
281.
F.
KALSHOVEN
and
L.
ZEGVELD,
Constraints
on
the
waging
of
war,
Introduction
available
at
http://www.elib.at/index.php/International_Humanitarian_Law_‐_Introduction_‐_ICRC_‐
_Frits_Kalshoven_‐_Liesbeth_Zegveld,
last
visited
August,
2010.
14
F.
BUGNION,
“Droit
de
Genève
et
droit
de
La
Haye”,
Int’l
Rev.
Red
Cross
2001,
Vol.
83,
No.
844,
901‐922.
15
D.
SCHINDLER
and
J.
T.
TOMAN,
The
Laws
of
Armed
Conflicts,
Dordrecht,
Martinus
Nijhoff
Publishers,
1988,
102.
16
Ibid.,
22.
17
Ibid.
18
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
474.
19
Ibid.,
48.
13
5
1.2 The
principle
treaties
1.2.1 Law of The Hague
First in 1899 and again in 1907, two great conferences concerning the conduct of hostilities
were held at The Hague. These conferences resulted in the adoption of twenty Conventions
and Declarations altogether.20 Similar to the postdating Geneva Conventions of 1949, these
Conventions also carry the protection of victims of war at heart, but more so from the
perspective of protecting combatants and civilians.21 The Hague Conventions restrict the
permissible means of combat and military operations on land, sea and even in the air, then
only possible through the use of air balloons.22 The annex to the Fourth Hague Convention of
1907 concerning warfare on land still counts today as our most rudimentary document
regulating the conduct of hostilities due to its evolved customary nature.23 It dictates the
conditions that armed forces need to fulfill to qualify as (lawful) combatants, entitled to
prisoner of war status upon capture.24 It also prohibits indiscriminate attacks and makes the
fundamental distinction between combatants and civilians.25
1.2.2 Law of Geneva
Where the Hague Regulations still referred to the First Geneva Convention of 1864 on the
subject of the wounded and sick, the Law of Geneva mainly consists of rules that protect
20
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
10.
21
F.
BUGNION,
“Droit
de
Genève
et
droit
de
La
Haye”,
Int’l
Rev.
Red
Cross
2001,
Vol.
83,
No.
844,
901‐922.
22
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
9.
23
Convention
(IV)
Respecting
the
Laws
and
Customs
of
War
on
Land
and
its
annex:
Regulations
concerning
the
Laws
and
Customs
of
War
on
Land.
The
Hague,
18
October
1907.
24
Hague
Regulations,
Art.
1‐3.
25
Ibid.,
Art.
22‐23.
6
victims of war in enemy hands.26 The ICRC has played an unequivocal role in its
development and implementation.27
The four Geneva conventions of August 1949, also referred to as the “Red Cross
Conventions”, form the principal basis of contemporary laws of armed conflicts.28 They
primarily apply to situations of international armed conflict because Article 2 common to the
four Geneva Conventions states that “the present Convention shall apply to all cases of
declared war or of any other armed conflict which may arise between two or more of the
High Contracting Parties…”29 Seeing as the ICRC had hoped for the Geneva Conventions to
apply to non-international armed conflicts as well, the Diplomatic Conference settled on a sort
of miniature treaty with Common Article 3 as a compromise, applying “in the case of armed
conflict not of an international character occurring in the territory of one of the High
Contracting Parties…”.30 This article lists the minimum requirements to which each Party to
that type of conflicts is bound.
The First and Second Geneva Conventions strictly relate to the wounded and sick during war
on land and at sea.31 The Third applies to prisoners of war, replacing the Prisoner of War
Convention of 1929.32 The Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War – also referred to as the Civilian Convention – was adopted largely
out of consideration for the suffering to which civilians were subjected during World War
II.33 Before this Convention, protection towards civilians was based on a too thin reed of
26
Ibid.,
Art.
21.
F.
BUGNION,
“Droit
de
Genève
et
droit
de
La
Haye”,
Int’l
Rev.
Red
Cross
2001,
Vol.
83,
No.
844,
901‐922.
28
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
10.
29
Art.
2
Common
to
the
four
Geneva
Conventions,
12
August
1949.
30
Art.
3
Common
to
the
four
Geneva
Conventions,
12
August
1949.
31
Convention
(I)
for
the
Amelioration
of
the
Condition
of
the
Wounded
and
Sick
in
Armed
Forces
in
the
Field.
Geneva,
12
August
1949;
Convention
(II)
for
the
Amelioration
of
the
Condition
of
Wounded,
Sick
and
Shipwrecked
Members
of
Armed
Forces
at
Sea.
Geneva,
12
August
1949.
32
Convention
(III)
relative
to
the
Treatment
of
Prisoners
of
War.
Geneva,
12
August
1949.
(hereafter
referred
to
as
“Third
Geneva
Convention”)
33
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
27
7
international law principles and scattered provisions of the Hague Regulations.34 The Fourth
Convention mainly deals with the status and treatment of protected persons, including in
occupied territory.35
The Law of The Hague and the Law of Geneva were tied together with the adoption of
Additional Protocols I and II to the Geneva Conventions of 1949 on June 8th, 1977. These two
Protocols, the first concerning international armed conflict and the second non-international,
contain converging provisions regarding the protection of victims of war and the conduct of
hostilities.36
To break down the concept of unlawful combatancy properly, we will need to study both the
Law of The Hague and Law of Geneva. These two domains form the cornerstones of modern
international humanitarian law.
1.3 Customary
IHL
As early as 1946, the International Military Tribunal in Nuremberg held provisions of the
Fourth Hague Convention to be customary international law.37 In recent years, international
courts have increasingly found modern treaty rules of IHL to possess a customary character.38
This development is crucial to the understanding of IHL, because rules of international
customary law are binding on all states.
Although the Four Geneva Conventions of 1949 have been universally ratified and customary
rules therefore do not appear to carry much weight with these, the same cannot be said for
34
Ibid.
Convention
(IV)
relative
to
the
Protection
of
Civilian
Persons
in
Time
of
War.
Geneva,
12
August
1949.
(hereafter
referred
to
as
“Fourth
Geneva
Convention”)
36
F.
BUGNION,
“Droit
de
Genève
et
droit
de
La
Haye”,
Int’l
Rev.
Red
Cross
2001,
Vol.
83,
No.
844,
901‐922.
37
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
10.
38
F.
KALSHOVEN
and
L.
ZEGVELD,
Constraints
on
the
waging
of
war,
Introduction
available
at
http://www.elib.at/index.php/International_Humanitarian_Law_‐_Introduction_‐_ICRC_‐
_Frits_Kalshoven_‐_Liesbeth_Zegveld,
last
visited
August,
2010.
35
8
other treaties of IHL.39 For example, the two Additional Protocols to the Geneva Conventions
of 1949 have not been ratified by either the United States or Israel, countries that have both
been actively engaged in armed conflicts in the past decade or longer.40 Yet even if a state is
not a Party to a treaty, customary law is binding upon that state.41 In addition, customary IHL
complements the existing framework for non-international armed conflict, which consists of
far fewer rules than international armed conflict.42
Additional Protocol I affirmed the legal value of customary IHL by incorporating the Martens
clause, which was derived from the centuries before developed principle of humanity, in its
Article 1. Fyodor Martens was the president of the 1899 Conference at The Hague and drew
attention to the situation when conflicts are not covered by IHL.43 The article states that in
those cases “civilians and combatants remain under the protection and authority of the
principles of international law derived from established custom, from the principles of
humanity and from the dictates of public conscience”.44
Interestingly, non-state parties such as armed opposition groups are also considered to be
constrained by customary rules of IHL, yet only in the event of a non-international armed
conflict.45 That being the case, customary rules of IHL will also inevitably play an important
role in the present unconventional context of combating the international terrorist threat
militarily.
39
J.‐M.
HENCKAERTS,
“Study
on
Customary
International
Humanitarian
Law”,
American
Society
of
International
Law
Proceedings,
99
Am.
Soc’y
Int’l
L.
Proc.
423
(2005).
40
State
Parties
to
the
Following
International
Humanitarian
Law
and
Other
Related
Treaties
as
of
7
July
2010,
ICRC,
http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treati
es.pdf.
41
J.‐M.
HENCKAERTS,
“Study
on
Customary
International
Humanitarian
Law”,
American
Society
of
International
Law
Proceedings,
99
Am.
Soc’y
Int’l
L.
Proc.
423
(2005).
42
Ibid.
43
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
475.
44
Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
relating
to
the
Protection
of
Victims
of
International
Armed
Conflicts
(Protocol
I),
8
June
1977.
45
Ibid.
9
2 Legal
Status
of
Unlawful
Combatants
“The soldier who has slain a man in obedience to the authority under which he is lawfully
commissioned, is not accused of murder by any law of his state; nay… But if he has been
acting on his own authority, and at his own impulse, he has in this case incurred the crime of
shedding human blood.”
Aurelius Augustine46
2.1 Classification
When classifying individuals involved in an armed conflict, the best place to start is always
with the four Geneva Conventions of 1949. Together with the 1977 Additional Protocols to
the 1949 Conventions, these treaties shape the core of IHL. Although a number of countries
have not ratified the Protocols up until this day, broad legal consensus has been formed
regarding to the binding nature of a part of their provisions on parties as well as non-parties as
customary international law.47 Of particular importance to our subject are the Third Geneva
Convention, which applies to prisoners of war, and the Fourth, which affords protection to
civilians.
2.1.1 Principle of distinction
One of the most fundamental principles of IHL concerns making the distinction between
civilians, who are protected from the dangers of war, and combatants, who fight on behalf of
parties to armed conflicts.48 Civilians are defined by the Fourth Geneva Convention as “those
who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict
46
A.
AUGUSTINE
(354‐430),
The
City
of
God,
in:
The
Works
of
Aurelius
Augustine,
Book
I,
ch.
26,
at
37
(M.
Dods
trans.
1462).
47
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
477.
48
N.
MELZEN,
“Interpretative
Guidance
on
the
Notion
of
Direct
Participation
in
Hostilities
Under
International
Humanitarian
Law”,
International
Review
of
the
Red
Cross,
Vol.
90
No.
872
(Dec.
2008),
retrieved
at:
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review‐
872‐p991/$File/irrc‐872‐reports‐documents.pdf,
last
visited
April,
2010.
10
or occupation, in the hand of a Party to the conflict or Occupying Power of which they are
not nationals”.49 This definition almost comes down to every single person not protected as a
prisoner of war. Mainly covered by the Fourth Geneva Convention, civilians enjoy protection
from the perils of war and cannot become the object of attack.50 Additional Protocol I
correspondingly states that civilians “shall enjoy general protection against dangers arising
from military operations”.51 However, as it is also widely accepted under customary IHL, this
immunity from direct attack disappears “for such time as they take a direct part in
hostilities”.52 Then civilians lose their immunity and do become lawful targets for attack.53
However, this does not mean that a civilian is permanently stripped of its protected status.54
The second portion of the distinction is what mostly concerns our analysis. The notion of an
“unlawful combatant” is based on the premise of splitting up the general combatant category,
consequently creating a third. This third category implies the acceptance of a grey zone
between civilians and lawful combatants. Seeing as the mere existence of the unlawful
combatant category could conceivably undermine the fundamental principle of distinction,
there is a lot of ambivalence surrounding the de facto rather than de jure character of the
term.55 Opponents of a third category instead prefer to make a second distinction between
civilians who participate in hostilities, and those who do not.56 However, even though the
term “unlawful combatant” does not show up in either the Hague or Geneva Conventions, it
signifies a much larger categorization than just civilians who participate in hostilities.
49
Art.
4
of
Convention
(IV)
relative
to
the
Protection
of
Civilian
Persons
in
Time
of
War.
Geneva,
12
August
1949.
50
Convention
(IV)
relative
to
the
Protection
of
Civilian
Persons
in
Time
of
War
(Geneva,
12
August
1949);,Additional
Protocol
I,
Art.
51(3).
51
Additional
Protocol
I,
Art.
51(1).
52
A.
M.
DANNER,
“Defining
unlawful
enemy
combatants:
a
centripetal
story”,
Texas
International
Law
Journal,
43
Tex.
Int’l
L.J.
1
(Fall,
2007).
53
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
27.
54
V.
BILKOVA,
“Talking
about
unlawful
combatants?
A
short
and
concise
assessment
of
a
Long
and
Multifaceted
Debate”,
Central
European
Journal
of
International
and
Security
Studies,
CEJISS,
retrieved
at:
http://www.cejiss.org/assets/pdf/articles/vol3‐2/bilkova‐
talking_about_unlawful_combatants.pdf,
last
visited
July
21,
2010.
55
Ibid.
56
N.
MELZEN,
“Interpretative
Guidance
on
the
Notion
of
Direct
Participation
in
Hostilities
Under
International
Humanitarian
Law”,
International
Review
of
the
Red
Cross,
Vol.
90
No.
872
(Dec.
2008),
retrieved
at:
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review‐
872‐p991/$File/irrc‐872‐reports‐documents.pdf,
last
visited
April,
2010.
11
2.1.2 Combatants
Usually the term “combatant” refers to lawful combatancy. But more generally, combatants
can be defined as persons who directly participate in hostilities.57 Let us first continue with
the supposition that combatants are either lawful or unlawful.
2.1.2.1 Lawful
combatants
Lawful combatants are members of the armed forces of a Party to a conflict. Armed forces
consist of “all organized armed forces, groups and units which are under a command
responsible to that Party for the conduct or its subordinates, even if that Party is represented
by a government or an authority not recognized by an adverse Party”.58 Contrary to unlawful
combatants, lawful combatants enjoy the combatant’s privilege: the right to participate in
hostilities and immunity from prosecution under municipal laws for acts committed in the line
of duty.59 This fundamental rule is deeply rooted in customary IHL.60 It means that lawful
combatants cannot be prosecuted for lawful acts of war carried out in the course of an armed
conflict that might otherwise be considered common crimes under municipal law, such as the
targeting of the enemy’s armed forces.61 Lawful combatants will also receive prisoner of war
status upon capture in accordance with the Third Geneva Convention. Being accorded with
prisoner of war status essentially denotes that the combatant will be detained until the end of
57
R.
K.,
GOLDMAN
and
B.
D.,
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
58
Protocol
I,
Art.
43.
59
W.
SOLF,
“The
Status
of
Combatants
in
Non‐International
Armed
Conflicts
Under
Domestic
Law
and
Transnational
Practice”,
American
University
Law
Review,
33
Am.
U.
L.
Rev.
53,
59
(1983);
R.
K.,
GOLDMAN
and
B.
D.,
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
60
W.
SOLF
and
E.
R.
CUMMINGS,
“Survey
of
penal
sanctions
under
Protocol
I
to
the
Geneva
Conventions
of
August
12,
1949”,
Case
Western
Reserve
Journal
of
International
Law,
9
Case
W.
Res.
J.
Int’l
L.
205
(1977).
61
Ibid.
12
hostilities in order to prevent him from returning to the battlefield.62 However, it is important
to understand that they can still be personally prosecuted for committing violations of the IHL
treaties or customary law, including war crimes.63 However, lawful combatants keep the
safeguards of procedure and treatment concerning trial and punishment against prisoners of
war.64 Article 87 of the Third Geneva Convention states in this respect that prisoners of war
“may not be sentenced by the military authorities and courts of the Detaining Power to any
penalties except those provided for in respect of members of the armed forces of the said
Power who have committed the same acts”, meaning that a detaining country cannot try
prisoners of war for legitimate acts of war since it would not do so either for its own
soldiers.65
The Hague Regulations of 1907 in conjunction with the Third Geneva Convention elected
several categories whose members would be considered privileged combatants: the armed
forces of a Party to the conflict (together with those civilians accompanying the armed forces
and the crews of merchant ships and civil aircraft), and independent militias and volunteer
corps which do not form a part of the regular armed forces of a Party.66 According to the
Third Geneva Convention, prisoner of war protections apply to members of the armed forces
of a Party to a conflict without further conditions because it seemed evident to the drafters
that such regular forces operate under a command structure, wear uniforms, and so on.67
Prisoner of war protections apply also to members of militias or volunteer corps – sometimes
referred to as “irregular” forces, not to be confused with “unlawful” – if they fulfill the six
additional requirements described in Article 4 of the Third Geneva Convention. First of all,
62
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
29.
63
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring
2005).
64
M.
BOTHE,
K.
PARTSCH
&
W.
SOLF,
New
rules
for
victims
of
armed
conflict:
Commentary
on
the
two
protocols
additional
to
the
Geneva
Conventions
of
1949,
Boston,
Kluwer,
1982,
256.
65
Third
Geneva
Convention
(1949),
art.
87;
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
66
M.
BOTHE,
K.
PARTSCH
&
W.
SOLF,
New
rules
for
victims
of
armed
conflict:
Commentary
on
the
two
protocols
additional
to
the
Geneva
Conventions
of
1949,
Boston,
Kluwer,
1982,
251.
67
A.
ROSAS,
The
legal
status
of
prisoners
of
war:
A
study
in
international
humanitarian
law
applicable
in
armed
conflict,
Helsinki,
Suomalainen
tiedeakatemia,
1976,
328.
13
they must belong to an organized group and that group must belong to a Party of the
conflict.68 This last condition requires at least a factual and material relationship between the
group and a Party to the conflict.69 For example, an organized armed group not acting on
behalf of a state will not qualify. Next to these first two conditions, they must be
“commanded by a person responsible for his subordinates”, wear “a fixed distinctive sign”,
“carry their arms openly” and conduct “their operations in accordance with the laws and
customs of war”.70 Articles 43 and 44 of Additional Protocol I to the 1949 Geneva
Conventions developed article 4 of the Third Geneva Convention further. Article 1 of the
Hague Regulations also states that “the laws, rights and duties of war” apply not only to
armies but also to the militia and volunteer groups which fulfill criteria virtually identical to
the last four of article 4 of the Third Geneva Convention.71 If participants in an armed conflict
do not meet these criteria, they are by consequence unlawful combatants.72 Accordingly,
Additional Protocol I also refuses to grant prisoner of war status to persons who unlawfully
engage in hostilities.73 However, if there is any doubt as to whether a person, who has fallen
into the hands of the enemy, is entitled to prisoner of war status, that person will be treated as
a prisoner of war until decided otherwise by a competent tribunal.74
68
Article
43
of
Additional
Protocol
I
clarifies
this
criterion
as
to
‘being
under
a
command
responsible
to
a
Party’
or
irregular
troops.
69
N.
MELZEN,
“Interpretative
Guidance
on
the
Notion
of
Direct
Participation
in
Hostilities
Under
International
Humanitarian
Law”,
International
Review
of
the
Red
Cross,
Vol.
90
No.
872
(Dec.
2008),
retrieved
at:
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review‐
872‐p991/$File/irrc‐872‐reports‐documents.pdf,
last
visited
April,
2010.
70
Third
Geneva
Convention
(1949),
art.
4(A)(2).
71
Convention
(IV)
Respecting
the
Laws
and
Customs
of
War
on
Land.
The
Hague,
18
October
1907.
72
K.
WATKIN,
“Warriors
without
rights?
Combatants,
unprivileged
belligerents,
and
the
struggle
over
legitimacy”,
HPCR
Occasional
Paper
Series,
Program
on
Humanitarian
Policy
and
Conflict
Research,
Harvard
University
(2005),
retrieved
at:
http://www.hpcr.org/pdfs/OccasionalPaper2.pdf,
last
visited
July
23,
2010;
W.
SOLF
and
E.
R.
CUMMINGS,
“Survey
of
penal
sanctions
under
Protocol
I
to
the
Geneva
Conventions
of
August
12,
1949”,
Case
Western
Reserve
Journal
of
International
Law,
9
Case
W.
Res.
J.
Int’l
L.
205
(1977).
73
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC,
21
July
2005,
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism‐ihl‐210705?opendocument,
last
visited
June
11,
2010.
74
Third
Geneva
Convention
(1949),
art.
5.
14
2.1.2.2 Unlawful
combatants
Unlawful combatants are fighters or terrorists who are not members of the armed forces of a
Party to a conflict; yet take direct part in hostilities without having the right to do so.75 They
can be targeted and are subject to detention, just like lawful combatants. However, unlawful
combatants do not enjoy the lawful combatant’s privileges, and on that account cannot be
entitled to prisoner of war status.76 Instead, they can be prosecuted for their mere participation
in hostilities and punished by military tribunals, even if their acts complied with the laws of
war.77 The Commentary of Bothe, Partsch and Wolf on the two Additional Protocols to the
Geneva Conventions of 1949 reads:
“Civilians who participate directly in hostilities, as well as spies and members of the
armed forces who forfeit their combatant status, do not enjoy that privilege, and may
be tried for direct participation in hostilities as well as for any crime under municipal
law which they might have committed.”78
Unlike lawful combatants, unlawful belligerents do not have to be repatriated after the
cessation of hostilities. Instead they are subject to trial and punishment at the hands of the
Detaining Power. Their punishment will principally be a matter of domestic law or practice,
because unlawful combatancy in itself is generally not considered a violation of international
law.79 Only IHL does not extend protection to combatants who do not fulfill the requirements
75
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
491.
Ibid.;
K.
DORMANN,
“The
Legal
Situation
of
“Unlawful/Unprivileged
Combatants”,
International
Review
of
the
Red
Cross,
85
Int’l
Rev.
Red
Cross
45
(2003);
C.
A.
BRADLEY,
“The
United
States,
Israel
&
Unlawful
Combatants”,
Green
Bag,
12
Green
Bag,
2d
397
(Summer
2009).
77
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
30;
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
78
M.
BOTHE,
K.
PARTSCH
&
W.
SOLF,
New
rules
for
victims
of
armed
conflict:
Commentary
on
the
two
protocols
additional
to
the
Geneva
Conventions
of
1949,
Boston,
Kluwer,
1982,
243.
79
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951);
M.
McDOUGAL
&
F.
FELICIANO,
The
international
law
of
war:
transnational
coercion
and
world
public
order,
New
Haven,
New
Haven
Press,
1994,
554‐555.
76
15
for lawful combatant status. Even though an act as an unlawful combatant may also constitute
an offence under domestic or international law by itself, unlawful combatant status is to be
distinguished from criminal responsibility for specific hostile acts committed as an unlawful
combatant.80 Even so, because of the danger the hostile acts committed as unlawful
combatants bring to the opposing party, the detaining state has the power to impose the
maximum penalty of death.81
The term “unprivileged combatant” would perhaps be more suitable since failure to comply
with the conditions set out in Article 4 of the Third Geneva Convention leads to ineligibility
for the combatant’s privilege.82 Occasionally, unlawful combatants have also been named
illegal, irregular, or even non-permissible83. These appellations are related to the more
traditional labels of marauder or franc-tireur.84 Other examples of persons falling under
unlawful combatant status because they lack the combatant’s privilege include, but are not
limited to: civilians who engage in hostilities in violation of their protected status, nationals of
the Detaining Power such as deserters85, persons who have committed hostile acts without
meeting the qualifications prescribed for lawful combatants such as guerrillas or partisans,
members of resistance movements who do not fulfill the requirements for lawful combatant
status and spies.86
80
Y.
DINSTEIN,
The
conduct
of
hostilities
under
the
law
of
international
armed
conflict,
Cambridge,
Cambridge
University
Press,
2004,
30;
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
81
M.
McDOUGAL
&
F.
FELICIANO,
The
international
law
of
war:
transnational
coercion
and
world
public
order,
New
Haven,
New
Haven
Press,
1994,
554‐555.
82
Ibid.
83
Ibid.,
542.
84
V.
BILKOVA,
“Talking
about
unlawful
combatants?
A
short
and
concise
assessment
of
a
Long
and
Multifaceted
Debate”,
Central
European
Journal
of
International
and
Security
Studies,
CEJISS,
http://www.cejiss.org/assets/pdf/articles/vol3‐2/bilkova‐
talking_about_unlawful_combatants.pdf,
last
visited
July
21,
2010
85
A.
ROSAS,
The
legal
status
of
prisoners
of
war:
A
study
in
international
humanitarian
law
applicable
in
armed
conflict,
Helsinki,
Suomalainen
tiedeakatemia,
1976,
383.
86
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010;
R.
R.
BAXTER,
16
An exception is made for the “levée en masse” in non-occupied territory, which is composed
of undirected inhabitants who spontaneously take up arms against invading enemy forces due
to the fact that the regular armed forces have not had time to assemble.87 If they carry their
arms openly and respect the laws and customs of war, these persons are also entitled to
prisoner of war status if they fall into the power of the enemy.88
2.1.3 A gap in IHL?
Many international law commentators, human rights organizations and humanitarian NGOs
stand firmly by their opposing position that only two categories exist: lawful combatants and
civilians, which are respectively covered by the Third and Fourth Geneva Conventions. This
conclusion is reached by reading the Third and Fourth Geneva Conventions closely
together.89 The broad definition of civilians in the Fourth Geneva Convention, in contrast with
the clear-cut categories of persons entitled to prisoner of war status in the Third Geneva
Convention, allegedly demonstrates the all-inclusive nature of the Conventions.90 According
to these, if someone is not entitled to prisoner of war protection under the Third Convention,
that person necessarily falls within the Fourth Civilian Convention. A third category of
unlawful combatants is rejected in every respect.91 This premise finds textual support in
Additional Protocol I by the demarcation of a civilian as “any person who does not belong to
one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third
Convention and in Article 43 of this Protocol”.92 Under the doctrine of integrality, this means
that every person is covered.93 As the Commentary to the Fourth Geneva Convention
confirms:
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
87
Third
Geneva
Convention
(1949),
art.
4(A)(6).
88
Ibid.
89
M.
SASSOLI,
“Use
and
abuse
of
the
laws
of
war
in
the
war
on
terrorism”,
Law
&
Inequality
Journal,
22
Law
&
Ineq.
J.
195
(2004).
90
D.
A.
HASS,
“Crafting
military
commissions
post‐Hamdan:
The
Military
Commissions
Act
of
2006”,
Indiana
Law
Journal,
82
Ind.
L.
J.
1101
(Fall
2007).
91
Ibid.;
92
Protocol
I,
art.
50.
93
V.
BILKOVA,
“Talking
about
unlawful
combatants?
A
short
and
concise
assessment
of
a
Long
and
Multifaceted
Debate”,
Central
European
Journal
of
International
and
Security
17
“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 Geneva 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.”94
However, the reverse standpoint contends that Article 4 of the Third Geneva Convention
concerning prisoners of war simply sums up certain categories of persons entitled to prisoner
of war status and does not necessarily assert the immediate designation of unqualified persons
as civilians.95 Textual support can also be found in favor of the existence of a third category.
Article 45 of Additional Protocol I talks about “Any person who has taken part in hostilities,
who is not entitled to prisoner-of-war status and who does not benefit from more favorable
treatment in accordance with the Fourth Convention…” and then makes reference to Article
75 of that same Protocol, which deals with “persons who are in the power of a Party to
conflict and who do not benefit from more favorable treatment under the Conventions or
under this Protocol”. These articles appear to point to a category of persons who are neither
lawful combatants nor civilians, therefore filling the ‘gap’ in treaty law.96
Moreover, it is hard to believe that the logic of not having an intermediate status was intended
to fit the realities of “new” conflicts such as those with terrorist organizations, which by their
Studies,
http://www.cejiss.org/assets/pdf/articles/vol3‐2/bilkova‐
talking_about_unlawful_combatants.pdf,
last
visited
July
21,
2010.
94
J.
PICTET,
International
Committee
of
the
Red
Cross,
Commentary
on
the
Geneva
Conventions
Vol.
IV,
Commentary
to
Article
4
retrieved
at:
http://www.icrc.org/ihl.nsf/COM/380‐600007?OpenDocument,
last
visited
July
18,
2010.
95
K.
DORMANN,
“The
Legal
Situation
of
“Unlawful/Unprivileged
Combatants”,
International
Review
of
the
Red
Cross,
85
Int’l
Rev.
Red
Cross
45
(2003);
J.
B.
FALK,
“The
Global
War
on
Terror
and
the
Detention
Debate:
The
applicability
of
Geneva
Convention
III”,
Journal
of
International
Law
&
Relations,
3
J.
Int’l
L.
&
Int’l
Rel.
31
(Spring,
2007);
United
States
District
Court
for
the
District
of
Columbia,
In
Re
Guantanamo
Bay
Detainee
Litigation,
Respondents’
Memorandum
Regarding
the
Government’s
Detention
Authority
Relative
to
Detainees
Held
at
Guantanamo
Bay
(March
13,
2009),
p.
8,
retrieved
at:
http://www.justice.gov/opa/documents/memo‐re‐det‐auth.pdf,
last
visited
July,
2010.
96
K.
WATKIN,
“Warriors
without
rights?
Combatants,
unprivileged
belligerents,
and
the
struggle
over
legitimacy”,
HPCR
Occasional
Paper
Series,
Program
on
Humanitarian
Policy
and
Conflict
Research,
Harvard
University
(2005),
retrieved
at:
http://www.hpcr.org/pdfs/OccasionalPaper2.pdf,
last
visited
July
23,
2010
18
very nature are distinct from previous warfare. Case in point, the current “war on terror”
appears to be never-ending, unclear and particularly ill defined since there exists no clear line
between who is an enemy and who is a regular civilian in this conflict. That line is even more
blurred on the battlefields of Afghanistan and Iraq, from which many of the Guantanamo
detainees come from, and now in Pakistan as well.97 The de facto classification of unlawful
combatants as civilians who only temporarily lose their immunity for taking up arms could for
instance give persons that consistently and deliberately participate in hostilities an air of
legitimacy.98 What is even worse, that type of categorization would put innocent civilians in
the same category with terrorists and killers. Furthermore, seeing as the civilian’s protection
only disappears for such time as he takes up arms, one would not be able to target persons
when they are training for or planning an attack.99 Such individuals would be placed in an
ideal position to carry out attacks with a minimum amount of risk. As Professor Yoram
Dinstein, a respected expert in the laws of war, writes:
“…a person is not allowed to wear simultaneously two caps: the hat of civilian and the
helmet of a soldier. A person who engages in military raids by night, while purporting
to be an innocent civilian by day, is neither a civilian nor a lawful combatant.”
Ultimately the strict use of the two-category approach, notwithstanding the fact that it is more
grounded in IHL treaties, encourages such fighters to flout the laws of war and will induce
less protection for true non-combatants.100
Noticeably, the Israeli Supreme Court maintains an entirely different use of the two-category
supposition. Although the government of Israel palpably acknowledges the existence of
unlawful combatants as a third separate category from lawful combatants and civilians, the
Israeli Supreme Court has generally chosen for a two-category approach in which unlawful
97
F.
ZAKARIA,
“Pakistan
is
epicenter
of
‘Islamic
terrorism’”,
CNN
International,
5
May
2010,
http://edition.cnn.com/2010/OPINION/05/05/zakaria.pakistan.terror/index.html,
last
visited
May
3,
2010.
98
K.
WATKIN,
“Warriors
without
rights?
Combatants,
unprivileged
belligerents,
and
the
struggle
over
legitimacy”,
HPCR
Occasional
Paper
Series,
Program
on
Humanitarian
Policy
and
Conflict
Research,
Harvard
University
(2005),
retrieved
at:
http://www.hpcr.org/pdfs/OccasionalPaper2.pdf,
last
visited
July
23,
2010.
99
C.
A.
BRADLEY,
“The
United
States,
Israel
&
Unlawful
Combatants”,
Green
Bag,
12
Green
Bag,
2d
397
(Summer
2009).
100
Ibid.
19
combatants are considered a subcategory of civilians.101 In The Public Committee against
Torture in Israel et al. vs. The Government of Israel, the Supreme Court said that “it does not
appear to us that we were presented with data sufficient to allow us to say, at the present
time, that such a third category has been recognized in customary international law”.102 The
court also stated the following about the terrorist organizations that are active in Judea,
Samaria and the Gaza Strip:
“The terrorists and their organizations, with which the State of Israel has an armed
conflict of international character, do not fall into the category of combatants… Indeed,
the terrorists and the organizations which send them to carry out attacks are unlawful
combatants. They do not enjoy the status of prisoners of war. They can be tried for their
participation in hostilities, judged, and punished.”103
On its face, this statement appears to contradict itself, but this logic does make sense under
the two-category approach as the Court goes on to clarify that “terrorists participating in
hostilities do not cease to be civilians, but by their acts they deny themselves the aspect of
their civilian status which grants them protection from military attack”.104 Nevertheless, the
consequences here are virtually the same as under the three-category notion. Only this twocategory reasoning does not seem to adhere to the usual confines of the civilian category, as
the direct participation in hostilities which causes civilians to lose their protected status is
interpreted here as to include persons who plan, prepare or coordinate hostile acts.105 As a
matter of fact, the Court even considers civilians who willingly serve as a human shield for
terrorist organizations to be unlawful combatants and therefore, a lawful target for attack.106
The civilian category is being stretched in more ways than one with this logic, which could
ultimately lead to less protection for true civilians highly similar to the aforementioned strict
101
Ibid.
Israel
Supreme
Court,
HCJ
769/02
Pub.
Comm.
Against
Torture
in
Isr.
v.
The
Gov’t
of
Isr.
[2006],
para.
28,
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf,
last
visited
July
7,
2010.
103
Ibid.
para.
25.
104
Ibid.
para.
31.
105
C.
A.
BRADLEY,
“The
United
States,
Israel
&
Unlawful
Combatants”,
Green
Bag,
12
Green
Bag,
2d
397
(Summer,
2009).
106
Israel
Supreme
Court,
HCJ
769/02
Pub.
Comm.
Against
Torture
in
Isr.
v.
The
Gov’t
of
Isr.
[2006],
para.
36,
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf,
last
visited
July
7,
2010.
102
20
application of the doctrine of integrality.
Finally, the alleged silence in international treaties concerning the unlawful combatant
category has sparked the debate of whether or not a ‘gap’ exists in IHL, as opposed to integral
coverage of every person either as a prisoner of war or as a civilian. In this discussion, radical
suggestions have surfaced to mend the supposed void, such as amending Additional Protocol I
with a separate express category (much like spies or mercenaries) or even negotiating a new
status under IHL.107 These ideas come across as farfetched since it is highly unrealistic to gain
widespread support for them when some states have not even ratified the current Additional
Protocols to the Geneva Conventions of 1949.
The underlying values of the Geneva Conventions indeed assume full coverage, which is why
it is vital to interpret them as such.108 Yet the fact that a conflict may not be anticipated in
1949 does not necessarily mean that modern treaty law cannot be applied to it. The apparent
silence in modern treaty law concerning the unlawful combatant category can also be
interpreted as deliberate due to the danger unlawful combatants present to their opponents,
which is not to say that it does not exist.109 It merely lacks protection under international law.
In any case, since the phrase itself does not pop up in IHL treaties or customary international
law, we must mainly rely on state practice, case law and legal literature to ensure a solid
classification.110
2.1.4 Non-international armed conflict
We can be very brief in discussing situations of non-international armed conflict, seeing as
combatant status does not have any legal significance here because of the fact that the
107
J.
B.
FALK,
“The
Global
War
on
Terror
and
the
Detention
Debate:
The
applicability
of
Geneva
Convention
III”,
Journal
of
International
Law
&
Relations,
3
J.
Int’l
L.
&
Int’l
Rel.
31
(Spring
2007).
108
Ibid.
109
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
110
Ibid.;
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
491.
21
applicable law does not provide for a combatant’s privilege.111 Lawful combatant status, the
combatant’s privilege and prisoner of war status are limited to the scope of international
armed conflict or belligerent occupation, as described in Common Article 2. This limitation is
understandable given the fact that governments generally are reluctant to adopt provisions that
would give their domestic enemies authorization to commit acts of war against them.112
2.2 Protections
2.2.1 International armed conflict
Due to the fact that unlawful combatants do not meet the requirements for prisoner of war
status upon capture, they are not entitled to protection under the Third Geneva Convention.113
The Commentary of Bothe, Partsch, and Solf on the 1977 Additional Protocols suggests that
if an independent force has no factual link to a Party to an international armed conflict, as is
required in article 4(A)(2) of the Third Geneva Convention, it would probably be considered
to be no more protected than rebels in a non-international armed conflict who are waging a
private war.114 However, being labeled an unlawful combatant does not mean that such an
individual is beyond the protection of the law. Article 5 of the Fourth Geneva Convention first
of all states that,
“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
111
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC,
21
July
2005,
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism‐ihl‐210705?opendocument,
last
visited
June
11,
2010.
112
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
113
K.
DORMANN,
“The
Legal
Situation
of
“Unlawful/Unprivileged
Combatants”,
International
Review
of
the
Red
Cross,
85
Int’l
Rev.
Red
Cross
45
(2003).
114
M.
BOTHE,
K.
PARTSCH
&
W.
SOLF,
New
rules
for
victims
of
armed
conflict:
Commentary
on
the
two
protocols
additional
to
the
Geneva
Conventions
of
1949,
Boston,
Kluwer,
1982,
252.
22
rights and privileges under the present Convention… 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 Convention”.115
This article essentially implies that unlawful combatants may be captured and detained
throughout the armed conflict and – according to some – even after hostilities have ended, but
minimum standards for their treatment must be upheld and charges should be brought within a
reasonable time.116 It was introduced specifically to deal with the situation of civilians who
participate directly in hostilities.117
The Third Geneva Convention adds to these safeguards by expressing that in case of doubt
whether a certain person is entitled to prisoner of war status, a competent tribunal shall
determine that person’s legal status.118 Until that time, he or she will be granted all the
protections of someone who already holds prisoner of war status. Article 45 of Protocol I
Additional to the Geneva Conventions of 1949 supplements Article 5 of the Third Convention
concerning a proper determination of status by a competent tribunal.119 Paragraph 3 of Article
45 reads that,
“Any person who has taken part in hostilities, who is not entitled to prisoner-of-war
status and who does not benefit from more favorable treatment in accordance with the
Fourth Convention shall have the right at all times to the protection of Article 75 of
this Protocol.”
Article 75 provides for minimum humanitarian standards applicable to members of armed
forces who do not fulfill the appropriate requirements, civilians who participate in hostilities,
115
Art.
5
of
Convention
(IV)
Relative
to
the
Protection
of
Civilian
Persons
in
Times
of
War,
Geneva,
12
August
1949.
116
I.
DETTER,
“The
law
of
war
and
illegal
combatants”,
George
Washington
Law
Review,
75
Geo.
Wash.
L.
Rev.
1049
(August
2007);
J.
WOOLMAN,
“The
legal
origins
of
the
term
‘enemy
combatant’
do
not
support
its
present
day
use”,
Journal
of
Law
and
Social
Challenges,
7
J.
L.
&
Soc.
Challenges
145
(2005).
117
C.
D.
ELMORE,
“An
enemy
within
our
midst:
Distinguishing
combatants
from
civilians
in
the
war
against
terrorism”,
University
of
Kansas
Law
Review,
57
U.
Kan.
L.
Rev.
213
(Oct.
2008).
118
Third
Geneva
Convention
of
1949,
art.
5.
119
M.
BOTHE,
K.
PARTSCH
&
W.
SOLF,
New
rules
for
victims
of
armed
conflict:
Commentary
on
the
two
protocols
additional
to
the
Geneva
Conventions
of
1949,
Boston,
Kluwer,
1982,
261.
23
spies, mercenaries and so on.120 Paragraph 1 of Article 75 contains a non-discrimination
obligation, paragraphs 3 and 6 give ground rules concerning arrest and detention and
paragraphs 4 and 7 provide some procedural guarantees. Most importantly, paragraph 2
provides for the following humane treatment protections:
“The following acts are and shall remain prohibited at any time and in any place
whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in
particular:
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;
(b) outrages upon personal dignity, in particular humiliating and degrading treatment,
enforced prostitution and any form of indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.”
Admittedly, given the fact that this article nearly repeats the wording of Common Article 3,
the aforementioned statement of Bothe, Partsch and Solf in their Commentary on the 1977
Additional Protocols is anything but without merit.
Furthermore, just because combatants are not legally entitled to prisoner of war status, does
not mean that governments cannot accord them with the same treatment as a matter of policy,
influenced by humanitarian considerations.121 In the Nigerian civil war of 1967-1970, the
Nigerian government considered the conflict to be an internal Nigerian affair, but treated
captured Biafran combatants (who were fighting for the secession of the southeastern
provinces) as prisoners of war. The operational code of conduct for the Nigerian Army
provided that “Soldiers who surrender will not be killed, they are to be disarmed and treated
as prisoners of war. They are entitled in all circumstances to humane treatment and respect
for their person and their honor”.122 Nigeria did not, however, consider itself to be bound by
120
Ibid.
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
122
Ibid.;
A.
ROSAS,
The
legal
status
of
prisoners
of
war:
A
study
in
international
humanitarian
law
applicable
in
armed
conflict,
Helsinki,
Suomalainen
tiedeakatemia,
1976,
197.
121
24
the Geneva Conventions except for Common Article 3 to stress the internal character of that
civil strife.
In any case and for whatever reason, if combatants do not qualify for prisoner of war status,
they are minimally entitled to treatment in conformity with the non-derogable human rights
guarantees that apply in wartime123, the minimal standards of the Fourth Geneva Convention
and Article 75 of Additional Protocol I.124
2.2.2 Non-international armed conflict
Seeing as combatant status is irrelevant in non-international armed conflict, the minimal
protections of customary IHL and IHL concerning non-international armed conflict apply no
matter what way persons participated in such hostilities.125 Armed groups or terrorist
organizations involved in an internal armed conflict that would be considered to be unlawful
in situations of international armed conflict, will receive no more than the following
protections.
Article 3 common to the Four Geneva Conventions of 1949, concerning conflicts not of an
international character, provides for minimal standards of humane treatment in all
circumstances and without discrimination for all persons who have fallen in enemy hands. To
accomplish that goal, it states the following prohibited acts:
“(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
123
The
hard
core
of
human
rights
which
remains
applicable
in
wartime
will
be
discussed
further
in
chapter
4
of
this
dissertation.
124
“Assessing
Damage,
Urging
Action:
Report
of
the
Eminent
Jurists
Panel
on
Terrorism,
Counter‐Terrorism
and
Human
Rights”,
An
initiative
of
the
International
Commission
of
Jurists,
Spring
2009,
http://icj.org/IMG/EJP‐report.pdf,
last
visited
July
15,
2010;
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC,
21
July
2005,
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism‐ihl‐210705?opendocument,
last
visited
June
11,
2010.
125
K.
DORMANN,
“The
Legal
Situation
of
“Unlawful/Unprivileged
Combatants”,
International
Review
of
the
Red
Cross,
85
Int’l
Rev.
Red
Cross
45
(2003).
25
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.”
Additional Protocol II of 1977 regarding the protection of victims of non-international armed
conflict then elaborates on the abovementioned fundamental guarantees for humane treatment
in Article 4 and more importantly, adds procedural guarantees for a fair prosecution and
punishment of criminal offences related to the armed conflict. Next to the guarantees of
independence and impartiality, Article 6 lists the following requirements for penal
prosecutions in non-international armed conflict in particular:
“(a) the procedure shall provide for an accused to be informed without delay of the
particulars of the offence alleged against him and shall afford the accused before and
during his trial all necessary rights and means of defense;
(b) no one shall be convicted of an offence except on the basis of individual penal
responsibility;
(c) no one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under the law, at the time when
it was committed; nor shall a heavier penalty be imposed than that which was
applicable at the time when the criminal offence was committed; if, after the
commission of the offence, provision is made by law for the imposition of a lighter
penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty
according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt.”
Accordingly, members of armed groups who participate in non-international hostilities may
be prosecuted under domestic criminal law, but with respect for the appropriate guarantees.126
2.3 Conclusion
To determine the unlawful combatant’s legal status, we must first make the distinction
between civilians, who enjoy protection from the perils of war under the Fourth Geneva
Convention, and combatants, who participate in hostilities. Unlike the “unlawful” combatant,
the “lawful” combatant benefits from the combatant’s privilege. This means that he is entitled
126
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC,
21
July
2005,
http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism‐ihl‐210705,
last
visited
June
11,
2010.
26
to engage in hostilities and will be granted prisoner of war protection under the Third Geneva
Convention upon capture. He will also receive immunity from prosecution for all lawful acts
of war he has committed in the course of an international armed conflict. The unlawful
combatant on the other hand is a person who takes part in hostilities without having the right
to do so. This individual is subject to trial and punishment at the hands of the Detaining
Power, possibly by military tribunals.
Although many commentators still favor a strict interpretation of the Geneva Conventions
with only the two categories, with the exclusion of lawful combatant status automatically
warranting inclusion as a civilian, a growing number of experts acknowledges the existence of
a separate category of unlawful combatants. Still this acknowledgement does not necessarily
demonstrate a ‘gap’ in IHL. International treaty law simply does not offer unlawful
combatants the kind of protection it offers to lawful combatants or civilians.
Even so, the unlawful combatant is entitled to a fair and regular trial, respect for the minimum
standards of treatment during his detention and the minimal guarantees expressed in Article
75 of Additional Protocol I to the Geneva Conventions of 1949. Although some key actors on
the international IHL stage have not ratified the Protocols Additional to the Geneva
Conventions, rules such as expressed in Article 75 are generally deemed to have a customary
nature.127
It must also be noted that in theory, combatant status is irrelevant in non-international armed
conflicts. Therefore, the minimal protections of customary IHL and specific provisions
regulating this type of conflict apply to all combatants, regardless of the way they participated
in hostilities.
127
A.
ROBERTS,
“The
Laws
of
War
in
the
War
on
Terror”,
in:
Terrorism
and
the
Military
International
Legal
Implications,
edited
by
W.
P.
HEERE,
The
Hague,
T.M.C.
Asser
Press,
2003,
65‐66.
27
3 Application
of
Unlawful
Combatant
Status
“This also is a reason why you should be unwilling to assume that role, because it is denied
the privileges attaching to military service. They have divested themselves of the character
which would prevent their being treated in that cruel and degrading fashion.”
Alberico Gentili128
3.1 Usages
Now that we have gained more insight of what constitutes unlawful combatant status and
which protections unlawful combatants possess under IHL, the time has come to materialize
this rather abstract basis for analysis with tangible types of unlawful combatancy.
3.1.1 Spies and saboteurs
The most traditional usage pertains to spies and saboteurs. These are individuals who
deliberately disguise themselves as civilians and use secret methods of warfare, which causes
them to lose the combatant’s privilege. 129 Upon capture, spies and saboteurs do not become
prisoners of war for they can be prosecuted for participation in hostilities.
However, espionage in itself is not an act punishable under international law, it merely causes
the person who engages in it to lose his claim of any protected status and to be left at the
mercy of the opposing belligerent.130 This line of reasoning is illustrative of the broader
128
Alberico
Gentili
(1552‐1608)
on
the
role
of
spies,
as
retrieved
in:
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
129
V.
BILKOVA,
“Talking
about
unlawful
combatants?
A
short
and
concise
assessment
of
a
Long
and
Multifaceted
Debate”,
Central
European
Journal
of
International
and
Security
Studies,
http://www.cejiss.org/assets/pdf/articles/vol3‐2/bilkova‐
talking_about_unlawful_combatants.pdf,
last
visited
July
21,
2010.
130
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
28
distinction between international crimes and acts with respect to which international law
affords no protection.131 Most rules involving espionage in wartime were drafted at the
Brussels Conference of 1874 and then reiterated at the Hague Conventions of 1899 and
1907.132 In modern IHL treaty law, espionage is dealt with separately from other acts that
cause the forfeiting of the combatant’s privilege. Article 29 of the Hague Regulations defines
a spy as someone who “clandestinely or on false pretences, obtains or endeavors to obtain
information in the zone of operations of a belligerent, with the intention of communicating it
to the hostile party”.133 The following article 30 requires that persons falling under this
description shall not be punished without a judicial determination whether they have or have
not engaged in espionage. While not defining these acts, Article 5 and 68 of the Fourth
Geneva Convention also expressly mention espionage and sabotage. Article 46(2) of
Additional Protocol I of 1977 reaffirms that members of the armed forces who are captured
while engaging in espionage, do not have a right to prisoner of war treatment.
Sixty years before the United States’ campaign against terrorism following the September 11
attacks started, the unlawful combatant category was applied in this sense, in the 1942 United
States Supreme Court Quirin case. Eight German soldiers (of which two were US citizens, but
all were born in Germany), disguised in civilian clothes, secretly entered US territory to
engage in acts of sabotage and espionage against the United States.134 As the events occurred
in the course of World War II, the German soldiers were tried before military commissions
appointed by an order of President Franklin D. Roosevelt.135 The soldiers challenged their
detention by petitioning to be discharged by writ of habeas corpus. However, the US
Supreme Court in Ex part Quirin held that the German soldiers were held in lawful custody
for trial before the military commission, which was also lawfully constituted.136 Among the
charges was the violation of the law of war in the form of unlawful combatancy.137 However,
even though there is no doubt that these unlawful combatants were subject to trial and
punishment under the domestic laws of the United States, the discussion relating to the
131
Ibid.;
M.
McDOUGAL
&
F.
FELICIANO,
The
international
law
of
war:
transnational
coercion
and
world
public
order
(1961),
New
Haven,
New
Haven
Press,
1994,
554‐555.
132
Ibid.
133
Convention
(IV)
Respecting
the
Laws
and
Customs
of
War
on
Land.
The
Hague,
18
October
1907.
134
US
Supreme
Court,
Ex
Parte
Quirin,
317
US
1,
21
(1942).
135
Ibid.,
11.
136
Ibid.
137
Ibid.,
23.
29
difference between international crimes and merely acts “with respect to which international
law affords no protection” surfaces again.138 Although the Supreme Court did not pay much
attention to the offences under United States laws, these charges essentially afforded better
grounds for prosecution in the matter.139 Regardless, all eight unlawful combatants were
convicted by the military commission and consequently executed or sentenced to a life in
prison.140
3.1.2 One-time lawful combatants
This type of unlawful combatants is closely aligned with spies and saboteurs, although the
category reaches a bit further than that. It constitutes of members of the armed forces who fail
to distinguish themselves from the civilian population for instance by violating the
requirements with respect to manner of dress, or irregular troops who lose their combatant’s
privilege because they do not comply (anymore) with the conditions set forth in article 4 of
the Third Geneva Convention relative to the Treatment of Prisoners of War.141
This category was applied when a court in the United Kingdom determined two members of
the Indonesian armed forces not to be entitled to prisoner of war status, because they were
dressed in civilian clothes both when they had committed acts of war and when they were
captured.142 Although the conditions of article 4(2)(A) of the Third Geneva Convention are
only spelled out literally for irregular troops, the court came to the conclusion that “should
regular combatants fail to comply with these four conditions, they may in certain cases
138
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
139
Ibid.
140
K.
WATKIN,
“Warriors
without
rights?
Combatants,
unprivileged
belligerents,
and
the
struggle
over
legitimacy”,
HPCR
Occasional
Paper
Series,
Program
on
Humanitarian
Policy
and
Conflict
Research,
Harvard
University
(2005),
retrieved
at:
http://www.hpcr.org/pdfs/OccasionalPaper2.pdf,
last
visited
July
23,
2010.
141
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
142
Judicial Committee of the Privy Council, Bin Haji Mohamed Ali and Another v. Public
Prosecutor (U.K.), 28 July 1960, 1 A.C. 430, as retrieved at: http://www.icrc.org/ihlnat.nsf/72ac608e14b9c5d241256486004ad09f/383128666c8ab799c1256a1e00366ad3!OpenD
ocument, last visited June, 2010.
30
become unprivileged belligerents… it does not suffice in every case to establish membership
of an armed force to become entitled on capture to treatment as a prisoner of war”.143 The
court bases this analysis on the cardinal rule of customary IHL to distinguish between
combatants and “peaceful inhabitants”.144
With the creation of Additional Protocol I of 1977 posterior to this judgment, the first step in
the court’s reasoning may now even be deemed dispensable. Article 43 of this Protocol does
not differentiate between regular armed forces and militias, like article 4 of the Third Geneva
Convention does. Instead, it sets forth virtually the same conditions, but directed at
“organized armed forces, groups and units which are under a command responsible to that
Party for the conduct or its subordinates”. Indisputably for countries that have ratified the
Protocol, this means that the entire armed forces – both regular and irregular – have to oblige
by the requirements of article 44(3) of Additional Protocol I to retain the combatant’s
privilege and accordingly receive prisoner of war status upon capture. Regardless, even solely
under the Third Geneva Convention we must come to the conclusion that armed forces, both
regular and irregular, shall be classified as unlawful combatants for such time as they fight out
of uniform or without distinctive sign.
3.1.3 Regular civilians, non-combatant members of and civilians accompanying
the armed forces
The following three categories have in common that they are all civilians who enjoy
protection under the Third Geneva Convention, as long as they do not engage in hostilities. If
they do not comply with this requirement, they will be regarded as unlawful combatants.145
As discussed before, civilians enjoy special protection from the dangers of war. In exchange
for not engaging in hostilities, they are immune from being targeted.146 For such time as they
143
Ibid.
Ibid.
145
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
146
Additional
Protocol
I,
Art.
51(1).
144
31
do take up arms, they lose that protection and can be considered unlawful combatants.147 For
example, in an Iraq war incident of 2003 where British soldiers killed an Iraqi citizen, the
prosecutor for the United Kingdom dropped the case against the soldiers because reasonably
the Iraqi citizen “had become an unlawful combatant and therefore under the Rules of
Engagement, under which the soldiers were required to operate, they would have been
entitled to take offensive action against him”.148
However, regular civilians are to be distinguished from civilians accompanying the armed
forces, for the reason that only this last category is subject to capture and treatment like
prisoners of war on the basis of the Third Geneva Convention.149 The class comprises out of
“civilian members of military aircraft crews, war correspondents, supply contractors,
members of labor units or of services responsible for the welfare of the armed forces,
provided that they have received authorization, from the armed forces which they
accompany”.150 Although these persons will be granted protection like prisoners of war upon
capture, they remain civilians. If they do participate directly in hostilities like combatants,
their immunity is forfeited and they can be treated as unlawful combatants.151
Lastly, non-combatant members of the armed forces such as chaplains, doctors, nurses and
other medical personnel, enjoy special protections under the 1949 Geneva Conventions.152
Article 28 of the First Geneva Convention prescribes that these persons cannot be designated
as prisoners of war, although they do at the very least benefit from the Third Geneva
Convention relative to the Treatment of Prisoners of War.153 If these specific non-combatant
members of the armed forces do fall into the hands of the enemy, they “shall be retained only
in so far as the state of health, the spiritual needs and the number of prisoners of war
147
A.
M.
DANNER,
“Defining
unlawful
enemy
combatants:
a
centripetal
story”,
Texas
International
Law
Journal,
43
Tex.
Int’l
L.J.
1
(Fall
2007).
148
The
Crown
Prosecution
Service,
Press
Release,
“CPS
decision
on
Iraq
deaths
case”,
27
April
2006,
http://www.cps.gov.uk/news/press_releases/123_06/,
last
visited
July
30,
2010.
149
Ibid.
150
Third
Geneva
Convention
of
1949,
Art.
4(A)(4).
151
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
152
Ibid.
153
Convention
(I)
for
the
Amelioration
of
the
Condition
of
the
Wounded
and
Sick
in
Armed
Forces
in
the
Field,
Geneva,
12
August
1949,
Art.
28
para.
2.
32
require”.154 Just the same, for the time that these persons do assume the role of combatants,
they inevitably lose this protection and are no longer immune from attack.
3.1.4 Nationals of the Detaining Power
One group of actors generally denied protection as prisoner of war are persons who are
nationals of or owe allegiance to the Detaining Power. It has been the general opinion since
the Lieber Code in 1863 that prisoner of war status does not extend to subjects of the
Detaining Power.155 The phrasing of article 4 of the Third Geneva Convention hints at this
principle by stating that prisoner of war status is accorded to persons who have fallen into the
hands of the enemy.156 This argument is based on the rationale that such persons are rebels or
deserters, and therefore can be punished as traitors to their country.157 As mentioned before,
the Detaining Power still has the option of granting its own subjects prisoner of war status,
but is definitely not obligated to do so.
3.1.5 Guerrilla forces and partisans
A common use of the unlawful combatant category involves persons who illegally take part in
hostilities, even if they distinguish themselves from the civilian population according to IHL.
For the time as they assume the role of combatants, they forfeit their immunity from attack.158
They will also not receive prisoner of war status and can be prosecuted for their mere
participation in hostilities, since they were not authorized to do so. This is a category that
developed predominantly after World War II and was therefore not envisioned in the Geneva
Conventions of 1949.
154
Ibid.,
Art.
28
para.
1.
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
156
A.
ROSAS,
The
legal
status
of
prisoners
of
war:
A
study
in
international
humanitarian
law
applicable
in
armed
conflict,
Helsinki,
Suomalainen
tiedeakatemia,
1976,
383.
157
Ibid.
158
K.
DORMANN,
“The
Legal
Situation
of
“Unlawful/Unprivileged
Combatants”,
International
Review
of
the
Red
Cross,
85
Int’l
Rev.
Red
Cross
45
(2003).
155
33
In this sense members of militias or guerrilla groups, who do not fulfill the requirements of
article 4 of the Third Geneva Convention, are unlawful combatants.159 Since guerrilla warfare
is in essence secretive and guerrilla forces commonly fail to fulfill these conditions, this will
most likely be the case. When such acts are performed individually, the unlawful combatant is
historically called a “franc-tireur”. More common are of course private armed groups of
partisans, who willingly and consistently take up arms and fight without meeting the
qualifications established in Article 4 or corresponding provisions of the earlier conventions
and later protocols.
Like the spy, the guerrilla fighter’s punishment is principally up to the detaining state and the
protections he receives under international law come to an end when a qualified judicial
tribunal decides that the fighter does not qualify for protected status either as a prisoner of war
or as a peaceful civilian.160 Unlike the civilian who temporarily loses his protection by taking
up arms and then regains it from the moment he ceases to take part in hostilities, these nonstate actors share a continuous combat function stemming from the group and can be targeted
as such.161 The criterion of a continuous combat function, which goes beyond “spontaneous,
sporadic, or unorganized direct participation in hostilities”, demarcates a workable line
between civilian and unlawful combatant.162
At the Hostages Trial after World War II, a US military tribunal was confronted with the
question whether guerrilla fighters are lawful belligerents and therefore entitled to prisoner of
war status.
163
Besides the taking of civilian hostages, the German generals on trial were
accused of labeling random persons as “partisans” and therefore subject to targeting and not
entitled to treatment as prisoners of war.164 In its judgment, the military tribunal agreed with
the defendants that the alleged guerrilla fighters “…were not lawful belligerents entitling them
159
M.
McDOUGAL
&
F.
FELICIANO,
The
international
law
of
war:
transnational
coercion
and
world
public
order,
New
Haven,
New
Haven
Press,
1994,
545.
160
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
161
N.
MELZER,
“Interpretative
Guidance
on
the
Notion
of
Direct
Participation
in
Hostilities
Under
International
Humanitarian
Law”,
International
Review
of
the
Red
Cross,
Vol.
90
No.
872
(Dec.
2008),
retrieved
at:
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review‐
872‐p991/$File/irrc‐872‐reports‐documents.pdf,
last
visited
April,
2010.
162
Ibid.,
1036.
163
United
States
Military
Tribunal,
Nuremberg,
Trial
of
Wilhelm
List
and
Others,
8th
July
1947
to
19th
February
1948,
Case
no.
47.
164
Law
Reports
of
Trials
of
War
Criminals,
Selected
and
Prepared
by
the
UN
War
Crimes
Commission,
London,
1949,
Vol.
VIII,
35.
34
to prisoner of war status upon capture. We are obliged to hold that such guerrillas were
franc-tireurs who, upon capture, could be subjected to the death penalty.”
165
Consequently,
the defendants were found not guilty of any crime for executing partisans.166
3.1.6 Mercenaries
The mercenary is primarily a professional who fights for money, without being a national of a
Party to the conflict or part of the armed forces of a Party.167 Like the guerrilla fighter, he is
an unlawful combatant purely due to his lack of entitlement to take part in hostilities, even
when distinguishing from the civilian population.168 Like the spy, he is expressly excluded
from prisoner of war protections by treaty provisions. Article 47 of Additional Protocol I of
1977 of this Protocol simply states that a mercenary “shall not have the right to be a
combatant or a prisoner of war”, and then continues to give a definition of the term based on
six criteria which must be met cumulatively. The mercenary is also subject to trial and
punishment under the domestic laws of the Detaining Power for his unprivileged belligerency.
3.1.7 Terrorists
This last category of persons is the most recent one to have been labeled as unlawful
combatants. This is how the term has been used by Israel when attacked by Palestinian
terrorists, especially since the wave of terrorist attacks against the State of Israel following the
start of the second intifada in February 2000169, and by the United States ensuing the
165
Ibid.,
75.
Ibid.
167
C.
PILLOUD,
Y.
SANDOZ,
B.
ZIMMERMAN
et
al.,
ICRC
Commentary
on
the
Additional
Protocols
of
8
June
1977
to
the
Geneva
Conventions
of
12
August
1949,
Leiden,
Martinus
Nijhoff
Publishers,
1987,
571‐582.
168
V.
BILKOVA,
“Talking
about
unlawful
combatants?
A
short
and
concise
assessment
of
a
Long
and
Multifaceted
Debate”,
Central
European
Journal
of
International
and
Security
Studies,
http://www.cejiss.org/assets/pdf/articles/vol3‐2/bilkova‐
talking_about_unlawful_combatants.pdf,
last
visited
July
21,
2010.
169
Israel
Supreme
Court,
HCJ
769/02
Pub.
Comm.
Against
Torture
in
Isr.
v.
The
Gov’t
of
Isr.
[2006],
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf,
last
visited
July
7,
2010.
The
Israeli
Supreme
Court
stated
in
this
case
that
a
continuous
situation
of
armed
166
35
September 11 attacks of 2001 against Al-Qaida and its allies. In this sense, both countries
have incorporated the term into their domestic legislation and established a great deal of case
law involving terrorist unlawful combatants. Meanwhile other states and a growing number of
legal experts have also followed this state practice. However, it is of the utmost importance to
keep in mind that unlawful combatancy can only exist in a state of armed conflict. Terrorist
offences not amounting to a state of armed conflict or committed in peacetime must instead
be countered by a law enforcement approach, governed by criminal law and human rights
law. This distinction will be discussed more elaborately further on.
The recent campaign of the United States in Afghanistan, which was harboring the Al-Qaida
terrorist organization, illustrates the modern state practice of labeling terrorists as unlawful
combatants. In this conflict, which was triggered by the United States’ right to self-defense
pursuant to the September 11 attacks, the Bush administration did not grant prisoner of war
status to Al-Qaida or the Taliban at first.170 The Taliban was purportedly not deemed the
armed forces of Afghanistan and not even regarded as the de facto government of the failed
state. Al-Qaida on the other hand was a non-state actor and so neither could call on the
Geneva Conventions of 1949 as protection.171
This was certainly true for the unlawful combatants of Al-Qaida because, even when
considered as a militia, they did not comply with the requirements for prisoner of war status
as set in Article 4(A)(2) of the Third Geneva Convention.172 One could argue that Al-Qaida
has a chain of command (with Osama bin Laden as its leader), perhaps even that the terrorists
did have a distinctive sign, since there is an argument – however unlikely – to be made for the
conflict
had
existed
between
Israel
and
the
various
terrorist
organizations
active
in
Judea,
Samaria
and
the
Gaza
strip
since
the
first
intifada
in
1987.
170
George
W.
Bush,
“Humane
Treatment
of
al
Qaeda
and
Taliban
detainees”,
Memorandum
(February
7,
2002),
retrieved
at:
http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf,
last
visited
July
21,
2010.
171
D.
WEISSBRODT
&
A.
BERGQUIST,
“Methods
of
the
‘War
on
Terror’”,
Minnesota
Journal
of
International
Law,
16
Minn.
J.
Int’l
L.
371
(Summer
2007).
172
Note
that
the
reiteration
of
these
principles
in
Article
43
and
44
of
Additional
Protocol
I
is
not
binding
upon
the
United
States,
since
it
has
not
yet
ratified
the
treaty.
Instead,
article
4
of
the
Third
Geneva
Convention
continues
to
be
the
reference
point
for
prisoner
of
war
status
in
international
armed
conflict
involving
the
United
States.
36
underlying rationale of this requirement, which is to be recognizable.173 Be that as it may, the
terrorist organization irrefutably does not abide by the laws and customs of war (such as
refraining from unnecessary violence and destruction) nor carries its arms openly.174 More
importantly, Al-Qaida did not act on behalf of an entity that is a subject of IHL. As a 2005
Official Statement of the International Committee of the Red Cross confirms: “terrorist
groups acting on their own behalf and without the requisite link to a State or similar entity
are excluded from prisoner of war protections”.175 Private wars are excluded from the
protections of the Hague Regulations of 1907 concerning the laws and customs of war on
land, the Geneva Conventions of 1949 and Additional Protocol I of 1977.176
However, Afghan Taliban fighters represented the armed forces of Afghanistan so they did
not need to fulfill the four additional conditions in Article 4(A)(2) of the Third Geneva
Convention. The United States’ argument that Afghanistan was a failed state and therefore, it
need not grant the Taliban forces prisoner of war status is also contradicted by article 43 of
Additional Procol I. This article changes the issue of recognition from article 4(A)(2) in the
way that a Party to a conflict has to accord prisoner of war status to the armed forces of its
adversary in an international armed conflict, even if that Party does not recognize the
adversary’s government.177 Even though the United States has not ratified the Protocol, the
reiteration of these conditions in article 43 is widely considered to be customary IHL.
Therefore, this standpoint was later altered by granting Taliban soldiers prisoner of war status,
173
Ibid.;
During
their
classes
IHL
at
American
University,
Professors
H.
Parks
and
R.
Goldman
have
also
occasionally
dropped
the
question
of
who
the
U.S.
armed
forces
were
shooting
at,
if
Al‐Qaida
was
not
recognizable.
So
this
condition
does
not
necessarily
require
an
entire
uniform,
as
long
as
the
combatants
are
clearly
distinguishable
from
the
civilian
population.
174
T.
J.
BOGAR,
“Unlawful
combatant
or
innocent
civilian?
A
call
to
change
the
current
means
for
determining
the
status
of
prisoners
in
the
global
war
on
terror”,
Florida
Journal
of
International
Law,
21
Fla.
J.
Int’l
L.
29
(April
2009);
M.
C.
DORF,
Vice
Dean
and
Professor
of
Law,
Columbia
University,
“What
is
an
‘unlawful
combatant’,
and
why
it
matters:
The
status
of
detained
Al
Qaeda
and
Taliban
fighters”,
http://writ.news.findlaw.com/dorf/20020123.html,
last
visited
July
21,
2010.
175
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC
(21
July
2005),
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism‐ihl‐210705?opendocument,
last
visited
June
11,
2010.
176
Ibid.
177
M.
BOTHE,
K.
PARTSCH
&
W.
SOLF,
New
rules
for
victims
of
armed
conflict:
Commentary
on
the
two
protocols
additional
to
the
Geneva
Conventions
of
1949,
Boston,
Kluwer,
1982,
255.
37
just like was done for the Iraqi soldiers in the 2003 campaign against Saddam Hussein.178
Both the campaigns in Iraq and Afghanistan qualify as international armed conflicts in the
sense of Common Article 2 since the United States, Afghanistan and Iraq are all High
Contracting Parties to the Four Geneva Conventions of 1949.179
The former US administration has been criticized widely of using and even misusing to a
large extent the concept of unlawful combatancy as a political tool, subjected to the whims of
the executive branch, in and outside the state of armed conflict.180 As one professor
expressed: “The sharp criticism generated by the Executive’s decisions can be seen largely as
a self-inflicted wound that was as avoidable as it was foreseeable.”181 We will get into the full
extent of this category and its current applications later on in this dissertation.
3.2 Current
Definitions
for
Unlawful
Combatancy
As mentioned before, the term “unlawful combatant” does not appear in treaties of IHL,
sources of international public law or customary international law. This makes it very
challenging to construct a legal definition that fully captures the scope of this concept.
However, the term has been used habitually in case law and state practice for the past
decades.182 Accordingly, we will now chronologically turn to these official sources to get a
178
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring,
2005).
179
State
Parties
to
the
Following
International
Humanitarian
Law
and
Other
Related
Treaties
as
of
7
July
2010,
ICRC,
retrieved
at:
http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treati
es.pdf,
last
visited
July
21,
2010.
180
V.
BILKOVA,
“Talking
about
unlawful
combatants?
A
short
and
concise
assessment
of
a
Long
and
Multifaceted
Debate”,
Central
European
Journal
of
International
and
Security
Studies,
http://www.cejiss.org/assets/pdf/articles/vol3‐2/bilkova‐
talking_about_unlawful_combatants.pdf,
last
visited
July
21,
2010.
181
R.
K.
GOLDMAN
and
B.
D.
TITTEMORE,
“Unprivileged
combatants
and
the
hostilities
in
Afghanistan:
Their
status
and
rights
under
international
humanitarian
law
and
human
rights
law”,
The
American
Society
of
International
Law:
Task
Force
on
Terrorism,
2002,
p.
32,
as
retrieved
at:
http://www.asil.org/taskforce/goldman.pdf,
last
visited
February
25,
2010.
182
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
491;
K.
DORMANN,
“The
Legal
Situation
of
“Unlawful/Unprivileged
Combatants”,
International
Review
of
the
Red
Cross,
85
Int’l
Rev.
Red
Cross
45
(2003).
38
better grasp of how the notion of unlawful combatancy has been put into words concretely by
all three branches of government.
In ex parte Quirin, the aforementioned 1942 case in which the US Supreme Court endorsed
the use of military commissions on German soldiers who were accused of spying on behalf of
Germany, the Supreme Court explained the basics of unlawful combatancy. The decision
reads:
“By universal agreement and practice the law of war draws a distinction between the
armed forces and the peaceful populations of belligerent nations and also between
those who are lawful and unlawful combatants. Lawful combatants are subject to
capture and detention as prisoners of war by opposing military forces. Unlawful
combatants are likewise subject to capture and detention, but in addition they are
subject to trial and punishment by military tribunals for acts which render their
belligerency unlawful.”183
The Supreme Court continues by saying that spies and enemy combatants who do not wear a
uniform are familiar examples of combatants “who are generally deemed not to be entitled to
the status of prisoners of war, but to be offenders against the law of war subject to trial and
punishment by military tribunals”.184 Further on, the Court draws the conclusion that
unlawful combatancy is an actual de jure category from the recognition of lawful combatants’
entitlement to prisoner of war status, because it leads to the negative implication that there is a
class of unlawful combatants who are not entitled to that privilege, including those
combatants who do not wear a fixed and distinctive sign.185
In 2002, Israel became the first country to pass a law on the punishment of an unlawful
combatant.186 The “Incarceration of Unlawful Combatants Law” specifically targets
“unlawful combatants not entitled to prisoner of war status” and defines one as
“a person who has participated either directly or indirectly in hostile acts against the
183
US
Supreme
Court,
Ex
Parte
Quirin,
317
US
1,
31
(1942).
Ibid.
185
Ibid.,
35.
186
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
491.
184
39
State of Israel or is a member of a force perpetrating hostile acts against the State of
Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of
12th August 1949 with respect to prisoners-of-war and granting prisoner-of-war status
in international humanitarian law, do not apply to him”.187
Also in 2002, an Israeli district court handed down an important precedent with State of Israel
vs. Marwan Barghouti. First, the court reaffirmed that “international law distinguishes
between two groups of combatants who undertake hostile actions against the State of Israel”,
meaning combatants can be either lawful or unlawful.188 Then it defined the second category
of unlawful combatants as consisting of “members of terrorist organizations and enemy
forces that take part in acts of terror and hostility against Israelis and Israel, but who, in
apprehension, are not entitled to the status of prisoners of war”.189 Marwan Barghouti was
considered a terrorist who attacks civilians, does not meet the requirements for lawful
combatancy and therefore he would not fall within the framework of lawful combatants
entitled to prisoner of war status.190
It must be noted that “enemy combatant”, a term the US government has turned to after
September 11, does not have any particular meaning in international law. According to the
ICRC, this particular phrasing just refers to a member of the opposing Party to a conflict who
takes part in hostilities, be it lawful or unlawful.191 Therefore we can assume that the term
“unlawful enemy combatant” just points to an illegal belligerent.192
In Hamdi v. Rumsfeld, the United States Supreme Court wrote: “There is some debate as to
the proper scope of this term, and the Government has never provided any court with the full
187
Incarceration
of
Unlawful
Combatants
Law,
5762‐2002,
par.
2
al.
2.
District
Court
Tel
Aviv,
State
of
Israel
vs.
Marwan
Barghouti,
Dec.
12,
2002,
available
at:
http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2002/12/State%20of%20Israel%20vs
%20Marwan%20Barghouti‐%20Ruling%20by%20Jud,
last
visited
July
10,
2010.
189
Ibid.
190
Ibid.
191
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC
(21
July
2005),
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism‐ihl‐210705?opendocument,
last
visited
June
11,
2010.
192
As
Professor
Hays
Parks
quite
explained
to
his
IHL
class
at
American
University
–
Washington
College
of
Law
(Spring
Semester
2009):
“It’s
just
catchy.”
188
40
criteria that it uses in classifying individuals as such”.193 The Court then puts forth its own
definition of what constitutes unlawful combatancy. An “enemy combat” that the United
States government is “seeking to detain” – hence an unlawful combatant – is defined as an
individual who was “part of or supporting forces hostile to the United States or coalition
partners in Afghanistan and who engaged in an armed conflict against the United States
there”.194
In 2005, the US Department of Defense instated the Combatant Status Review Tribunals
(CSRTs) so that detainees could challenge their status as “enemy combatants” and with it,
gave the first official American definition of an “unlawful (enemy) combatant”. The term was
described as an individual who “was part of or supporting Taliban or Al-Qaida forces, or
associated forces that are engaged in hostilities against the United States or its coalition
partners. This includes any who has committed a belligerent act or has directly supported
hostilities in aid of enemy forces”. This definition was obviously based on the one given by
the Supreme Court in Hamdi, yet with the addition of “associated forces” and the equation of
support with participation in hostilities.195 This language amplified the scope of the term
substantially, making it vulnerable to criticism and the rejection by several federal judges.
One court found that the expansion was considerably invasive of due process rights because
persons who never committed a belligerent act or supported one against the US would also be
covered by the CSRT definition.196 One example that was given involved “a little old lady in
Switzerland” that could be designated as an enemy combatant because she financially
supports what she thinks is an orphanage in Afghanistan, but really is a front to finance AlQaida activities.197
193
US
Supreme
Court,
Hamdi
v.
Rumsfeld,
542
U.S.
507,
at
II,
para.
1
(2004)
as
retrieved
at
http://www.law.cornell.edu/supct/html/03‐6696.ZO.html,
last
visited
July
19,
2010.
194
Ibid.
195
A.
M.
DANNER,
“Defining
unlawful
enemy
combatants:
a
centripetal
story”,
Texas
International
Law
Journal,
43
Tex.
Int’l
L.J.
1
(Fall
2007).
196
J.
K.
ELSEA
&
M.
J.
GARCIA,
“Enemy
Combatant
Detainees:
Habeas
Corpus
Challenges
in
Federal
Court”,
Congressional
Research
Service
(February
3,
2010),
http://www.fas.org/sgp/crs/natsec/RL33180.pdf,
last
visited
June,
2010.
197
United
States
District
Court
for
the
District
of
Columbia,
In
re
Guantanamo
Detainee
Cases,
355
F.
Supp.2d
443,
475
(2005);
A.
M.
DANNER,
“Defining
unlawful
enemy
combatants:
a
centripetal
story”,
Texas
International
Law
Journal,
43
Tex.
Int’l
L.J.
1
(Fall
2007).
41
One year later, the United States Congress adopted yet another broad understanding of the
term via its Military Commissions Act of 2006, which defined the concept of an “unlawful
enemy combatant” in two parts: one substantive and one process-based198:
“(i) a person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the Taliban, Al-Qaida, or
associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military
Commissions Act of 2006, has been determined to be an unlawful enemy combatant
by a Combatant Status Review Tribunal or another competent tribunal established
under the authority of the President or the Secretary of Defense.”199
The substantive part of this definition keeps to the notion that supporting hostilities is
equivalent to actually engaging in hostilities, although it does add the requirement of having
“purposefully and materially” supported hostilities. The addition should allow the “little old
lady in Switzerland” to not run any risk of being qualified as an unlawful enemy combatant.
With President Obama later taking office, the Military Commissions Act of 2006 was
amended into a new law, called the Military Commissions Act of 2009.200 First of all, the new
administration tried to distance itself from the Bush era by replacing the “unlawful enemy
combatant” label with “unprivileged enemy belligerent”. This term is then defined as:
“an individual (other than a privileged belligerent) who –
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or
its coalition partners; or
(C) was a part of al Qaeda at the time of the alleged offense under this chapter.”201
198
Ibid.
Military
Commissions
Act
of
2006,
Pub.
L.
No.
109‐366,
120
Stat.
2600
(Oct.
17,
2006).
200
National
Defense
Authorization
Act
for
Fiscal
Year
2010,
Pub.
L.
111‐84,
123
Stat.
2190,
enacted
October
28,
2009.
201
Ibid.,
981.
199
42
As discussed, the expressions “unlawful combatant” or “unprivileged combatant” essentially
point to one and the same concept, and the term “enemy combatant” does not stand for
anything other than a combatant of the enemy forces under IHL. So far no real change can be
accounted for. The first and second grounds for unprivileged belligerency also remain roughly
the same as in 2006. The novelty of this definition lies in the third separate ground, which
causes sole membership of Al-Qaida to be sufficient grounds for classification as an
unprivileged enemy belligerent. In 2006, membership of Al-Qaida, the Taliban, or associated
forces was still only a factor in determining who supported or engaged in hostilities against
the US or its coalition partners. Yet noticeably, the Taliban is left out of the new definition.
This omission may be indicative of the country’s growing reluctance of dragging the war in
Afghanistan on much longer.
3.3 Conclusion
We have established that, stemming from state practice and legal literature, the unlawful
combatant category has been used and applied in many different ways and circumstances.
These different types of unlawful combatants all have in common that they do not follow the
rules for favored treatment as a prisoner of war upon capture.202 The term “unlawful
combatant” has been consistently used to indicate that a person does not have the combatant’s
privilege and therefore is not entitled to participate in hostilities. Given the possible life or
death consequences of these status classifications, any Detaining Power must respect that
article 5 of the Third Geneva Convention dictates that in case of doubt involving someone’s
legal status, that person shall enjoy the protections of the convention until a competent
tribunal determines otherwise.
Ultimately due to the fact that the phrase does not appear in treaties of IHL, we had to turn to
domestic legislative sources and case law to more concretely define the unlawful combatant
status’ proper scope. The most recent use of unlawful combatancy concerns terrorist
202
R.
R.
BAXTER,
“So‐called
‘Unprivileged
Belligerency’:
Spies,
Guerrillas,
and
Saboteurs”,
British
Yearbook
of
International
Law,
28
Brit.
Y.B.
Int’l
L.
323
(1951).
202
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC
(21
July
2005),
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism‐ihl‐210705?opendocument,
last
visited
June
11,
2010.
43
involvement in international armed conflicts, which has lead to a considerable amount of case
law and state practice specifically tailored to these sorts of conflicts. Which frameworks apply
to this “new” type of unlawful combatant and how these have already been applied in court,
will be the topic of discussion in our next chapters.
44
4 Legal
Frameworks
regarding
Unlawful
Combatants
and
Terrorism
“This was not an act of terrorism, but it was an act of war.”
George W. Bush
4.1 Wartime:
International
Humanitarian
Law
In wartime, a different set of rules governs than in peacetime. In applying these rules in
relation to terrorists who have been labeled unlawful combatants under IHL, we have no other
option than to look for guidance in currently employed legal frameworks due to the relatively
modern link between terrorism and IHL. In this next chapter we will first touch upon this
affiliation. Looking closer at the military paradigm, we will then discuss America’s assertion
of a “Global War on Terror” and the Israeli approach in its conflict with Palestinians, since
these are the leading two nations in utilizing the unlawful combatant category in connection
with terrorism. Next, we will deal with the condition of an “armed conflict” in order to apply
the military paradigm and consequently international humanitarian law to terrorist
organizations, which are essentially non-state actors. Lastly, more specific consideration will
be given to the particularly controversial revival of military tribunals in trying this type of
unlawful combatant.
4.1.1 Terrorism in IHL
When terrorist attacks occur in the situation of an armed conflict, IHL is applicable. A core
principle of IHL appertains to the requirement to distinguish between combatants and
civilians, which conflicts with the very definition of terrorism. Furthermore, Additional
Protocols I and II both contain an express provision prohibiting all acts aimed at spreading
45
terror among the civilian population.203 Also, IHL describes a series of other prohibited acts
that are likely to constitute a terror attack, such as the prohibition of attacks on places of
worship or the prohibition of attacks on civilians or civilian objects.204
4.1.2 The military paradigm
4.1.2.1 The
“War
on
Terror”
In the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon
by Al-Qaida forces, former United States President George W. Bush declared a state of
national emergency and the United States Congress approved the Authorization of Military
Force205 with a bipartisan vote, triggering the full range of presidential military powers206 and
the employment of the United States armed forces against those responsible for the attacks.207
A few weeks later, on October 7th, the armed conflict in Afghanistan was initiated, targeting
Al-Qaida and the sanctuary it received from the Taliban.208 In addition, on November 13,
2001, the Presidential Military Order furnished the American president with the power to
detain persons, suspected of connection to terrorism as “unlawful combatants” and to try
203
“International
Humanitarian
Law:
Answers
to
your
questions”,
ICRC
publication,
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0703/$File/ICRC_002_0703.PDF!Open,
last
visited
July
15,
2010.
Prohibited
acts
such
as:
Art.
51,
para.
2,
Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
relating
to
the
Protection
of
Victims
of
International
Armed
Conflicts
(Protocol
I),
8
June
1977;
Article
13,
para.
2,
Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
relating
to
the
Protection
of
Victims
of
Non‐International
Armed
Conflicts
(Protocol
II),
8
June
1977.
204
Art.
53
Protocol
1,
Art.
16
Protocol
II.
Other
examples
are:
the
prohibition
of
attacks
on
civilians
and
civilian
objects
(Art.
51,
para.
2
and
art.
52
Protocol
I,
Article
13
Protocol
II),
prohibition
of
indiscriminate
attack
(Art.
51,
para.
4
Protocol
I),
the
taking
of
hostages
(Art.
75
Protocol
I;
Common
Article
3
and
Art.
4,
para.
2a
Protocol
II).
205
Authorization
for
Use
of
Military
Force
Against
Terrorists,
Publ.
L.
107‐40,
115
Stat.,
enacted
Sept.
18,
2001.
206
The
American
President
as
Commander
in
Chief
has
the
power
to
take
immediate
action
in
defense
of
the
nation,
not
taking
away
from
the
authority
of
the
U.S.
Congress
to
engage
the
nation
in
extended
armed
conflict.
207
S.
CHAMBLISS,
“The
future
of
detainees
in
the
global
war
on
terror:
a
U.S.
policy
perspective”,
University
of
Richmond
Law
Review,
43
U.
Rich.
L.
Rev.
821
(March
2009).
208
Ibid.
46
those suspected terrorists in military commissions.209 It was not long before the administration
exercised its authority and as a result changed its entire legal framework for battling terrorism
radically by conflating terrorism and armed conflict into one. Following the invasion of
Afghanistan and Iraq, hundreds of people were transferred to the US military naval base at
Guantanamo Bay (also referred to as Guantanamo, Gitmo or GTMO210), where they remained
in prolonged preventative detention. After years of turmoil over the Guantanamo military
commissions and the United States detainee treatment policy, due to the self-proclaimed
“Global War on Terror”, there is still not much clarity about how terrorism fits in with
international humanitarian law. What exactly the framework can and should be is the question
presented here. The switch from dealing with terrorism as a civil law enforcement matter to
treating it as a war, as to invoke all of the wartime powers of the president, possibly calls for
the formation of a new legal system to deal with the consequences.
In his 2004 State of the Union Address to Congress, former President George W. Bush made
it clear that the War on Terror should be interpreted literally as war in the legal sense rather
than metaphorically. He stated:
“I know that some people question if America is really in a war at all. They view
terrorism more as a crime, a problem to be solved mainly with law enforcement and
indictments. After the World Trade Center was first attacked in 1993, some of the
guilty were indicted and tried and convicted and sent to prison. But the matter was not
settled. The terrorists were still training and plotting in other nations and drawing up
more ambitious plans. After the chaos and carnage of September the 11th, it is not
enough to serve our enemies with legal papers. The terrorists and their supporters
declared war on the United States. And war is what they got.”211
Many argue that “the administration probably took no step more controversial than holding
captives neither as criminal suspects nor as prisoners of war, but in indefinite detention as
209
Detention,
Treatment
and
Trial
of
Certain
Non‐Citizens
in
the
War
Against
Terrorism,
66
Fed.
Reg.
57833
(2001).
210
Military
abbreviation
for
the
detainment
facilities
at
Guantanamo
Bay,
Cuba.
211
President
George
W.
Bush,
State
of
the
Union
Address
(Jan.
20,
2004),
http://www.washingtonpost.com/wp‐srv/politics/transcripts/bushtext_012004.html,
last
visited
July
6,
2010.
47
“unlawful enemy combatants”.”212 After all, this was a war that was not considered when
drafting the Geneva Conventions of 1949 and therefore this new enemy would certainly not
be entitled to protection under those Conventions like regular lawful combatants.213
President Obama, although taking a different course than his predecessor by ordering the
closure of the prison camp at Guantanamo Bay and banning the use of so-called enhanced
interrogation techniques, stated a similar phrase in his National Security Remarks: “Now let
me be clear: We are indeed at war with Al-Qaida and its affiliates”.214 The President then
goes on by describing the available options in handling the cases at Guantanamo. One of the
categories constitutes of “detainees who cannot be prosecuted yet who pose a clear danger to
the American people”. Concerning this category President Obama distinctly comments:
“These are people who, in effect, remain at war with the United States”.
Regardless, in declaring its war on terror the United States has failed to make the legal
distinction between terrorist acts within an armed conflict or outside it.215 It is a given that
IHL only applies when there is a situation of armed conflict according to objective criteria
recognized under international law. Terrorist acts committed outside the bounds of an armed
conflict are not regulated by IHL, but governed by domestic or international criminal law and
international human rights law.216 Many prominent jurists share the opinion that the war
paradigm is a misapprehension of IHL and has insufficient legal grounds to hold.217 Terrorist
acts with transnational elements do not necessarily amount to a state of armed conflict in the
legal sense of the term, although they do have the ability of triggering the right to self-defense
212
B.
WITTES,
The
Law
and
the
Long
War:
The
Future
of
Justice
in
the
Age
of
Terror,
New
York,
London,
The
Penguin
Press,
2008,
30.
213
“Assessing
Damage,
Urging
Action:
Report
of
the
Eminent
Jurists
Panel
on
Terrorism,
Counter‐Terrorism
and
Human
Rights”,
An
initiative
of
the
International
Commission
of
Jurists,
Spring
2009,
http://icj.org/IMG/EJP‐report.pdf,
last
visited
July
15,
2010.
214
President
Barack
Obama,
Remarks
by
the
President
on
National
Security
(May
21,
2009),
http://www.whitehouse.gov/the‐press‐office/remarks‐president‐national‐security‐5‐21‐09,
last
visited
July
6,
2010.
215
V.
P.
NANDA,
“Introductory
essay:
International
law
implications
of
the
United
States’
‘War
on
Terror’”,
Denver
Journal
of
International
Law
and
Policy,
37
Denv.
J.
Int’l
L.
&
Pol’y
513
(Fall
2009).
216
“Assessing
Damage,
Urging
Action:
Report
of
the
Eminent
Jurists
Panel
on
Terrorism,
Counter‐Terrorism
and
Human
Rights”,
An
initiative
of
the
International
Commission
of
Jurists,
Spring
2009,
http://icj.org/IMG/EJP‐report.pdf,
last
visited
July
15,
2010.
217
Ibid.
48
as a legitimate reason to engage in armed hostilities, which is a matter of ius ad bellum. The
phrase “(Global) War on Terror” therefore can only have legal significance in terms of
international law during situations of armed conflict, such as the armed hostilities following
the invasion of Afghanistan in October 2001 or those that began in Iraq in March 2003.
Practically the “War on Terror” is so broad and all encompassing that it would probably reach
far past just the specific campaigns in Iraq and Afghanistan. It is difficult to argue that this
was Congress’s intent when it voted on the AUMF.
In addition, the assertion of fighting a global war on terror is problematic because the armed
activities following the September 11 attacks were in reality initiated as a matter of selfdefense. This is the inherent unilateral right of every state to use military force if an armed
attack occurs against that state, recognized by Article 51 of the UN Charter and entrenched in
international customary law.218 In the case of the September 11 attacks this right has been
specifically recognized for the US in Security Council Resolutions 1368 and 1373, both on
the subject of the combat of threats to international peace and security caused by terrorist
acts.219 However, the armed conflict in Afghanistan was in fact waged against Al-Qaida, and
the Taliban regime that harbored that terrorist organization, not random terrorists all over the
world. Limiting the right of self-defense to the attackers and their allies might have been a
more bona fide way for the United States to have exercised its right to self-defense.220 But
even then, the “War on Terror” appears to be overly broad to construe who precisely is the
enemy.
In their 2004 report, the Secretary-General’s High-Level Panel on Threats, Challenges and
Change has put forward ‘legitimacy criteria’ for the Security Council to always address in
considering whether to authorize or endorse the use of military force.221 Besides whatever
other considerations the Security Council may take into account, the five basic criteria of
legitimacy are seriousness of threat, proper purpose, last resort, proportional means and
218
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
469.
Resolution
1368
of
the
Security
Council
of
the
UN
(12
September
2001),
UN
Doc.
S/RES/1368
(2001);
Resolution
1373
of
the
Security
Council
of
the
UN
(28
September
2001),
UN
Doc.
S/RES/1373
(2001).
220
D.
GLAZIER,
“Playing
by
the
rules:
combating
Al‐Qaida
within
the
law
of
war”,
William
and
Mary
Law
Review,
51
Wm.
&
Mary
L.
Rev.
957
(Dec.
2009).
221
“A
more
secure
world,
our
shared
responsibility”,
Report
of
the
High‐Level
Panel
on
Threats,
Challenges
and
Change,
2004,
full
report
online:
http://www.un.org/secureworld/report2.pdf,
last
visited
July
9,
2010.
219
49
balance of consequences.222 Military action as an act of self-defense against a terrorist
organization will correspondingly be considered as a permissible alternative when the
organization is supported by a state, thereby rendering the law enforcement approach
unworkable.223 Such a “war by proxy” is established when transnational terrorist networks
intermingle with states to conduct hostilities as was the case when the state of Afghanistan
granted a safe haven to Al-Qaida prior and subsequent to the September 11 attacks.224
The esteemed legal scholar Ronald Dworkin pushes this point further in his “principled
approach” by linking the two strategies closer together. He agrees that terrorists should be
pursued first and foremost as criminals by means of the law enforcement approach, but if that
approach proves to be inadequate a military campaign can be justified.225 Whilst Dworkin’s
point of view is debatable, there is broad consensus that Al-Qaida terrorists had indeed
become unlawful combatants under international humanitarian law in the “war by proxy”
scenario.226 Yet reluctant to Dworkin’s reasoning, the ICRC stresses that terrorist
organizations acting independently and without a vital connection to a state remain common
criminals, not soldiers.227
Contrary to the logical reasoning in wartime, the so-called “American Taliban” John Walker
Lindh, an American citizen and enemy combatant who was fighting alongside the Taliban
during the invasion of Afghanistan in 2001 hence someone who obviously could have been
tried as any other unlawful combatant before military commissions, was instead criminally
prosecuted for supporting the Taliban and Al-Qaida and as a result convicted to twenty years
in prison.228 This case is descriptive of the unclear line that has displayed itself in US policy
concerning unlawful combatants for the past decade. Yet in spite of these issues, it becomes
222
Ibid.
One
can
imagine
that
a
failed
state
powerless
to
act
against
terrorists
on
its
territory
would
also
be
sufficient
to
render
the
law
enforcement
approach
practically
ineffective.
224
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
469.
225
J.
B.
FALK,
“The
Global
War
on
Terror
and
the
Detention
Debate:
The
applicability
of
Geneva
Convention
III”,
Journal
of
International
Law
&
Relations,
3
J.
Int’l
L.
&
Int’l
Rel.
31
(Spring
2007).
226
M.
COGEN,
“The
Impact
of
International
Humanitarian
Law
on
Current
Security
Policy
Trends”,
http://www.crimesofwar.org/expert/attack‐cogen.html,
last
visited
June
11,
2010.
227
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC
(21
July
2005),
http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism‐ihl‐210705,
last
visited
June
11,
2010.
228
U.S.
Department
of
Justice,
US
v.
John
Lindh,
Statement
of
Facts,
http://www.justice.gov/ag/statementoffacts.htm,
last
visited
July
6,
2010.
223
50
clear that outside the situation of an armed conflict, the denomination of a “Global War on
Terror” only covers a political load and a military response is even considered to be illegal
under international law.229
4.1.2.2 The
Israeli
Occupation
Another country that has long employed the military paradigm alongside with regular
criminal prosecution in civilian court is Israel in dealing with Palestine. Since the beginning
of the Israeli occupation thousands of Palestinians have been arrested by the Israeli army in
the Occupied Territories and judged by the Israeli military courts, the first ones dating back to
1967 when the occupation started.230 Because of the exceptional situation, civilians may be
tried here by the Israeli military legal system in criminal and security matters but naturally the
limits as defined by international humanitarian law must be applied meticulously.
Article 2 common to the four Geneva Conventions of 1949 makes the laws of international
armed conflict applicable to “all cases of partial or total occupation of the territory of a High
Contracting Party”, and the Fourth Geneva Convention specifically includes protection for
civilians in occupied territory until “the general close of military operations”.231 Although
there has been ambiguity about the designation of the territories invaded by Israel during the
Six-Day War in 1967 as occupied territory under IHL and outright rejection of the
applicability of the Fourth Geneva Convention by Israel itself232, the ICRC and UN and many
human rights organizations have always upheld that the conflict is governed by the
international humanitarian law provisions applicable to belligerent occupation.233 Israel has
229
Ibid.
S.
WEILL,
“The
judicial
arm
of
the
occupation:
the
Israeli
military
courts
in
the
occupied
territories”,
International
Review
of
the
Red
Cross,
Vol.
89
No.
866
(June
2007);
231
Art.
2
and
6
of
Convention
(IV)
relative
to
the
Protection
of
Civilian
Persons
in
Time
of
War.
Geneva,
12
August
1949.
232
The
Geneva
Convention,
BBC
News
(Dec.
10,
2009),
http://news.bbc.co.uk/2/hi/in_depth/middle_east/israel_and_the_palestinians/key_docum
ents/1682640.stm;
H.
GRIEF,
“The
Question
of
the
Applicability
of
the
Fourth
Geneva
Convention
on
Occupation
to
Judea,
Samaria
and
Gaza”,
22
Sept.
2008,
http://www.acpr.org.il/nativ/0811‐4%20hgriefE.pdf,
URL’s
last
visited
July
21,
2010.
233
Conference
of
the
High
Contracting
Parties
to
the
Fourth
Geneva
Convention:
Statement
by
the
International
Committee
of
the
Red
Cross
(Geneva,
Dec.
5,
2001),
http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList247/D86C9E662022D64E41256C6800366
D55#2;
“The
Conflict
in
Gaza”,
Amnesty
International,
230
51
been criticized for breaching its jurisdiction, violations of the international requirements for a
fair trial, not respecting provisions of the Fourth Geneva Convention concerning civilians in
occupied territory, the illegal transfer of parts of its population into the occupied territories
and trying cases in military courts when they really belong in civil court.234
Marwan Barghouti, a notable Palestinian political figure who was, among other crimes,
prosecuted and convicted on charges of murder based on his coordination as leader of a
terrorist organization of several terrorist attacks on Israeli citizens, was instead tried in an
open civilian court.235 Barghouti’s defense argued that the Tel Aviv District Court could not
try him because he should be granted prisoner of war status pursuant to the Third Geneva
Convention, but the judge responded that Mr. Barghouti does not meet the criteria for prisoner
of war status since he had acted as an unlawful combatant liable to penal sanctions under
domestic law.236 The court also mentioned that the detention and prosecution of Barghouti
accrues from Israel’s right to self-defense and added that the international customary rules
relating to armed conflicts authorize the Israeli armed forces, for the purpose of protecting
Israel’s civilian population, not only to go and fight those threatening it wherever they may be
but also to arrest and detain them.237
It so appears from its jurisprudence and case law, that Israel is also still very much searching
for the appropriate legal framework to try unlawful combatants and much like the United
http://www.amnesty.org/en/library/asset/MDE15/007/2009/en/4c407b40‐e64c‐11dd‐
9917‐ed717fa5078d/mde150072009en.html#1.Introduction|outline;
Human
Rights
Council
Special
Session
on
the
Occupied
Palestinian
Territories,
July
6,
2006,
written
statement,
Human
Rights
Watch,
http://www.hrw.org/en/news/2006/07/05/human‐rights‐council‐
special‐session‐occupied‐palestinian‐territories‐july‐6‐2006;
Resolution
471
of
the
Security
Council
of
the
UN
(5
June
1980),
2226th
meeting;
Resolution
607
of
the
Security
Council
of
the
UN
(5
Jan.
1988),
2780th
meeting.
Aforementioned
resolutions
retrieved
at
http://www.un.org/documents/scres.htm.
Resolution
799
of
the
Security
Council
of
the
UN
(18
Dec.
1992),
UN
Doc.
S/RES/799
(2002).
All
URL’s
last
visited
July
21,
2010.
234
Ibid.
235
E.
BAZELON,
“Stealing
the
show”,
Legal
Affairs
Magazine,
available
at:
http://www.legalaffairs.org,
last
visited
May
3,
2010.
236
“The
trial
of
Mr.
Marwan
Barghouti”,
Report
by
Mr.
Simon
Foreman,
Inter‐Parliamentary
Union,
http://www.ipu.org/hr‐e/174/report.htm,
last
visited
May
3,
2010.
237
Ibid.;
District
Court
Tel
Aviv,
State
of
Israel
vs.
Marwan
Barghouti,
Dec.
12,
2002,
available
at:
http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2002/12/State%20of%20Israel%20vs
%20Marwan%20Barghouti‐%20Ruling%20by%20Jud,
last
visited
July
10,
2010.
52
States, faces a considerable amount of opposition from the international community. This
only indicates that there is still a need to establish clearer legal guidelines relating to terrorism
in situations of armed conflict or occupation, preferably on an international level.
4.1.3 Prerequisite of a state of armed conflict
A paramount point of discussion when making the distinction from the law enforcement
approach, pertains to the prerequisite of an “armed conflict” in order to apply the military
paradigm and consequently the laws of war to terrorist organizations. Defining each conflict
with a non-state actor such as a terrorist organization, be it in an international or noninternational context, is vital for the applicability of IHL provisions. So what exactly amounts
to an armed conflict with a non-state actor?
The 1969 Vienna Convention on the Law of Treaties upholds that only States may become
parties to international treaties, not non-state groups or other subjects of international law.238
But if non-state groups are neither a party to the Geneva Conventions or the Additional
Protocols, a certain risk of such groups falling into complete lawlessness, without
accountability, is created. According to the ICRC however, the Geneva Conventions and their
Additional Protocols apply to all parties of an armed conflict including non-state actors.239
Protocol II, supplementing Common Article 3 on non-international armed conflicts, also gives
four basic requirements for dissident armed forces or other organized armed groups. These
must be led by a responsible command, have some territorial control, be able to carry out
military operations and to implement Protcol II.240 In the Tablada case, the Inter-American
Commission on Human Rights has stated that “Common Article 3’s mandatory provisions
expressly bind and apply equally to both parties to internal conflicts, i.e. government and
dissident forces”.241 It was concluded that therefore, both the Argentine national armed forces
238
Vienna
Convention
on
the
Law
of
Treaties,
23
May
1969,
UN,
Treaty
Series,
vol.
1155,
p.
331.
239
“International
Humanitarian
Law:
Answers
to
your
questions”,
ICRC
publication,
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0703/$File/ICRC_002_0703.PDF!Open,
last
visited
July
15,
2010.
240
Art.
1(1)
of
the
1977
Protocol
Additional
to
the
Geneva
Conventions
of
12
August
1949,
and
relating
to
the
Protection
of
Victims
of
Non‐International
Armed
Conflicts
(Protocol
II).
241
L.
ZEGVELD,
Accountability
of
Armed
Opposition
Groups
in
International
Law,
Cambridge,
Cambridge
University
Press,
2002,
10.
53
and the armed opposition group “Movimiento Todos por la Patria” (MTP) had the same duties
under IHL.242 The case concerned an attack on military barracks of the national armed forces
of Argentina in La Tablada, Agentina, by forty-two armed members of the armed opposition
group in question.243
When ratifying Additional Protocol I to the Geneva Conventions in 1998, the United
Kingdom explicitly stated that “it is the understanding of the United Kingdom that the term
‘armed conflict’ of itself and in its context denotes a situation of a kind which is not
constituted by the commission of ordinary crimes including acts of terrorism whether
concerted or in isolation”.244 But this war against Al-Qaida and its allies - as General David
Petraeus, commander of allied forces in Iraq, has said - is surely not the type of war in which
you take a hill and plant a flag and declare victory.245 Instead it is a 21st century war and
therefore requires a 21st century legal framework and mindset.
In its Tadic case, the International Criminal Tribunal for the former Yugoslavia also seems to
suggest that war against a terrorist group can result in an actual armed conflict.246 The
Tribunal establishes a type of test by defining the existence of an armed conflict, as
“whenever there is a resort to armed force between States or protracted armed violence
between governmental authorities and organized armed groups or between such groups
within a State.”247 This test, which was endorsed by the ICRC and and the Rome Statute of
the ICC248, was confirmed ten years later in the Haradinaj judgment, in which the ICTY came
back to this definition by ruling on the “protracted armed violence” criterion, where the
242
Ibid.
L.
ZEGVELD,
“The
Inter‐American
Commission
on
Human
Rights
and
international
humanitarian
law:
A
comment
on
the
Tablada
Case”,
International
Review
of
the
Red
Cross,
1998,
no.
324,
p505‐511.
244
Letter
sent
to
the
Swiss
Government
by
Christopher
Hulse,
HM
Ambassador
of
the
United
Kingdom
(Jan.
28,
1998),
available
at:
http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument
,
last
visited
July
13,
2010.
245
No
victory
in
Iraq
says
Petraeus,
BBC
News,
http://news.bbc.co.uk/2/hi/7610405.stm,
last
visited
July
13,
2010.
246
L.
C.
GREEN,
The
Contemporary
Law
of
Armed
Conflict,
New
York,
Juris
Publishing
Inc.,
2000
(second
ed.),
43.
247
ICTY,
Prosecutor
v.
Dusko
Tadic,
Decision
on
the
Defense
Motion
for
Interlocutory
Appeal
on
Jurisdiction,
Oct.
2,
1995,
Case
No.
IT‐94‐1‐AR72,
para.
70.
248
A.
PAULUS
&
M.
VASHAKMADZE,
“Assymetrical
war
and
the
notion
of
armed
conflict
–
a
tentative
conceptualization”,
International
Review
of
the
Red
Cross,
March
2009,
Vol.
91
No.
873,
95‐125.
243
54
reached intensity of disturbances was considered key, and more importantly for our question,
the “organization” criterion.249 Regarding to this last criterion, the ICTY determined that “an
armed conflict can exist only between parties that are sufficiently organized to confront each
other with military means”.250 Specifically for non-state armed groups the Tribunal then sets
forth several indicative factors to achieve that level of confrontation, which include “the
existence of a command structure and disciplinary rules and mechanisms within the group,
the existence of a headquarters, the fact that the group controls a certain territory; the ability
of the group to gain access to weapons, other military equipment, recruits and military
training; its ability to plan, coordinate and carry out military operations, including troop
movements and logistics; its ability to define a unified military strategy and use military
tactics; and its ability to speak with one voice and negotiate and conclude agreements such as
cease-fire or peace accords”.251 On the basis of these indicators, it was then concluded that
the Kosovo Liberation Army qualified as an armed organized group in the meaning of the
Tadic test, since the “organization” criterion had been fulfilled in making the determination
whether a non-international armed conflict existed in Kosovo between the KLA and Serbian
forces.252
The ICTY has in fact taken a fairly flexible approach to what constitutes a non-state armed
organized group and therefore could trigger the application of Common Article 3 of the
Geneva Conventions of 1949253, which leads to wonder how the test can be applied to
conflicts other than the one in former Yugoslavia. In point of fact, general opinion says that
wars can be fought against non-state actors, as long as those actors are well defined and
identifiable.254 Hypothetically speaking, it is probable that the ICTY would find a wellorganized group like Al-Qaida - which has training camps, a chain of command and is highly
249
ICTY,
Prosecutor
v.
Ramush
Haradinaj,
Idriz
Balaj
and
Lahi
Brahimaj,
Judgement,
April
3,
2008,
Case
No.
IT‐04‐84‐T.
250
Ibid.,
para.
60.
251
Ibid.,
para.
60.
252
Ibid.,
para.
89.
253
A.
CULLEN
&
M.
D.
ÖBERG,
“The
International
Criminal
Tribunal
for
the
former
Yugoslavia
and
the
Threshold
of
Non‐International
Armed
Conflict
in
International
Humanitarian
Law”,
American
Society
of
International
Law,
Vol.
12
Iss.
7
(April
23,
2008),
available
at:
http://www.asil.org/insights080423.cfm#_edn1,
last
visited
July
14,
2010.
254
D.
GLAZIER,
“Playing
by
the
rules:
combating
Al‐Qaida
within
the
law
of
war”,
William
and
Mary
Law
Review,
51
Wm.
&
Mary
L.
Rev.
957
(Dec.
2009).
55
militarized – to fulfill most if not all of the indicators.255 An international terrorist network
that has already planned and executed dozens of attacks and although decentralized, clearly
possesses a certain hierarchy. In application of the definition given by the ICTY, one could
certainly come to the conclusion that a “war” against Al-Qaida alone could indeed qualify as
a non-international armed conflict in the legal sense, triggering the application of some of the
provisions of IHL.256 Be that as it may, this claim is still highly controversial. As one
professor explained:
“The United States cannot be at “war” with bin Laden and Al-Qaida as such. Bin Laden
was never the leader or member of a state, nation, belligerent, or insurgent group (as
those entities are understood in international law) that was at war with the United States.
Armed attacks by non-state, non-nation, non-belligerent, non-insurgent actors like bin
Laden and members of Al-Qaida can trigger the right of selective and proportionate
self- defense under the UN Charter against those directly involved in processes of
armed attack, but even the use of military force by the United States merely against bin
Laden and Al-Qaida in foreign territory would not create a state of war between the
United States and Al-Qaida…”257
However, context plays a crucial role here in making the right status determinations. The
ICTY case law concerned non-state armed groups in non-international armed conflict, which
makes it relevant to our subject in relation to the possible applicability of the military
paradigm, over the law enforcement approach, to terrorist organizations. Yet in the conflict in
Afghanistan, Al-Qaida was fighting alongside the Taliban in an international armed conflict
against the United States. If Al-Qaida members had met the six criteria of Article 4(A)(2) of
the Third Geneva Convention as irregular troops, in particular the required link with the
armed forces of a state Party to the conflict, they would also have been able to wage war
255
Council
on
Foreign
Relations,
Al‐Qaida
backgrounder,
updated
Dec.
30,
2009,
http://www.cfr.org/publication/9126/alqaeda_aka_alqaida_alqaida.html?co=C005001,
last
visited
April
14,
2010.
256
L.
HOSNI,
“The
ABCs
of
the
Geneva
Conventions
and
their
applicability
to
modern
warfare”,
New
England
Journal
of
International
and
Comparative
Law,
14
New
Eng.
J.
Int’l
&
Comp.
L.
135
(Fall
2007).
257
J.
J.
PAUST,
“Post‐9/11
Overreaction
and
Fallacies
Regarding
War
and
Defense,
Guantanamo,
the
Status
of
Persons,
Treatment,
Judicial
Review
of
Detention,
and
Due
Process
in
Military
Commissions”,
Notre
Dame
Law
Review,
79
Notre
Dame
L.
Rev.
1335,
1340‐41
(2004).
56
against the United States as lawful combatants. They would therefore have to be a part of the
armed forces of a Party to the conflict, in accordance with Article 43 of Additional Protocol I.
However, they did not fulfill these criteria and so instead they were deemed unlawful
combatants, not entitled to the privileges of prisoner of war status and punishable for their
acts as unlawful combatants.
Another example in which a nation has faced a non-state group as an enemy relates to the
escalation of attacks in 2006 on the Israeli-Lebanon boarder between Israel, who is a party to
the Geneva Conventions, and Hizbollah, who is not.258 The conflict was triggered by the
abduction of two Israeli soldiers in an unprovoked attack by Hizbollah paramilitary forces on
Israel and lead to hundreds of deaths on both sides until the UN Security Council called for
the cessation of hostilities one month later.259 As a political group, the Shiite Muslim
Hizbollah operates schools, hospitals, agricultural and social services but many consider its
militant wing as a terrorist organization.260 It is even less difficult to classify Hizbollah as an
organized armed group in the sense of the Tadic decision since the organization is based in
Lebanon’s Shiite-dominated areas such as parts of Southern Lebanon, Beirut and the Bekaa
Valley and has coordinated cells in other parts of the world.261 It is also responsible for a
lengthy series of attacks such as the 1985 hijacking of TWA flight 847 and two bombings in
the 1990s on Jewish targets in Argentina.262 Moreover, it has been a fairly successful part of
Lebanon politics since 2005.263 As an identifiable group conducting terrorist activities they
can become a party to an armed conflict, subjected to the relevant provisions of IHL.
258
Geneva
Conventions
of
12
August
1949,
State
Parties
Signatories
List,
available
at:
http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P,
last
visited
July
14,
2010.
259
Resolution
1701
of
the
Security
Council
of
the
UN
(11
August
2006),
UN
Doc.
S/RES/1701
(2006);
Security
Council
calls
for
end
to
hostilities
between
Hizbollah,
Israel
(11
Aug.
2006),
Press
Release,
UN
Doc.
SC/8808.
260
Council
on
Foreign
Relations,
Hezbollah
Backgrounder,
updated
June
8,
2009,
http://www.cfr.org/publication/9155/hezbollah_aka_hizbollah_hizbullah.html#,
last
visited
April
14,
2010.
261
Ibid.
262
Council
on
Foreign
Relations,
Hezbollah
Backgrounder,
updated
June
8,
2009,
http://www.cfr.org/publication/9155/hezbollah_aka_hizbollah_hizbullah.html#,
last
visited
April
14,
2010.
263
CIA
Factbook:
Lebanon,
https://www.cia.gov/library/publications/the‐world‐
factbook/geos/le.html,
last
visited
April
14,
2010;
Hezbollah,
Times
Topics,
updated
June
8,
2009,
http://topics.nytimes.com/topics/reference/timestopics/organizations/h/hezbollah/index.ht
ml,
last
visited
April
14,
2010.
57
However, it must be stressed that they remain irregular fighters, not entitled to prisoner of war
status because of their guerilla tactics and non-state character. Sheikh Hasan Nasrallah,
Hizbollah’s senior political leader, said it himself during the armed conflict of 2006: “We are
not a regular army and we will not fight like a regular army.”264
4.1.4 Military Tribunals
In wartime, a particularly controversial domestic forum exists in the form of military tribunals
or commissions. Considering these tribunals’ jurisdiction over military matters, they should
preferably only be employed to prosecute acts linked to an actual armed conflict.265 Military
tribunals are distinct from traditional court-martial and the United States has predominantly
relied on them in trying terrorists, who were held in indefinite detention at Guantanamo Bay,
as enemy combatants after September 11.
It is well settled in international humanitarian law that in order to prevent prisoners captured
during combat of returning to the battlefield to once again take up arms, they may be held as
prisoners of war with the benefit of Geneva convention protections, but for a limited period that is until the end of the armed conflict.266 The administration argued that its actions were
justified based not on simple belief, but also upon the legal theory that the persons targeted
were “enemy combatants” and that their detention was justified for the duration of the “war”
pursuant to IHL. Be that as it may, this framework can not be applicable to the detainees in
the war on terror because they are not lawful combatants and once we recognize that the “War
on Terror” is far larger then just the conflicts in Iraq and Afghanistan, it then becomes clear
that there is no limited set of time that these individuals might be held. In practice holding
them to the end of the conflict could mean holding them for generations. Thus at first glance,
264
E.
CODY
&
M.
MOORE,
“The
Best
Guerilla
Force
in
the
World”,
The
Washington
Post
(Aug.
14,
2006),
http://www.washingtonpost.com/wp‐
dyn/content/article/2006/08/13/AR2006081300719.html?nav=rss_world,
last
visited
April
15,
2010.
265
R.
J.
GOLDSTONE
and
J.
SIMPSON,
“Evaluating
the
role
of
the
International
Criminal
Court
as
a
legal
response
to
terrorism”,
Harvard
Human
Rights
Journal,
2003
Vol.
16,
http://www.law.harvard.edu/students/orgs/hrj/iss16/goldstone.pdf,
last
visited
July
4,
2010.
266
Prisoners
of
war
shall
be
released
and
repatriated
without
delay
after
the
cessation
of
active
hostilities.
Convention
(III)
Relevant
to
the
Treatment
of
Prisoners
of
War,
Geneva,
Aug.
12,
1949.
58
many may outright reject the IHL justification for the indefinite preventative detention of
“unlawful enemy combatants” as completely contrary to traditional notions of fairness and
justice, and incompatible with the IHL. Already, the indefinite nature of this war is evident as
we see it spreading to the distant boarders of Pakistan, even as this analysis is conducted.267
Military commissions have the ability of balancing fighting a war versus court values, they
enjoy the advantage of flexibility and secrecy and have certainly proven very useful in the
past. Only, the latest version has been plagued in the past decade by criticism. Defense
lawyers as well as prosecutors at Gitmo have contested and complained about numerous
problems in the system such as the lack of transparency in information, about cases being
based on nothing but hearsay, denial of access to evidence, lack of interagency cooperation by
for example the CIA, the admissibility of coerced evidence in court and an overall selective
understanding of the laws of war.268 Some of them believe it was a mistake to go down this
path to begin with because there is no need to try these individuals before anything other than
traditional court-martial or federal district courts.269 What mostly made the United States
military commissions following the September 11 attacks so vulnerable to criticism from the
very beginning, is that the Military Order of 2001 constructed the commissions’ jurisdiction
around a rhetorical war on terrorism against any non-US citizen with respect to whom there is
reason to believe that person is or was a member of Al-Qaida and has committed or aided
terrorist acts against the United States or has aimed to do so and with respect to whom it is in
267
E.
SCHMITT,
“Terrorist
attacks
in
Pakistan
rising”,
The
New
York
Times,
1
May
2008,
http://www.nytimes.com/2008/05/01/world/americas/01iht‐01terror.12474736.html,
last
visited
May
3,
2010;
K.
A.
KRONSTADT,
“Pakistan
and
terrorism:
a
summary”,
Congressional
Research
Service
report
for
Congress
(March
27,
2007),
http://www.fas.org/sgp/crs/row/RS22632.pdf,
last
visited
May
3,
2010;
F.
ZAKARIA,
“Pakistan
is
epicenter
of
‘Islamic
terrorism’”,
CNN
International,
5
May
2010,
http://edition.cnn.com/2010/OPINION/05/05/zakaria.pakistan.terror/index.html,
last
visited
May
3,
2010.
268
“Military
Commission
Practice
and
Jurisprudence”,
Conference
at
the
Washington
College
of
Law
–
American
University,
Washington
D.C.
on
Jan.
23,
2009,
video
version
available
at:
http://media.wcl.american.edu/Mediasite/Viewer/?peid=6bbdb9a3‐7f01‐4d6f‐b710‐
c7160b67e942.
Among
the
speakers
were
Army
Colonel
and
Chief
Defense
Counsel
for
the
Guantanamo
Bay
military
commissions
Pete
R.
Masciola,
Colonel
and
Chief
Prosecutor
for
the
Office
of
Military
Commissions
Lawrence
Morris,
Major
General
and
former
appointing
authority
for
military
commissions
John
D.
Altenburg
and
Dr.
Louis
Fisher,
Specialist
in
Constitutional
Law,
Law
Library
of
Congress.
269
Ibid.
59
the interest of the United States to subject that person to the Military Order.270 One cannot
help but notice that the Order does not mention a single territorial boundary or requirement of
an ongoing, armed conflict. After having been struck down by the US Supreme Court in 2004
and 2006, the military commissions were revived once more by the Military Commissions
Act of 2006. Analogous to the Military Order, the Act targeted “alien unlawful enemy
combatants engaged in hostilities against the US for violations of the law of war and other
offences subject to trial by military commissions”.271 Of key importance is that in any
conventional international armed conflict, these persons would be targeted for detention not
because of their status as an individual, but because of their membership in a group engaged
in armed hostility.272 Their release after the cessation of the actual armed conflict would be
unlikely to cause much harm, for these individuals are only dangerous as part of the group. If
the group has been defeated or destroyed there is little chance they will continue to pose a
risk. The parties would have argued a peace agreement and the war would be over with.273
However, the same can certainly not be said, for instance, of Al-Qaida members captured in
Afghanistan pursuant to the “War on Terror”. This war is unconventional and its reach is far
greater than any uniformed group, so instead these laws target people who are dangerous not
just as part of a larger group, but are likely to remain dangerous as individuals.
In its Hamdan decision, the Supreme Court determined that the terrorism trials before military
commissions did not provide basic and substantial safeguards. The ensuing Military
Commissions Act of 2006 provided some improvements, but also remained flawed in many
ways.274 When assessing the United States military commissions, the numbers speak for
themselves. Since their commencement, the Guantanamo military commissions have
successfully convicted the grand total of three suspected terrorists.275
270
Detention,
Treatment
and
Trial
of
Certain
Non‐Citizens
in
the
War
Against
Terrorism,
66
Fed.
Reg.
57833
(2001).
271
Military
Commissions
Act
of
2006,
Pub.
L.
No.
109‐366,
120
Stat.
2600
(Oct.
17,
2006).
272
A.
M.
DANNER,
“Defining
unlawful
enemy
combatants:
a
centripetal
story”,
Texas
International
Law
Journal,
43
Tex.
Int’l
L.J.
1
(Fall
2007).
273
C.
S.
DELESSERT,
“Release
and
Repatriation
of
Prisoners
of
War
at
the
End
of
Active
Hostilities”,
International
Review
of
the
Red
Cross,
Vol.
18
No.
203
(April
1978),
118‐122.
274
R.
S.
CLARK,
“The
Military
Commissions
Act
of
2006:
An
abject
abdication
by
congress”,
Rutgers
Journal
of
Law
&
Public
Policy,
6
Rutgers
J.
L.
&
Pub.
Pol’y
78
(Fall
2008).
275
President
Barack
Obama,
Remarks
by
the
President
on
National
Security
(May
21,
2009),
http://www.whitehouse.gov/the‐press‐office/remarks‐president‐national‐security‐5‐21‐09,
last
visited
July
13,
2010.
60
Without question, the US has been struggling with the issue of exactly what to do with those
persons taken into custody in the course of the “War on Terror”. During his campaign, then
Senator Barack Obama had already referred to Gitmo as a sad chapter in American history.276
When he took office, the President put everything to do with military commissions on hold in
order to review the detainees’ cases and ordered the closure of the Guantanamo Bay detention
camp within the year.277 It was expected that President Obama would also kill the military
commissions all together, but instead he chose to give a more nuanced answer to the
complexities that the “War on Terror” had brought to the table. The detainees at Gitmo, who
have spent years in legal limbo, will fall into five distinct categories with the new
administration.278 Those who have violated American criminal laws will be tried in federal
court. Detainees who have violated the laws of war will be tried through military
commissions. The third category concerns those detainees who have been ordered released by
the courts, since it is a basic principle of the rule of law in any country to abide by the
decisions of its judicial system. The fourth involves detainees who can be passed on safely to
another country. Finally, the fifth and most controversial category consists of detainees who
can not be prosecuted yet who pose a threat to the American people. These are dangerously
qualified and trained individuals who have made it clear that they want to carry out terrorist
attacks. It is of these individuals that President Obama has stated that they in fact, remain at
war with the United States and therefore cannot be released.279 He also added that a legitimate
legal framework would be developed for cases of prolonged detention, based on periodic
review and in line with the rule of law.
If certain individuals do in fact remain at war, the US may very well detain accused terrorists
for an indefinite amount of time for security reasons.280 Most definitely in a more
conventional war, Article 5 of the Fourth Geneva Convention of 1949 would confirm this
reasoning as it says:
276
A.
SPILLIUS,
“Barack
Obama
proposes
to
move
terrorist
suspects
from
Guantanamo
Bay”,
Telegraph,
Nov.
10,
2008,
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/3417913/Barack‐Obama‐
proposes‐to‐move‐terrorists‐suspects‐from‐Guantanamo‐Bay.html,
last
visited
July
12,
2010.
277
Review
and
Disposition
of
Individuals
Detained
at
the
Guantanamo
Bay
Naval
Base
and
Closure
of
Detention
Facilities,
74
Fed.
Reg.
4897
(Jan.
22,
2009).
278
President
Barack
Obama,
Remarks
by
the
President
on
National
Security
(May
21,
2009),
http://www.whitehouse.gov/the‐press‐office/remarks‐president‐national‐security‐5‐21‐09,
last
visited
July
13,
2010.
279
Ibid.
280
B.
A.
BOSWELL,
“True
Terror:
Life
after
Guantanamo”,
UMKC
Law
Review,
77
UMKC
L.
Rev.
1093
(Summer
2009).
61
“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.”281
The government’s assertion that certain persons in custody would pose a serious risk to
national security should they be released with or without the benefit of a fair trial is certainly
not without merit. Nor is it without merit to be careful with the release of sensitive
information, the presentment of which during trial could jeopardize ongoing efforts in battling
terrorism. Only one does not need to look far to see the potentially disturbing effects of
President Obama holding on to a category that allegedly remains at war with the United
States. This means that the country will continue to hold these people indefinitely, still
arguing that they are enemy combatants but with different phrasing, outside of the protections
of the Geneva Conventions. There is no doubt that there are in fact individuals currently in
detention whose release would pose a serious threat to the American people and perhaps
civilians anywhere, and thus in the administration’s view are simply too dangerous to be let
back into society. However, classification as an “enemy combatant” or “unlawful combatant”
under IHL cannot be construed as to mean holding those individuals until the day that the
“war on terror” is won. This is a day that may never truly come, and so this claim does not
seem to quite fit. Besides, as said before a fundamental principle of the rule of law is
complying with what the judge says and so it is not only up to the executive branch to decide
on the fate of these individuals.282 For example, in Boumediene v. Bush the US Supreme
Court has held that even detainees at Guantanamo Bay have a right to challenge their
detention.283 The Court also suggested that an open-ended detention without due process is
exceptional in American case law, as well as “the gravity of the separation-of-powers issues
raised by the enemy combatant cases”.284 Of course we have here the benefit of hindsight, but
the different nature of this war was visible to the Bush administration from the beginning and
281
Convention
(IV)
relative
to
the
Protection
of
Civilian
Persons
in
the
Time
of
War,
Aug.
12,
1949,
art.
5.
282
“Military
Commission
Practice
and
Jurisprudence”,
Conference
at
the
Washington
College
of
Law
–
American
University,
Washington
D.C.
on
Jan.
23,
2009
(supra
note
28).
283
US
Supreme
Court,
Boumediene
v.
Bush,
553
U.S.
723
(2008).
284
US
Supreme
Court,
Boumediene
v.
Bush,
128
U.S.
2229
(2008),
part
V.
62
surely apparent to the Obama administration as well when introducing the fifth category. The
Bush administration’s language from the earliest days of the “War on Terror” suggested that
this was a new type of war that required new rules, a fresh mindset and maybe a new legal
structure.285
Former Chief Defense Counsel for the military commissions Col. Pete Masciola has said that
a court that does not meet the minimal standards set forth the Geneva Conventions of 1949, is
assuredly a disservice to the family members of September 11 victims and to how the world
perceives the United States.286 In my view, he is right because we cannot deny that the
families of the September 11 victims have been waiting for years to see justice done and that
true justice comes in the form of a fair trial with respect for judicial guarantees, no matter how
high the burden of proof. It is now up to President Obama to effectively realize such a
legitimate legal framework that can produce tangible results, with meaningful due process
right for the accused and in line with the rule of law. In 2009, the Military Commissions Act
of 2006 was amended and in 2010 a new set of procedural rules was released287, just in time
for the start of the new and improved military commissions’ first case.288 It will be interesting
to follow the developments of new case law in the matter.
285
President
George
W.
Bush,
State
of
the
Union
Address
(Sept.
20,
2001),
available
at:
http://archives.cnn.com/2001/US/09/20/gen.bush.transcript/,
last
visited
July
13,
2010;
President
George
W.
Bush,
State
of
the
Union
Address
(Jan.
20,
2004),
available
at:
http://www.washingtonpost.com/wp‐srv/politics/transcripts/bushtext_012004.html,
last
visited
July
6,
2010.
286
“Military
Commission
Practice
and
Jurisprudence”,
Conference
at
the
Washington
College
of
Law
–
American
University,
Washington
D.C.
on
Jan.
23,
2009
(supra
note
28)
287
National
Defense
Authorization
Act
for
Fiscal
Year
2010,
Pub.
L.
111‐84,
123
Stat.
2190,
enacted
October
28,
2009;
Manual
for
Military
Commissions,
2010
Edition,
available
at:
http://www.defense.gov/news/d2010manual.pdf,
last
visited
July
15,
2010.
288
The
case
of
Canadian
Guantanamo
Bay
detainee
Omar
Kadhr.
Developments
in
this
case
can
be
followed
at:
http://www.defense.gov/news/commissionsKhadr.html,
last
visited
July
15,
2010
when
the
Military
Judge’s
schedule
order
had
become
available
on
July
8,
2010.
63
4.2 Peacetime:
International
Human
Rights
Law
and
Criminal
Law
During peacetime, the full body of international human rights law comes into effect and the
law enforcement approach is as a rule considered the only legitimate strategy to fight
terrorism. In this second part of chapter 4, we will first consider the interface of international
human rights with IHL. Then, we will demonstrate how regular criminal courts have a long
history of prosecuting terrorists and how the law enforcement approach is supported by
international organizations. Further, the possibility of bringing terrorist crimes before an
international authority will be discussed and with it, the legal definition of international
terrorism that has yet to be agreed upon by the international community.
4.2.1 International Human Rights Law
It is clear that during times of war, a different set of rules applies then in peacetime. What
these two sets of rules do have in common, be it from a different angle, is a common nucleus
of respect for the life and dignity of every individual.289 Although States are primarily
responsible for the implementation of both, IHL is principally aimed at all the parties to a
particular conflict, while every person as an individual has the obligation to respect human
rights during peacetime.290 Human rights can be found in a series of universal instruments,
such as the Universal Declaration of Human Rights of 1948 or the International Covenant on
Civil and Political Rights of 1966, and regional instruments, such as the American
Convention on Human Rights of 1969. This last treaty has been signed by the United States in
1977, but the country has not yet proceeded with its ratification.291 Contrary to IHL, most
international human rights treaties also contain suspension or derogation clauses in case of an
emergency, the only exception to these clauses being a series of basic human rights provisions
289
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
476.
“International
Humanitarian
Law:
Answers
to
your
questions”,
ICRC
publication,
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0703/$File/ICRC_002_0703.PDF!Open,
last
visited
July
15,
2010.
291
List
of
signatories
and
ratifications
of
the
American
Convention
on
Human
Rights
of
1969,
http://www.cidh.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm,
last
visited
July
15,
2010.
290
64
that are considered too fundamental too ever be waived.292 Among others, these include the
prohibition of capital punishment without a sentence of a court, prohibition of torture,
prohibition of taking of hostages and the prohibition to hold someone in slavery or
servitude.293 This hard core of human rights even applies in times of armed conflict.294
Neither can a nation use its domestic laws as an excuse to not carry out its obligations under
international human rights law or IHL.295
International human rights law is relevant to our subject in both wartime, through the hard
core of human rights that remains applicable then, and peacetime when the full body of
human rights is in place. Rights that have proven particularly important in peacetime
concerning accused terrorists are the right to a fair trial, including the right to be presumed
innocent until proven guilty according to law, and the prohibition of torture or cruel, inhuman
or degrading treatment or punishment.296 The right to be free from arbitrary detention, which
implies a right to challenge the legality of one’s detention by methods like judicial review, is
also enshrined in customary international law and various human rights treaties and has
manifested itself abundantly in the fight against terrorism.297 On that basis, prisoners always
have a right to challenge their captivity. During wartime, abuses such as the practices of both
physical and mental torture in the prison of Abu Ghraib in 2003, again demonstrated the
necessity of the applicability of a hard core of human rights during wartime.298
292
Ibid.
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
476.
294
“International
Humanitarian
Law:
Answers
to
your
questions”,
ICRC
publication,
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0703/$File/ICRC_002_0703.PDF!Open,
last
visited
July
15,
2010.
295
Vienna
Convention
on
the
Law
of
Treaties,
23
May
1969,
UN
Treaty
Series,
vol.
1155,
p.331,
Art.
27.
296
International
Covenant
on
Civil
and
Political
Rights
(ICCPR),
UN
Doc.
A/6316
(1966),
articles
7
and
14;
Universal
Declaration
of
Human
Rights,
UN
Doc.
A/810
at
71
(1948),
articles
5,
10
and
11.
297
ICCPR,
Art.
9;
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring
2005).
298
K.
ZERNIKE,
“Detainees
describe
abuses
by
Guard
in
Iraq
Prison”,
The
New
York
Times
(Jan.
12,
2005),
http://www.nytimes.com/2005/01/12/international/12abuse.html?pagewanted=1&_r=2,
last
visited
July
15,
2010.
293
65
In Security Council resolution 1373 of 2001, the UN makes one reference on the subject of
counter-terrorism and human rights when it calls upon all states to "take appropriate
measures in conformity with the relevant provisions of national and international law,
including international standards of human rights..."299 However, the appropriate measures
that need to be taken only relate to the risk of refugee seekers turning out to be terrorists.
Security Council resolution 1373 did establish the Counter-Terrorism Committee, which went
on to form a more pro-active policy towards human rights through the Counter-Terrorism
Committee Executive Dictorate and most recently by a working group on human rights
aspects of counter-terrorism in the context of resolution 1373.300 In Resolution 1456 of 2003,
on the issue of combating terrorism, the Security Council again stresses that states should
adopt measures in accordance with international law and particularly with international
human rights law.301
4.2.2 The law enforcement approach
Currently, there are thirteen major legal instruments and three additional amendments dealing
with terrorism in place, for example the 1997 Terrorist Bombing Convention or the 2005
Nuclear Terrorism Convention.302 These instruments generally call upon states to criminalize
terrorist conduct and to not create a safe haven for terrorists.303 Negotiations are ongoing to
put together a comprehensive convention on international terrorism but a huge obstacle
remains with not being able to reach a worldwide compromise on the definition of
international terrorism. This convention would, however, build on key principles already
present in the current anti-terrorism instruments.
299
Resolution
1373
of
the
Security
Council
of
the
UN
(28
September
2001),
UN
Doc.
S/RES/1373
(2001).
300
Security
Council
Counter‐Terrorism
Committee,
Human
Rights,
http://www.un.org/sc/ctc/rights.html,
last
visited
July
16,
2010.
301
Resolution
1456
of
the
Security
Council
of
the
UN
(20
January
2003),
UN
Doc.
S/RES/1456
(2003).
302
UN
Action
to
Counter
Terrorism,
International
Instruments,
http://www.un.org/terrorism/instruments.shtml,
last
visited
July
16,
2010.
303
D.
GLAZIER,
“Playing
by
the
rules:
combating
Al‐Qaida
within
the
law
of
war”,
William
and
Mary
Law
Review,
51
Wm.
&
Mary
L.
Rev.
957
(Dec.
2009).
66
Any nation’s judiciary branch will naturally have the authority to prosecute persons who are
suspected of having committed terrorist acts on its territory or against its citizens. Criminal
trials have the advantage of bringing a greater sense of legitimacy to the table, thereby
facilitating international cooperation.304 On top of that, through the already established
network of extradition treaties a country could get custody over terrorists from almost any
nation.305
Before the September 11 attacks, terrorist acts were in fact prosecuted in the United States as
ordinary terrorism-related crimes such as homicide, assault, kidnapping, bombing, conspiracy,
aiding and abetting ...
306
The US Justice Department has had a very successful record of
prosecuting international terrorists. For example, the terrorists who carried out the 1993
World Trade Center bombing were successfully prosecuted and convicted in the United States
on charges that included conspiracy, the lethal use of explosives, explosive destruction of
property and interstate transportation of explosives.307 Another case illustrating how justice is
served first and foremost by treating terrorists as common criminals, pertains to the
prosecution and sentencing of Richard “shoe bomber” Reid. After attempting to blow up a
trans-Atlantic flight with explosives in his shoe, Reid pled guilty on all eight counts related to
his acts of terrorism. Amongst the charges in his indictment were the attempted use of a
weapon of mass destruction, attempted homicide, attempted murder, attempted destruction of
aircraft and the placing of an explosive device on an aircraft.308 In court, he even called
himself a disciple of Osama bin Laden and an enemy of the United States.309 Nonetheless post
9/11, the federal court judge accepting his guilty plea made it very clear that Reid was
304
Ibid.
Ibid.
306
L.
HOSNI,
“The
ABCs
of
the
Geneva
Conventions
and
their
applicability
to
modern
warfare”,
New
England
Journal
of
International
and
Comparative
Law,
14
New
Eng.
J.
Int’l
&
Comp.
L.
135
(Fall
2007).
307
“World
Trade
Center
Bombing:
1993‐94
1997
‐
Van
Deposit
Leads
To
Arrests,
Far‐
reaching
Conspiracy
Alleged,
Defendants
Tied
To
Van,
Bomb
Manuals”,
http://law.jrank.org/pages/3591/World‐Trade‐Center‐Bombing‐1993‐94‐1997.html,
last
visited
June
11,
2010.
308
Indictment,
United
States
of
America
v.
Richard
Colvin
Reid,
http://www.fas.org/irp/news/2002/01/reidindictment.pdf,
last
visited
June
25,
2010.
309
“Richard
Reid
pleads
guilty”,
CNN
Law
Center,
http://edition.cnn.com/2002/LAW/10/04/reid.guilty.plea/,
last
visited
June
25,
2010.
305
67
certainly not an enemy combatant, but a terrorist. Judge Young stated: “You are not a soldier
in any army, you are a terrorist. To call you a soldier gives you far too much stature.”310
So even though the United States government has for the most part drawn on the military
paradigm since the September 11 attacks, it additionally carried on resorting to criminal law
for the prosecution of terrorist suspects.311 This was also the case for Zacarias Moussaoui, the
so-called “20th hijacker”, who was the first person convicted in a United States court for the
September 11 attacks. He had been charged with several conspiracy counts such as conspiracy
to commit acts of terrorism transcending national boundaries, conspiracy to commit aircraft
piracy and conspiracy to use weapons of mass destruction.312 He is currently serving a life
sentence in a federal maximum-security prison in the state of Colorado.313 On top of that, the
cases of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the September 11
attacks, and four co-conspirators who have been held at Guantanamo Bay for years and had in
fact been charged there before military commissions, were moved to civilian federal court by
the Obama administration.314
That said, it cannot be denied that September 11 brought about an immense shift in
America’s legal approach to terrorism. From the administration’s perspective it took the
country from a law enforcement approach to terrorism to an approach premised on an actual
state of war between the United States and Al-Qaida - one that prompted the full range of
presidential powers. Critics essentially claim that the administration turned the legal system
on its head by needlessly jumping head first in unknown waters, brushing aside any respect
for common sense or legality along the way. Further, they dispute the invocation of the full
310
P.
BELLUCK,
“Unrepentant
shoe
bomber
is
given
a
life
sentence
for
trying
to
blow
up
jet”,
International
Herald
Tribune,
http://www.nytimes.com/2003/01/31/us/threats‐responses‐
bomb‐plot‐unrepentant‐shoe‐bomber‐given‐life‐sentence‐for.html?pagewanted=1,
last
visited
June
25,
2010.
311
J.
B.
FALK,
“The
Global
War
on
Terror
and
the
Detention
Debate:
The
applicability
of
Geneva
Convention
III”,
Journal
of
International
Law
&
Relations,
3
J.
Int’l
L.
&
Int’l
Rel.
31
(Spring
2007).
312
Indictment,
United
States
v.
Zacarias
Moussaoui,
http://www.justice.gov/ag/moussaouiindictment.htm,
last
visited
July
7,
2010.
313
Federal
Bureau
of
Prisons,
Inmate
locator,
search
by
name
“Zacarias
Moussaoui”
http://www.bop.gov/iloc2/LocateInmate.jsp,
last
visited
July
7,
2010.
314
J.
MAYER,
“Eric
Holder
and
the
battle
over
Khalid
Sheikh
Mohammed”,
The
New
Yorker
(February
15,
2010),
http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer,
last
visited
July
7,
2010.
68
range of presidential powers available during wartime to fight the much more expansive and
indefinite “War on Terror” and are shocked by the seemingly endless detention of terrorist
suspects, subjected to harsh conditions without any proper recourse.315 According to the
ICRC, international humanitarian law only applies to the “Global War On Terror” to the
extent that it coincides with an actual armed conflict.316 When terrorist activities manifest
themselves outside the context of an armed conflict, which can be international or internal,
domestic laws should be exercised together with international criminal law and human rights
law.317 The traditional law enforcement approach to international terrorism is then the only
viable strategy to respond to threats.
In response to 9/11, the UN Security Council under Chapter VII of the UN Charter adopted
Resolution 1373 concerning threats to international peace and security caused by terrorist
acts. Besides obligations to fight terrorist funding and not provide safe havens for terrorists,
this anti-terrorism resolution requires Member States to ensure primarily that any person who
participates in terrorist acts are brought to justice and that terrorist acts are established as
serious criminal offences in domestic laws and regulations. To carry out the international and
domestic law enforcement approach, the Member States are also to afford one another the
greatest measure of assistance in connection with criminal investigations or criminal
proceedings.318
Consequently and in accordance with the UN and ICRC, combating international terrorism in
peacetime preferably calls for more international cooperation between the different national
315
“Military
Commission
Practice
and
Jurisprudence”,
Conference
at
the
Washington
College
of
Law
–
American
University,
Washington
D.C.
on
Jan.
23,
2009
(supra
note
28)
316
J.
B.
FALK,
“The
Global
War
on
Terror
and
the
Detention
Debate:
The
applicability
of
Geneva
Convention
III”,
Journal
of
International
Law
&
Relations,
3
J.
Int’l
L.
&
Int’l
Rel.
31
(Spring
2007).
317
“The
Relevance
of
IHL
in
the
context
of
terrorism”,
Official
Statement
ICRC,
21
July
2005,
http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism‐ihl‐210705,
last
visited
June
11,
2010.
318
Resolution
1373
of
the
Security
Council
of
the
UN
(28
September
2001),
UN
Doc.
S/RES/1373
(2001).
This
resolution
has
been
reaffirmed
in
subsequent
resolutions
such
as
1516
in
response
to
the
bomb
attacks
in
Istanbul
(2003),
1526
underlining
the
implementation
of
1373
(2003),
1566
calling
upon
States
to
cooperate
with
the
Counter‐
Terrorism
Committee
established
pursuant
1373
(2004),
1624
directing
the
Counter‐
Terrorism
Committee
(2005)
and
lastly
resolution
1904
urging
Member
States
to
participate
in
updating
the
Consolidated
List
created
pursuant
resolution
1267
(2009).
69
judicial authorities and transnational policing along with counterterrorism in order to capture
and prosecute suspected terrorists effectively.
4.2.3 Domestic criminal law
Domestic criminal trials obviously have their merits. In particular, they enjoy the benefit of
enjoying broad international support, which facilitates cooperation to the advancement of the
greater international law enforcement effort. Yet in spite of the advantages, some obstacles
continue to exist in enforcing the standard law enforcement approach.
First, these trials carry a certain risk in the way that it might be impossible sometimes to live
up to the evidentiary standards and strict timelines, especially with the former admissibility of
coerced evidence in military commissions, therefore possibly setting dangerous individuals
free.319 However, it must be noted that the first cases the United States has transferred from
the military commissions system to domestic civilian courts, have demonstrated “that there is
a way forward through the federal courts”.320 Ahmed Khalfan Ghailani, the first case to have
been moved from Guantanamo Bay to the civilian court system, has argued that because of
his long detention he had been deprived from the right to a speedy trial. The judge rejected the
argument as having had no adverse impact on Mr. Ghailani’s ability to defend himself, hence
giving the green light for the criminal justice system as a feasible option in trying terrorism
cases.321 Second, differences between domestic legal systems, such as issues of punishment or
procedure, could also cause legal uncertainty amidst nations or obstruct international
cooperation.322 For instance, in a landmark judgment the European Court of Human Rights
319
D.
GLAZIER,
“Playing
by
the
rules:
combating
Al‐Qaida
within
the
law
of
war”,
William
and
Mary
Law
Review,
51
Wm.
&
Mary
L.
Rev.
957
(Dec.
2009).
320
Statement
by
Karen
J.
Greenberg,
executive
director
of
the
Center
on
Law
and
Security
at
the
New
York
University
School
of
Law.
B.
WEISER,
“Judge
refuses
to
dismiss
terror
suspect’s
case”,
The
New
York
Times
(July
13,
2010),
http://www.nytimes.com/2010/07/14/nyregion/14ghailani.html?_r=1&nl=&emc=aua1,
last
visited
July
28,
2010.
321
B.
WEISER,
“Judge
refuses
to
dismiss
terror
suspect’s
case”,
The
New
York
Times
(July
13,
2010),http://www.nytimes.com/2010/07/14/nyregion/14ghailani.html?_r=1&nl=&emc=aua
1,
last
visited
July
28,
2010.
322
R.
J.
GOLDSTONE
and
J.
SIMPSON,
“Evaluating
the
role
of
the
International
Criminal
Court
as
a
legal
response
to
terrorism”,
Harvard
Human
Rights
Journal,
2003,
Vol.
16,
13‐26,
http://www.law.harvard.edu/students/orgs/hrj/iss16/goldstone.pdf,
last
visited
July
5,
2010.
70
established that the violation of Article 3 of the European Convention of Human Rights by the
death row phenomenon, as existent in the United States, constituted grounds to prevent the
extradition of a young German national who would risk the death penalty upon extradition.323
Moreover, some European countries have already gone further by refusing to extradite AlQaida members to the United States because of the single risk that the suspects could face
capital punishment.324 Another obstacle in the eyes of the international community might be
the outward impression of lacking impartiality when a certain country puts a suspect on trial
that struck a huge blow to that nation’s core.325
4.2.4 International Criminal Law
4.2.4.1 International
Forums
On account of the hurdles the different domestic legal forums may encounter and the
widespread effect of terrorist crimes on the international community, it might be interesting to
look for uniformity on a higher level. Notwithstanding the fact that there is a standpoint in
favor of a new international body that would bring together the domestic jurisdictions
regarding terrorism, the most logical alternatives are the existing international tribunals.326
As a first possibility, the International Court of Justice can be ruled out because it only holds
jurisdiction relating to disputes between states and not the criminal acts of individuals such as
acts of terrorism.327
323
European
Court
of
Human
Rights,
Soering v. the United Kingdom,161 (7.7.89).
R.
J.
GOLDSTONE
and
J.
SIMPSON,
“Evaluating
the
role
of
the
International
Criminal
Court
as
a
legal
response
to
terrorism”,
Harvard
Human
Rights
Journal,
2003,
Vol.
16,
13‐26,
http://www.law.harvard.edu/students/orgs/hrj/iss16/goldstone.pdf,
last
visited
July
5,
2010.
325
Ibid.
326
B.
J.
FALK,
“The
Global
War
on
Terror
and
the
Detention
Debate:
The
applicability
of
Geneva
Convention
III”,
Journal
of
International
Law
&
International
Relations,
3
J.
Int’l
L.&
Int’l
Rel.
31
(Spring,
2007).
It
is
William
Carmines
who
has
suggested
the
establishment
of
an
International
treaty
based
Terrorism
Tribunal
pooling
jurisdictions
from
likeminded
countries
to
try
international
terrorists,
but
without
complementary
jurisdiction
like
the
ICC.
327
R.
J.
GOLDSTONE
and
J.
SIMPSON,
“Evaluating
the
role
of
the
International
Criminal
Court
as
a
legal
response
to
terrorism”,
Harvard
Human
Rights
Journal,
2003
Vol.
16,
13‐26,
324
71
Secondly, an ad hoc tribunal established by the UN, such as the international criminal
tribunals for former Yugoslavia (ICTY) and for Rwanda (ICTR), is imaginable when reading
the serious concerns expressed in Security Council Resolution 1373. However, such a tribunal
could undeniably be upstaged by the more plausible third alternative of extending the
jurisdiction of the permanent International Criminal Court to include terrorism.328
Ensuing the United Nations Diplomatic Conference that took place in Rome, the ICC came
into being as the on that occasion adopted Rome Statute entered into force on 1 July 2002
after being ratified by 60 countries.329 Currently 111 countries have become Parties by
formally expressing their consent to be bound by the Rome Statute, the international treaty
that governs the jurisdiction and functioning of the International Criminal Court.330 In spite of
the fact that the Obama administration has expressed it intent to cooperate with the Court, the
United States has yet to become a member. The state of Israel has not ratified the Rome
Statute either. However, seeing as the Rome Statute provides for the possibility of making
amendments thereto, it definitely has the potential to serve as a well-thought-out forum for the
prosecution of acts of terrorism under international criminal law.331 As a court of last resort,
the ICC will moreover not act if a case is being investigated or prosecuted by a State that has
jurisdiction over it, unless the national proceedings show unwillingness or inability to
genuinely carry out the investigation or prosecution.332 It will also determine that a case is
inadmissible when the alleged crime is not of sufficient gravity, seeing as the jurisdiction of
the Court is limited to “the most serious crimes of concern to the international community as
a whole”.333 Also included in the treaty is a specific ne bis in idem principle, to round out the
complementary character of the international court with domestic courts.334 Terrorism as such
is currently not included under the ambit of the Court, but terrorist acts could possibly be
http://www.law.harvard.edu/students/orgs/hrj/iss16/goldstone.pdf,
last
visited
July
5,
2010.
328
Ibid.
(The
countries
in
question
are
Spain,
Germany
and
France.)
329
Final
Act
of
the
United
Nations
Diplomatic
Conference
of
Plenipotentiaries
on
the
Establishment
of
an
International
Criminal
Court,
U.N.
Doc.
A/CONF.183/10
(1998)
[hereafter
“Final
Act”].
330
Rome
Statute
of
the
International
Criminal
Court,
U.N.
Doc.
A/CONF.183/9
(1998)
[hereafter
“Rome
Statute”].
331
Rome
Statute,
art.
121.
332
Rome
Statute,
art.
17(1)(a)‐(b).
333
Rome
Statute,
art.
5
and
art.
17(1)(d).
334
Rome
Statute,
art.
17(1)(c)
and
art.
20.
72
interpreted as a part of or added to crimes already under its jurisdiction namely “crimes
against humanity”.335
4.2.4.2 Legal
definition
of
international
terrorism
and
the
International
Criminal
Court
The greatest hindrance in classifying a terrorist attack as a crime against humanity is the
inability to pinpoint an acceptable international definition of international terrorism.336 In its
Final Act, The Diplomatic Conference had already expressed its regret of not having been
able to agree upon a definition of crimes of terrorism for the inclusion within the jurisdiction
of the court, yet at the same time affirmed that the Rome Statute leaves room for expansion in
the future and recommended a Review Conference to do so relating to international
terrorism.337 Since article 123 of the Rome Statute stipulates that a Review Conference can
only convene seven years after the entry into force of the treaty, just one such a Conference
has occurred up until today.338 However, defining terrorist acts was not yet on the agenda at
this time.
It might be sensible for the eventual definition to be composed under the responsibility of the
UN and thereby finally fixing an all too familiar stumbling block of international law.
Although the International Criminal Court is an independent tribunal hence not resorting
under UN authority, it could draw greater legitimacy from a UN definition. With Security
Council resolutions 1368 and 1373, the UN has already signaled its stance that international
terrorism, such as the September 11 attacks, forms a serious threat to international peace and
security.339 When a conclusion on the exact meaning of crimes of terrorism finally can be
agreed upon, it could be added to the list of crimes against humanity by way of amendment to
article 7 of the Rome Statute.340 With the wording “an act committed as part of a widespread
or systematic attack directed against any civilian population, with knowledge of the attack”,
paragraph 1 of that article already mentions an important element inherent to any terrorist act.
335
Rome
Statute,
art.
7.
“Crimes
of
terrorism”
were
included
in
the
Draft
Statute
but
then
left
out
for
the
final
version.
For
the
proposed
definition
see
Draft
Statute
for
the
International
Criminal
Court,
U.N.
Doc.
A/CONF.183/2/Add.1
(1998).
337
Final
Act,
Annex
1,
Res.
E.
338
The
Review
Conference
took
place
in
Kampala
(Uganda),
31
May‐11
June
2010.
339
Cf.
supra:
UN
Doc.
S/RES/1368
(2001),
UN
Doc.
S/RES/1373
(2001).
340
Rome
Statute,
art.
121.
336
73
What’s more, article 7(1)(k) includes “other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to mental or physical
health”. This subcategory basically leaves room for acts that are not per definition included in
(a)-(j) but are very much alike. When the Preparatory Committee included crimes of terrorism
in its Draft Statute the proposed definition also contained the similar phrase “…to perpetrate
indiscriminate violence involving death or serious bodily injury to persons or groups of
persons or populations”.341 The interpretation of article 7 in the Elements of Crimes makes it
all the more apparent how easily acts of terrorism could potentially fall under the meaning of
crimes against humanity. In this explanatory official document an “attack directed against a
civil population” is interpreted as “…pursuant to or in furtherance of a State or
organizational policy to commit such an attack … ‘policy to commit such attack’ requires that
the State or organization actively promote or encourage such an attack against a civilian
population.”342 It goes without saying that Al-Qaida could qualify as such an organization
since it has methodically recruited followers, trained them in terrorist camps, carefully
orchestrated attacks on civilians and systematically executed those on a global scale to further
its extremist agenda.
One of the difficulties with the proposed definition in the Draft Statute is that it is mainly
based on defining terrorist tactics as such when it already seems generally accepted that
terrorism concerns “acts of violence…of such a nature as to create terror, fear or
insecurity…” or “an offence involving use of firearms, weapons, explosives and dangerous
substances when used as a means to perpetrate indiscriminate violence…”343 Alternately an
attempt should also be made to resolve the real issue of actually naming terrorist
organizations.344 Otherwise, the definition would leave room for any country to give its own
interpretation thereby leaving the door open for any nation to resort to military force when
another country challenges that nation’s listing and harbors an alleged terrorist
341
Draft
Statute
for
the
International
Criminal
Court,
U.N.
Doc.
A/CONF.183/2/Add.1
(1998),
available
at
http://daccess‐dds‐
ny.un.org/doc/UNDOC/GEN/N98/101/05/PDF/N9810105.pdf?OpenElement,
last
visited
July
8,
2010.
342
Elements of Crimes, The Official Journal of the ICC, (c), available at http://www.icccpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B68E5F9082543/0/Element_of_Crimes_English.pdf, last visited July 8, 2010.
343
Ibid.,
p.
27‐28.
344
M.
COGEN,
“The
Impact
of
International
Humanitarian
Law
on
Current
Security
Policy
Trends”,
http://www.crimesofwar.org/expert/attack‐cogen.html,
last
visited
June
11,
2010.
74
organization.345 The UN already started this process in 1999 by putting together a list of
individuals and entities associated with Al-Qaida or the Taliban.346 Moreover, there has also
been a lot of debate whether so-called “freedom fighters” should be included in the definition
of international terrorism.347 I do not see the problem here because it seems evident that if
organizations for whatever cause employ terrorist tactics, there cannot be room for
extenuating circumstances. The Secretary-General’s High-Level Panel on Threats, Challenges
and Change recognizes that the Member States’ inability to agree on an anti-terrorism
convention including a definition of terrorism prevents the UN from sending an unequivocal
message that terrorism is never an acceptable tactic, even for the most defensible causes.348
The Panel also stresses the value in achieving a consensus definition within the General
Assembly and wishes for the rapid completion of negotiations concerning a comprehensive
convention on terrorism.349 It describes terrorism as actions specified by the preceding antiterrorism conventions, the Geneva Conventions and Security Council resolution 1566 (2004)
instead of restating once again the list of terrorist tactics. Next to the classic element of
intentionally causing serious bodily harm or death to civilians, it also mentions that the
purpose of such an act is to intimidate a population or to compel a Government or an
international organization to do or to abstain from doing any act.350 Ideally, the UN would
establish a definition in the near future, together with an official public listing of which
organizations are in fact internationally to be considered as terrorist organizations.
345
Ibid.
The
“Consolidated
List”
is
put
together
by
the
Security
Council
Committee
established
pursuant
to
resolution
1267
concerning
Al‐Qaida
and
the
Taliban
and
Associated
Individuals
and
Entities
with
cooperation
from
the
Member
States.
347
R.
J.
GOLDSTONE
and
J.
SIMPSON,
“Evaluating
the
role
of
the
International
Criminal
Court
as
a
legal
response
to
terrorism”,
Harvard
Human
Rights
Journal,
2003
Vol.
16,
13‐26,
http://www.law.harvard.edu/students/orgs/hrj/iss16/goldstone.pdf,
last
visited
July
9,
2010.
348
“A
more
secure
world,
our
shared
responsibility”,
Report
of
the
High‐Level
Panel
on
Threats,
Challenges
and
Change,
2004,
http://www.un.org/secureworld/report2.pdf,
last
visited
July
9,
2010.
349
Ibid.
350
Ibid.
346
75
4.3 Conclusion
The legitimate use of international humanitarian law in the fight against international
terrorism calls for the total abandonment of the “war on terror” concept. Only when a military
response to terrorism is warranted, i.e. in the case of a “war by proxy”, terrorists themselves
and their organization become combatants in the sense of international humanitarian law, yet
without the privileges entitled to lawful combatants.351 In order to implement this analysis, a
clear distinction needs to be made at all times between the legal framework that applies in
peacetime, when international human rights law and criminal law are key, and the one that
applies in wartime, which is governed by international humanitarian law. As long as terrorist
organizations are harbored by states, both approaches will have to serve their purpose in the
fight against international security threats because the reality is that in addressing the
unconventional nature of the terrorist threat, neither paradigm delivers the complete answer.
Turning to armed conflict can only be warranted as a last resort and as one component of a
larger legal and political endeavor.352 The possibility of the International Criminal Court
playing a vital role in the fight against international terrorism also should not be disregarded.
Certainly the shortcomings of the Bush administration should not be attributed to the military
paradigm in se, but to a selective understanding of international humanitarian law and lack of
respect for legal constraints at the time. As Hugo Grotius observed in 1625:
“That war is irreconcilable with all law is a view held not alone by the ignorant
populace; expressions are often let slip by well-informed and thoughtful men which
lend countenance to such a view.”353
It is safe to assume that Grotius had read Cicero before he wrote this.354 The big difference of
course is the magnitude of laws of war that emerged after his time, effectively remedying this
point of view for the 21st century.
351
M.
COGEN,
“The
Impact
of
International
Humanitarian
Law
on
Current
Security
Policy
Trends”,
http://www.crimesofwar.org/expert/attack‐cogen.html,
last
visited
June
11,
2010.
352
D.
GLAZIER,
“Playing
by
the
rules:
combating
Al‐Qaida
within
the
law
of
war”,
William
and
Mary
Law
Review,
51
Wm.
&
Mary
L.
Rev.
957
(Dec.
2009).
353
HUGO
GROTIUS,
The
Rights
of
War
and
Peace
(De
jure
belli
ac
pacis),
1625,
edited
and
with
an
introduction
by
Richard
Tuck,
Indianapolis,
Liberty
Fund
Edition,
2005,
1:217.
354
See
supra
note
1:
“Inter
arma
enim
silent
leges.”
76
5 Case
Law
regarding
Unlawful
Combatants
and
Terrorism
“…War is made against those who cannot be restrained in a judicial way. For judicial
proceedings are of force against those who are sensible of their inability to oppose them; but
against those who are or think themselves of equal strength, wars are undertaken; but
certainly to render wars just, they are to be waged with no less care and integrity than
judicial proceedings are usually carried on.”
Hugo Grotius355
Now that we have discussed the legal frameworks involving terrorism, in wartime with
terrorists labeled as unlawful combatants and in peacetime as common criminals, it is
important to examine how these frameworks have been applied concretely by the judicial
branch. Given the fact that the United States and Israel are still the leading two countries in
employing the military paradigm in connection with terrorism, they have consequently
developed a great deal of case law involving terrorists deemed unlawful combatants. First, we
will take a closer look at the most crucial precedents set by the aforementioned pioneering
nations and then see if other countries’ court systems have followed in their footsteps.
5.1 Israeli
Case
Law
5.1.1 The Public Committee Against Torture in Israel e.a. v. The Government of
Israel
At the end of 2006 the Israeli Supreme Court, sitting as the High Court of Justice, reviewed
whether preventative targeted killings of members of Palestinian terrorist organizations are
permissible.356 The Court discusses the general normative framework of IHL elaborately,
before ruling that customary international law regarding international conflicts principally
355
HUGO
GROTIUS,
The
Rights
of
War
and
Peace
(De
jure
belli
ac
pacis),
1625,
edited
and
with
an
introduction
by
Richard
Tuck,
Indianapolis,
Liberty
Fund
Edition,
2005,
1:101‐02.
356
Israel
Supreme
Court,
HCJ
769/02
Pub.
Comm.
Against
Torture
in
Isr.
v.
The
Gov’t
of
Isr.
[2006],
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf,
last
visited
July
7,
2010.
[hereafter
Pub.
Comm.
Against
Torture
v.
Gov.
of
Israel]
77
governs this issue.357 At the heart of customary IHL lies the principle of distinction, and thus
the protection of civilians from attacks. However, the Court points out that Article 51(3) of
Additional Protocol I to the Geneva Conventions of 1949 dictates that this protection does not
exist when civilians take direct part in hostilities.358 By balancing security needs and
individual rights, the Court comes to the understanding that these strikes are not always
permissible or always forbidden.359 Harming such civilians is allowed with respect for the
customary principle of proportionality.360
Contrary to the Israeli government’s stance, the Supreme Court declines to rule conclusively
on the existence of a third category of “unlawful combatants”.361 It does say, however, that
“the data before us are not sufficient to recognize this third category”.362 This is peculiar
since, as we have touched upon earlier, Israel was the first country to adopt legislation on the
punishment of “unlawful combatants”.363 Nevertheless, the Court endorses a dynamic
interpretation, which would adapt current rules to the new reality, and then goes even further
by already dealing with the status of civilians who constitute unlawful combatants “in the
spirit of such interpretation”.364 The ensuing analysis of when and under which
circumstances civilians will be considered unlawful combatants and subject to targeting
seems to further demonstrate the Court’s (implicit) endorsement of a third category.
5.1.2 A v. State of Israel
One and a half years later the Supreme Court, sitting as the Court of Appeals, upheld the
constitutionality of the earlier mentioned “Incarceration of Unlawful Combatants Law” of
2002.365 It summarizes the Law’s definition of an unlawful combatant as “a foreign party
who belongs to a terrorist organization that operates against the security of the State of
357
Ibid.,
para.
61.
Ibid.,
para.
60.
359
Ibid.
360
Ibid.
361
Ibid.,
para.
28.
362
Ibid.
363
M.
COGEN,
The
Comprehensive
Guide
to
International
Law,
Bruges,
Die
Keure,
2008,
491.
364
Pub.
Comm.
Against
Torture
v.
Gov.
of
Israel,
para.
28.
365
Israel
Supreme
Court,
6659/06,
Anonymous
v.
The
State
of
Israel
[June
11,
2008]
[hereafter
referred
to
as
A
v.
State
of
Israel].
358
78
Israel”.366 It came to this decision on the account of two detainees who were captured in Gaza
and detained because of their association with Hizbollah.367 After analyzing the evidentiary
standards, requirements for treatment and proportionality of the law at issue, the Court ruled
that the violation of the right to personal liberty caused by this particular law is not
excessive.368 It also decided that the detainees in question had been rightfully interned.
The Court reiterated Public Committee Against Torture in Israel v. Government of Israel by
stating that the civilian category does in fact include an unlawful combatant classification,
going against the argument that IHL does not recognize such an intermediate status.369
However, it does not recognize this classification as a separate category but as a subcategory
of civilians.370 As we have discussed in our first chapter, this use of the two-category
approach differs entirely from the more conservative standpoint that there is no such thing as
an intermediate status. Essentially the Israeli Supreme Court does uphold the unlawful
combatant category, only less explicitly than the Supreme Court of the United States has
done. The results, however, favor the American approach over the Israeli since this last theory
shows an inclination for true non-combatant civilians to receive less protection.371
366
A
v.
State
of
Israel,
10.
International
Law
in
Brief
(July
18,
2008),
American
Society
of
International
Law,
http://www.asil.org/ilib080717.cfm,
last
visited
August
5,
2010.
368
A
v.
State
of
Israel,
48.
369
Ibid.,
11.
370
Ibid.,
11.
371
C.
A.
BRADLEY,
“The
United
States,
Israel
&
Unlawful
Combatants”,
Green
Bag,
12
Green
Bag,
2d
397
(Summer
2009).
367
79
5.2 American
Case
Law
5.2.1 Early developments: Ex parte Milligan and Ex parte Quirin
Ex parte Quirin concerned eight German soldiers who had clandestinely entered the United
States on a hostile mission of sabotage, “discarding their uniforms upon entry”.372 As a
consequence, they were prosecuted before a military tribunal, with the violation of the law of
war in the form of unlawful combatancy amongst the charges.373
The Supreme Court distinguished Quirin from a Civil War case, Ex parte Milligan374, in
which a US citizen was accused of conspiring to commit hostile acts against the Union.375
Milligan, not being a part of or associated with the enemy, was captured at his residence in
the state of Indiana and consequently not considered a belligerent but a civilian who could not
be brought before military commissions.376 The principle to be drawn from this decision is
that the military has no jurisdiction over stand-alone civilians, even the ones who commit war
related crimes.377 Yet unlike Milligan, the German soldiers in Quirin were undoubtedly
members of enemy forces, captured in the midst of their hostile mission.378 Therefore, the
German soldiers were viewed as unlawful combatants and punishable before a military
commission.
Postdating and clarifying Milligan379, the unanimously decided Quirin case still constitutes a
major precedent in American and even foreign case law for the use of the unlawful combatant
372
US
Supreme
Court,
Ex
parte
Quirin,
317
US
1,
35
(1942).
[hereinafter
referred
to
as
Ex
parte
Quirin]
373
Ibid.,
at
23.
374
US
Supreme
Court,
Ex
parte
Milligan,
71
U.S.
(4
Wall.)
2
(1866).
375
C.
DEVEAUX,
“Rationalizing
the
Constitution:
The
military
commissions
and
the
dubious
legacy
of
ex
parte
Quirin”,
Akron
Law
Review,
42
Akron
L.
Rev.
13
(2009).
376
Ex
parte
Quirin,
at
II,
para.
12.
377
A.
F.
RENZO,
“Making
a
burlesque
of
the
Constitution:
Military
trials
of
civilians
in
the
war
against
terrorism”,
Vermont
Law
Review,
31
Vt.
L.
Rev.
447‐556
(Spring
2007).
378
Ex
parte
Quirin,
at
II,
para.
14.
379
US
Supreme
Court,
Hamdi
v.
Rumsfeld,
542
U.S.
507,
at
II,
para.
13.
80
classification and trial by way of military commission.380 Although not specifically pertaining
to terrorism, Quirin would sixty years later be called upon by the US executive branch in
establishing military commissions to try terrorists deemed unlawful combatants, and cited
numerously in court decisions involving the “War on Terror”.
5.2.2
The Supreme Court’s “enemy combatant” decisions
On the 28th of June, 2004 the US Supreme Court ruled on the first three detainee petitions
seeking judicial review of their confinement pursuant to the 2001 AUMF and Military Order:
Rumsfeld v. Padilla, Hamdi v. Rumsfeld and Rasul v. Bush. Different from Padilla and
Hamdi, both cases concerning American terrorist suspects in military detention on US
mainland, Rasul dealt with foreign nationals held at the military naval base at Guantanamo
Bay, Cuba.
5.2.2.1 Rumsfeld
v.
Padilla381
José Padilla, a US citizen who was arrested on US soil, was being held at a military base
within the United States as an “enemy combatant” who conspired with Al-Qaida to carry out
terrorist attacks in the United States.382 He went to challenge his detention in a district court in
New York, which denied the petition by holding that the President, as the Commander-inChief, did indeed possess the authority to designate Padilla as an “enemy combatant”.383
Contrary to the District Court, the Court of Appeals then decided that neither the AUMF nor
the President’s Commander-in-Chief powers were enough to allow for Padilla’s military
detention. Although the Supreme Court had the opportunity here to rule on the alleged
380
e.g.
Israel
Supreme
Court,
HCJ
769/02
Pub.
Comm.
Against
Torture
in
Isr.
v.
The
Gov’t
of
Isr.
[2006],
at
para.
25,
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf,
last
visited
July
7,
2010;
US
Supreme
Court,
Hamdi
v.
Rumsfeld,
542
U.S.
507,
at
II,
para.
5.
381
US
Supreme
Court,
Rumsfeld
v.
Padilla.,
542
U.S.
426
(2004).
[hereinafter
referred
to
as
Rumsfeld
v.
Padilla]
382
Rumsfeld
v.
Padilla,
para.
1.
383
L.
N.
SADAT,
“A
presumption
of
guilt:
The
unlawful
enemy
combatant
and
the
U.S.
war
on
terror”,
Denver
Journal
of
International
Law
and
Policy,
37
Denv.
J.
Int’l
L.
&
Pol’y
539
(Fall
2009).
81
authority of the President to detain Padilla militarily, it reversed the decision of the Court of
Appeals not on its merits, but solely on jurisdictional grounds.384
The Padilla case garnered much disapproval not only because it left pertinent questions
unanswered surrounding the legal grounds for the United States’ detention policy, but also
due to the circumstances that Padilla was a US citizen arrested on US soil far from any
battlefield. Critics say that the facts of the case are therefore distinguishable from Quirin and
did not afford sufficient grounds for preventative military detention as an “enemy
combatant”.385
5.2.2.2 Hamdi
v.
Rumsfeld386
Like José Padilla, Yaser Hamdi was a US citizen held on US soil who challenged his military
detention with a habeas corpus petition in civil court. The Court of Appeals held that the
petitioner’s detention was legitimately authorized and that Hamdi was not entitled to
challenge his “enemy combatant” designation further.387 However, this time the Supreme
Court did take up the issue of the legality of classifying an individual as an “enemy
combatant”, and addressed the process due to such a detainee who seeks to challenge that
classification.388
Unlike Padilla but similar to Quirin, where there was no doubt that the accused persons did
not qualify for either lawful combatant status or civilian protection, the Court experienced no
difficulties in treating a man “who took up arms with the Taliban” during the conflict in
Afghanistan as an (unlawful) combatant.389 With these circumstances in the backdrop, the
Court held that the executive branch does indeed have the authority to detain such US citizens
384
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring
2005).
385
S.
A.
PITTS‐KIEFER,
“Jose
Padilla:
Enemy
combatant
or
common
criminal?”,
Villanova
Law
Review,
48
Vill.
L.
Rev.
875
(2003).
386
US
Supreme
Court,
Hamdi
v.
Rumsfeld,
542
U.S.
507.
[hereinafter
referred
to
as
Hamdi
v.
Rumsfeld]
387
Hamdi
v.
Rumsfeld,
para.
1.
388
Ibid.
389
Hamdi
v.
Rumsfeld,
at
I,
para.
2.
82
as “enemy combatants”.390 Nonetheless, to what extent does the Government possess this
authority? Hamdi specifically objected to the indefinite character of the preventative detention
to which he was subjected.391 The US government responded with the argument that “the
detention of enemy combatants during World War II was just as ‘indefinite’ while that war
was being fought”, implying that if that war had gone on for 20 years the rules would have
been the same.392 Although the Court agrees with this argument, it considers the potential
prospect of perpetual detention over the more acceptable uncertain ending of active hostilities
in concluding that, as long as the United States armed forces are still involved in active
combat in Afghanistan, the detentions are indeed authorized by the congressional passage of
the AUMF.393 The Court’s reasoning confirms our earlier standpoint that outside the situation
of an actual armed conflict the “War on Terror” should be construed as merely
metaphorically.394
So even though the Hamdi ruling appears to hand the executive branch extensive authority to
preventatively detain “enemy combatants” in the “War on Terror”, a closer reading brings out
the limits of this authority. In addition to deciding that Yaser Hamdi could not be held
indefinitely without due process, the Supreme Court also said that Congress had not in fact
authorized detentions beyond the end of the Afghanistan war.395 It noted that the “War on
Terror” might last for two generations, and declared that for practical purposes that would be
indefinite detention.396 It then decided that the detention could not last for the duration of the
“War on Terror” but only for the duration of the war in Afghanistan. Specifically, the Court
wrote, “We understand congress’s grant of authority to include the authority to detain for the
duration of the relevant conflict, and our understanding is based on the longstanding ‘Law of
War’ principles. If the practical circumstances of a given conflict are entirely unlike those of
the conflict that informed the development of the ‘Law of War’, that understanding may
390
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring
2005).
391
Hamdi
v.
Rumsfeld,
at
II,
para.
8.
392
Ibid.
393
C.
D.
ELMORE,
“An
enemy
within
our
midst:
Distinguishing
combatants
from
civilians
in
the
war
against
terrorism”,
University
of
Kansas
Law
Review,
57
U.
Kan.
L.
Rev.
213
(Oct.
2008).
;
Hamdan
v.
Rumsfeld,
at
II,
para.
10.
394
See
Chapter
4.
395
Ibid.,
at
II,
para.
8.
396
Ibid.
83
unravel.”397 The Court here seems to take note that the traditional war framework may be
inapplicable given the unique nature of the “War on Terror”. Although the Court ruled that
the government does in fact possess the authority to preventatively detain individuals as
“enemy combatants”, we must also conclude that there was no such grant of congressional
authorization to hold prisoners indefinitely.398
As one author appropriately observes:
“The longer the conflict has gone on, the less apt the pure war model has become, and
the less comfortable the public and particularly the Court has become with the
exertion of presidential powers not specifically authorized by the legislature, much
less action taken in active tension with the laws the legislature has passed… The result
has been a series of confrontation between the executive and judicial branches which
has sought to rein in unilateral executive action as the wars have gone on.”399
5.2.2.3 Rasul
v.
Bush400
In Rasul certain foreign detainees held in military detention at the US Naval Base at
Guantanamo Bay, who were captured in Afghanistan during hostilities between the US and
the Taliban and consequently designated as “enemy combatants”, brought an action before the
Court contesting both the legality and conditions of their confinement. The question at hand
was whether foreign nationals held at GTMO had a right to challenge their detention before a
federal judge. Upon hearing the case, the Court rejected the government’s argument that it
lacked jurisdiction over habeas corpus appeals401 by detainees at Guantanamo Bay, Cuba
because of two reasons. First, the military base there qualifies de facto as American territory
397
Ibid.,
at
II,
para.
10.
Ibid.,
at
II,
para.
9;
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring
2005).
399
B.
WITTES,
The
Law
and
the
Long
War:
The
Future
of
Justice
in
the
Age
of
Terror,
London,
The
Penguin
Press,
June
2008,
107.
400
US Supreme Court, Rasul v. Bush, 542 U.S. 466 (2004). [hereinafter referred to as Rasul v.
Bush]
401
A
“habeas
corpus”
petition
is
used
to
challenge
a
person’s
imprisonment
before
a
court
to
see
whether
that
person
has
been
detained
lawfully
and
whether
or
not
the
person
should
be
released.
398
84
and second, the habeas corpus statute does not discriminate on the basis of nationality.
Detainees at Gitmo, be it US citizens or foreign nationals, do have the right to effectively
challenge their detention in federal US courts on a statutory basis.402
Seeing as the detention facility at Guantanamo Bay did resort under the jurisdiction of the US
federal court system, many habeas petitions were filed by and on behalf of detainees at Gitmo
after this precedent.403 This resulted in conflicting decisions by the different judges because
the Supreme Court had left several pivotal questions unanswered.404 For one, it did not clarify
what specific rights “enemy combatants” may have under IHL. Also, the ruling leads to
wonder whether or not the same reasoning that was applied here to Guantanamo Bay, Cuba
could also apply to other territories. Is it possible that US military abroad locations elsewhere
might qualify as being under the “complete jurisdiction and control” of the United States as
well?405 Although the base at Guantanamo Bay was considered to qualify as such especially
due to the lease agreements with Cuba and no other cases have touched upon this issue since,
the decision does appear to leave room for similar situations in the future.
In conclusion for Padilla, Hamdi and Rasul, we can say that the executive’s claim that it has
the authority to incarcerate suspected terrorists without any judicial review was rejected.
Every detainee designated as an “enemy combatant”, be it a US citizen or a foreign national,
can now exercise the right to challenge his detention before a US civil court.406 However, the
Supreme Court has upheld the government’s power to designate terrorist suspects as “enemy
combatants” and to hold them without charges of a criminal offence or according them
prisoner of war status under the Geneva Conventions.407 The Court also did not provide us
with much detail concerning the substantive and procedural standards this judicial review
402
L.
N.
SADAT,
“A
presumption
of
guilt:
The
unlawful
enemy
combatant
and
the
U.S.
war
on
terror”,
Denver
Journal
of
International
Law
and
Policy,
37
Denv.
J.
Int’l
L.
&
Pol’y
539
(Fall
2009).
403
J.
K.
ELSEA
&
M.
J.
GARCIA,
“Enemy
Combatant
Detainees:
Habeas
Corpus
Challenges
in
Federal
Court”,
Congressional
Research
Service
(February
3,
2010),
http://www.fas.org/sgp/crs/natsec/RL33180.pdf,
last
visited
June,
2010.
404
Ibid.
405
Rasul
v.
Bush,
at
IV,
para.
1.
406
D.
MOECKLI,
“The
US
Supreme
Court’s
‘Enemy
Combatant’
decisions:
A
‘major
victory’
for
the
rule
of
law?”,
Journal
of
Conflict
&
Security
Law,
10
J.
Conflict
&
Security
L.
75
(Spring
2005).
407
Ibid.
85
should live up to, nor did it extensively take up the international law dimensions of the
cases.408
5.2.3 Response to the “enemy combatant” decisions
5.2.3.1 Combatant
Status
Review
Tribunals
and
the
Detainee
Treatment
Act
It did not take long for the legislative and executive responses to the enemy combatant
decisions to arrive by way of creation of the Combatant Status Review Tribunals (CSRTs)
and their congressional grant with the passage of the Detainee Treatment Act (DTA)
409
,
which included provisions eliminating habeas review by or on behalf of Guantanamo
detainees.410 CSRTs would either confirm a detainee’s status as “enemy combatant” or
recommend the discontinuation of that designation.411
However, they could not decide
whether combatants were lawful or unlawful. Military commissions had to make this
determination themselves when assuming jurisdiction over an “enemy combatant”.412 With
these steps, the government and congress intended to remedy the fallacies uncovered by the
aforementioned Supreme Court decisions. Nevertheless at the end of June 2006, the Supreme
Court struck down the military commissions as violating both the Geneva Conventions and
the United States’ Uniform Code of Military Justice (UCMJ).413
408
Ibid.
Detainee
Treatment
Act
of
2005,
Pub.
L.
No.
109‐148,
§1005(e);
Paul
Wolfowitz,
Deputy
Sec’y
of
Def.,
Order
Establishing
Combatant
Status
Review
Tribunal
paras.
g(12),
13(i)
(July
7,
2004).
410
H.
KITROSSER,
“Reclaiming
skepticism:
Lessons
from
Guantanamo”,
William
Mitchell
Law
Review,
35
Wm.
Mitchell
L.
Rev.
5067
(Special
2009).
411
J.
K.
ELSEA
&
M.
J.
GARCIA,
“Enemy
Combatant
Detainees:
Habeas
Corpus
Challenges
in
Federal
Court”,
Congressional
Research
Service
(February
3,
2010),
http://www.fas.org/sgp/crs/natsec/RL33180.pdf,
last
visited
June,
2010.
412
W.
A.
TASHIMA,
“The
war
on
terror
and
the
rule
of
law”,
Asian
American
Law
Journal,
15
Asian
Am.
L.
J.
245
(May
2008).
413
US
Supreme
Court,
Hamdan
v.
Rumsfeld,
548
U.S.
557
(2006),
para.
4.
409
86
5.2.3.2 Hamdan
v.
Rumsfeld414
Salim Ahmed Hamdan is a Yemeni national who was captured by militia forces during
hostilities in Afghanistan and turned over to the US military.415 Upon review, a CSRT
confirmed his designation as an “enemy combatant”.416 He brought action against then
Secretary of Defense Donald Rumsfeld, who wanted to try him before a military commission,
challenging the military commission procedures as conflicting with the UCMJ and asserting
he was entitled to prisoner of war status under the Geneva Conventions.417
The District Court found that the military commission rules exceeded the existing statutory
authority and went into the international law dimensions of the case by ruling that Hamdan
was at least entitled to prisoner of war status until a competent tribunal determined otherwise
as specified by article 5 of the Third Geneva Convention.418 The Court of Appeals later
reversed by holding that the Geneva Conventions are not enforceable in federals courts, upon
which the Supreme Court granted certiorari to hear the case while referring to Ex parte
Quirin.419 The Supreme Court concluded that the military commission convened to try
Hamdan violated both the UCMJ and the Geneva Conventions, though by way of the minimal
fair trial guarantees of Common Article 3 because the Court declined to agree on the
international nature of the conflict in terms of IHL.420 Moreover, the detention policy was
regarded as not properly authorized by congressional power with the enactment of the AUMF
or the DTA, or by the President’s war powers.421
414
US
Supreme
Court,
Hamdan
v.
Rumsfeld,
548
U.S.
557
(2006).
[hereinafter
referred
to
as
Hamdan
v.
Rumsfeld]
415
Hamdan
v.
Rumsfeld,
para.
1.
416
J.
C.
DEHN,
“The
Hamdan
case
and
the
application
of
a
municipal
offence”,
Journal
of
International
Criminal
Justice,
7
J.
Int’l
Crim.
Just.
63
(March
2009).
417
J.
K.
ELSEA
&
M.
J.
GARCIA,
“Enemy
Combatant
Detainees:
Habeas
Corpus
Challenges
in
Federal
Court”,
Congressional
Research
Service
(February
3,
2010),
http://www.fas.org/sgp/crs/natsec/RL33180.pdf,
last
visited
June,
2010.
418
Ibid.
419
Hamdan
v.
Rumsfeld,
para.
3.
420
Ibid.,
at
VI,
para.
1
and
D,
para.
1;
L.
N.
SADAT,
“A
presumption
of
guilt:
The
unlawful
enemy
combatant
and
the
U.S.
war
on
terror”,
Denver
Journal
of
International
Law
and
Policy,
37
Denv.
J.
Int’l
L.
&
Pol’y
539
(Fall
2009).
421
D.
WEISBRODT
&
A.
W.
TEMPLETON,
“Fair
trials?
The
manual
for
military
commissions
in
light
of
Common
Article
3
and
other
international
law”,
Law
and
Inequality:
A
Journal
of
Theory
and
Practice,
26
Law
&
Ineq.
353
(Summer
2008).
87
So the Court invalidated the system of military commissions then in place by considering it as
not properly authorized and in violation of certain national and international law provisions,
although the Court did not dig deep into the international law dimensions of the case. Yet it
did not address if the government has the power as such to detain unlawful combatants for the
duration of hostilities.422
It seems that over the years since the invasions of Afghanistan and Iraq the Court has
exercised excessive judicial restraint. Critics of the administration, and skeptics of the Court
point out that in neither Rasul nor Hamdan did the court forbid the policy course the
administration had chosen to take; “for all the attention the cases garnered, they precluded
neither military detention at Guantanamo without charge nor trial by tribunal lacking the
normal safeguard of both the civilian justice system and the general court martial.”423
5.2.4
Response to Hamdan
5.2.4.1 The
Military
Commissions
Act
of
2006
This time Congress reacted to the Supreme Court’s objections by passing the Military
Commissions Act of 2006.424 Besides providing explicit authorization to convene military
commissions to try “unlawful enemy combatants”, the MCA abrogated the jurisdiction of US
courts to hear challenges by alien enemy combatants in US military detention.425
5.2.4.2 Boumediene
v.
Bush426
In June 2008, the Supreme Court again addressed the anomaly of Gitmo when alien detainees
designated as “enemy combatants” and detained there sought habeas review of their
422
Hamdan
v.
Rumsfeld,
at
VII,
para.
1.
B.
WITTES,
The
Law
and
the
Long
War:
The
Future
of
Justice
in
the
Age
of
Terror,
London,
The
Penguin
Press,
June
2008,
15.
424
Military
Commissions
Act
of
2006,
Pub.
L.
No.
109‐366,
120
Stat.
2600
(Oct.
17,
2006).
425
B.
A.
BOSWELL,
“True
Terror:
Life
after
Guantanamo”,
UMKC
Law
Review,
77
UMKC
L.
Rev.
1093
(Summer
2009).
426
US
Supreme
Court,
Boumediene
v.
Bush,
553
U.S
723
(2008).
[hereinafter
referred
to
as
Boumediene
v.
Bush]
423
88
prolonged detention.427 In a 5-4 decision, the Court found that the US exercises de facto
sovereignty over the base, as such affording the US Constitution extraterritorial application.
The US government had held the detainees at Guantanamo Bay as unlawful combatants in the
belief that at the base there, they would sit beyond the reach of the American court system.428
In Boumediene, the Court decided that prisoners at Guantanamo Bay do have a right to
habeas corpus under the Constitution and the MCA entails an unconstitutional suspension of
that right. Guantanamo detainees could now challenge their CSRT’s determination as “enemy
combants” in federal district courts.429 A similar analysis was already conducted four years
before in both Hamdi and Rasul, but then it was only held that detainees at Gitmo came
within the statutory scope of habeas corpus in federal courts, as opposed to the constitutional
scope under Boumediene.430
Even though the Court struck a huge blow to the 2006 MCA, it brushed aside any questions
concerning the legitimacy of the “unlawful enemy combatant” classification. Furthermore and
as commented on Rasul, the question here again comes up whether the extraterritorial
application of the Constitution could be applied to US detention centers elsewhere in the
world.431 In addition, criticism was raised pursuant to the case because of the fact that even
now the detainees at Gitmo do have a constitutional right to challenge their detention in US
courts, those courts would not be able to handle all of these cases quickly.432
427
Boumediene
v.
Bush,
para.
2.
B.
WITTES,
The
Law
and
the
Long
War:
The
Future
of
Justice
in
the
Age
of
Terror,
London,
The
Penguin
Press,
June
2008,
30.
429
E.
HERNANDEZ‐LOPEZ,
“Boumediene
v.
Bush
and
Guantanamo,
Cuba:
Does
the
‘empire
strike
back’?”,
SMU
Law
Review,
62
SMU
L.
Rev.
117
(Winter
2009).
430
B.
J.
PRIESTER,
“Terrorist
detention:
directions
for
reform”,
University
of
Richmond
Law
Review,
43
U.
Rich.
L.
Rev.
1021
(March
2009).
431
E.
HERNANDEZ‐LOPEZ,
“Boumediene
v.
Bush
and
Guantanamo,
Cuba:
Does
the
‘empire
strike
back’?”,
SMU
Law
Review,
62
SMU
L.
Rev.
117
(Winter
2009).
432
J.
W.
HALL,
“Time
to
close
Gitmo’s
camp
‘Injustice’”,
Champion,
32‐JAN
Champion
5.
428
89
5.2.5 Current state of affairs
5.2.5.1 The
Military
Commissions
Act
of
2009
As one of his first acts as President of the United States, Barack Obama by means of an
Executive Order ordered the closure of the detention camp at Guantanamo Bay, which
satisfied the criticism after Boumediene that courts alone would not be able to clear Gitmo
speedily. Then after President Obama took office, Congress enacted the Military
Commissions Act of 2009. Although this act altered many rules, it made only minor changes
regarding jurisdiction. However, besides stepping away from the “enemy combatant” label
and redefining who may be detained as unlawful combatants, the Obama administration also
persists in militarily detaining members of the Taliban or Al-Qaida under the authority
provided by the AUMF, even if these individuals are captured far from the battlefield of
Afghanistan.433 One significant difference in standard involves the addition of a substantive
“purposefully and materially” requirement to the notion of “supporting hostilities against the
United States or its coalition partners”.434 This particular part of the current definition for the
“unprivileged enemy belligerent” currently leads to a multitude of conflicting judgments. For
now it appears that the new Administration’s remodeling effort has very much left the US
federal courts searching again.
5.2.5.2 Al‐Bihani
v.
Obama435
Ghaleb Nassar Al-Bihani is a national of Yemen who was captured in 2002 on the Afghan
battlefield alongside Taliban armed forces who were fighting against the Northern Alliance.436
As so many who were captured, he was transferred to GTMO and designated an “enemy
combatant”. Al-Bihani filed his petition challenging his detention in a US district court upon
hearing the Supreme Court’s ruling in Rasul that statutory habeas corpus jurisdiction of
433
J.
K.
ELSEA
&
M.
J.
GARCIA,
“Enemy
Combatant
Detainees:
Habeas
Corpus
Challenges
in
Federal
Court”,
Congressional
Research
Service
(February
3,
2010),
http://www.fas.org/sgp/crs/natsec/RL33180.pdf,
last
visited
June,
2010.
434
National
Defense
Authorization
Act
for
Fiscal
Year
2010,
Pub.
L.
111‐84,
123
Stat.
2190,
enacted
October
28,
2009,
981.
435
D.C.
Circuit,
Al‐Bihani
v.
Obama,
No.
09‐5051,
2010
WL
10411
(Jan.
5,
2010)
[hereafter
referred
to
as
Al‐Bihani
v.
Obama]
436
Al‐Bihani
v.
Obama,
2.
90
federal courts extended to detainees held at Guantanamo Bay.437 However, the district court
only dealt with the petition after the Boumediene decision in 2008.438 The court found that AlBihani was rightfully detained as someone “who was a part of or supporting Taliban or AlQaida forces, or associated forces that are engaged in hostilities against the United States or
its coalition partners”.439 Early 2010, the Court of Appeals took on the issue of the executive
branch’s detention authority. The Court backed the new definition and labeling of individuals
as “unprivileged enemy belligerents”, a phrase that is merely another twist on the unlawful
combatant category under IHL, and found that either support or membership is sufficient to
justify such a designation.440 What’s more, the Court did not believe that IHL has any
relevance when interpreting the detention power of the US government pursuant to the
AUMF.441
Up until now, Al-Bihani v. Obama constitutes the ruling precedent for the Circuit of the
District of Columbia. This is regrettable because the Court has the idea that IHL is irrelevant
in these cases, while the government’s classification clearly accrues from it and moreover, the
United States should be bound by international law at any rate. An expert in habeas cases
vividly alluded to the consequences of this judgment by stating that the Court of Appeals
“had gone out of its way to poke a stick in the eye of the Supreme Court”.442 To be continued.
5.3 Influence
Following these cases, we can conclude that the detention and punishment of unlawful
combatants is still a little rough around the edges. Although the Israeli and American case law
have made vast steps in the past decade, the courts will need to define the legal boundaries
and protections concerning this classification further in the future. After all, weighing
437
Ibid.,
3.
Ibid.
439
Ibid..,
4;
Cf.
supra
note
373.
440
Ibid.,
9.
441
J.
K.
ELSEA
&
M.
J.
GARCIA,
“Enemy
Combatant
Detainees:
Habeas
Corpus
Challenges
in
Federal
Court”,
Congressional
Research
Service
(February
3,
2010),
http://www.fas.org/sgp/crs/natsec/RL33180.pdf,
last
visited
June,
2010.
442
J.
SCHWARTZ,
“Court
backs
war
powers
over
rights
of
detainees”,
The
New
York
Times,
5
Jan.
2010,
http://www.nytimes.com/2010/01/06/us/06detain.html,
last
visited
August
5,
2010.
438
91
personal liberty against national security has proven to be an exceptionally delicate balancing
exercise.443
Due to the fact that other countries so far have been able to deal with terrorist organizations
by way of domestic criminal laws and applying the law enforcement approach instead of
having to resort to IHL, it is difficult to track whether the United States’ and Israel’s case law
has left its mark on the rest of the world.444 However, we can say that the just mentioned
strenuous balance between national security and personal liberty in matters of terrorism has
filtered through to other nations, by way of detention policies and other measures of nations to
protect its citizens from this rising threat.
Across the Atlantic, similar issues are also emerging. In A and others v. Secretary of State, the
British House Of Lords ruled that certain foreign detainees could not be held indefinitely
without trial. Although the Court decided that the authority stemming from the “AntiTerrorism, Crime and Security Act” of 2001 was sufficient to detain suspected terrorists, the
law itself was deemed discriminative between foreign nationals and UK citizens and therefore
incompatible with Article 14 of the European Convention of Human Rights.445 The legislative
branch reacted soon after with the enactment of the “Prevention of Terrorism Act” of 2005.
In 2007 the legality of a legislative act concerning national security was challenged again in
another nation, this time before the Supreme Court of Canada.446 In Charkaoui v. Canada, the
Court examined provisions of the “Immigration and Refugee Protection Act” (IRPA) in light
of the Canadian Constitution.447 The act in question permitted the designation of foreign
nationals as inadmissible to Canada and subject to detention under a “security certificate”.448
443
A.
S.
DEEKS,
“Administrative
detention
in
armed
conflict”,
Case
Western
Reserve
Journal
of
International
Law,
40
Case
W.
Res.
J.
Int’l
L.
323
(2009).
444
J.
B.
BELLINGER,
III,
“Legal
Issues
in
the
War
on
Terrorism”,
speech
at
the
London
School
of
Economics,
October
31,
2006.
445
United
Kingdom
House
of
Lords,
A
and
others
v.
Secretary
of
State
for
the
Home
Department,
[2004]UKHL
56,
Para.
194.
446
Canada
Supreme
Court,
Charkaoui
v.
Canada,
2007
SCC
9,
[2007]
1
S.C.R.
350.
[hereafter
referred
to
as
Charkaoui
v.
Canada]
447
K.
GIBSON
and
T.
DAVIDSON,
“Experts
meeting
on
security
detention
report”,
Case
Western
Reserve
Journal
Of
International
Law,
40
Case
W.
Res.
J.
Int’l
L.
323
(2009).
448
A.
SCHWARTZ,
“The
rule
of
unwritten
law:
A
cautious
critique
of
Charkaoui
v.
Canada”,
Review
of
Constitutional
Studies,
13
Rev.
Const.
Stud.
179
(2008).
92
This detention, which has an administrative character because it takes place in peacetime449, is
intended to serve as a temporary solution for persons who are considered a risk to national
security until deportation can ensue.450 However, critics claim that this detention de facto
amounts to indefinite detention, which shows that the United States’ difficulties since the
September 11 attacks are not isolated incidents.451 In the end, the Court held the IRPA’s
judicial review procedures to be inadequate as to protect petitioners’ rights under the
Constitution and not proportionate to national security objectives, a familiar critique on yet
another government going out of (legal) bounds.452
449
Administrative
detention
is
the
peacetime
equivalent
of
deprivation
of
liberty
for
security
reasons
without
raising
criminal
charges.
450
Ibid.
451
Ibid.
452
K.
GIBSON
and
T.
DAVIDSON,
“Experts
meeting
on
security
detention
report”,
Case
Western
Reserve
Journal
Of
International
Law,
40
Case
W.
Res.
J.
Int’l
L.
323
(2009).
93
CONCLUSION
Our starting point to discuss the “unlawful combatant” was the elementary principle of
distinction between combatants and civilians. Lawful combatants are entitled to take part in
hostilities, will be granted prisoner of war protections according to the Third Geneva
Convention upon capture and will also receive immunity from prosecution for lawful acts of
war. Civilians are protected from the perils of war by the Fourth Geneva Convention of 1949
and only lose their immunity from attack for as long as they directly participate in hostilities.
Although there is something to be said for the standpoint of integral coverage as being more
rooted in modern treaty law, we cannot ignore the many examples of state practice and legal
literature on the subject. Nor can we deny that in any international armed conflict there are
people who deliberately disguise themselves; who use secret methods of warfare; that there
are one-time lawful combatants who fail to distinguish themselves from the civilian
population; civilians who take up arms temporarily or those who continuously take direct part
in hostilities without authorization; combatants who not fulfill the requirements of Article 4 of
the Third Geneva Convention and so on. The fact that modern treaty law does not mention the
unlawful combatant category explicitly, does not instantly lead to its non-existence or only de
facto character. Throwing all of these aforementioned examples into the same class would
irrefutably lead to lesser protection for innocent civilians.
Yet, what they all do have in common is that they do not follow the rules for favored
treatment as prisoners of war upon capture. They are unlawful combatants, who take direct
part in hostilities without having the right to do so and can be punished as such.
Comparable to the lawful combatant, the unlawful combatant is subject to capture and
detention. However, he is not a member of the armed forces of a Party to the conflict and does
not enjoy the lawful combatant’s privilege to take part in hostilities and be granted prisoner of
war status upon capture under the Third Geneva Convention. Therefore, the unlawful
combatant can be prosecuted for his mere participation in hostilities and punished by military
tribunals.
This is not to say that this individual is completely without protection. The unlawful
combatant is at the very least entitled to a fair and regular trial, respect for the minimum
94
standards of treatment during his detention and the minimal guarantees of customary
international law expressed in Article 75 of Additional Protocol I to the Geneva Conventions
of 1949.
A fairly “new” type of unlawful combatant is the international terrorist involved in an
international armed conflict. Both Israel, in the situation of belligerent occupation, and the
US, with its international military campaigns in Afghanistan and Iraq, have encountered this
type of unlawful combatant. This has led to a considerable amount of case law on behalf of
these two nations. Both the Israeli Supreme Court and the US Supreme Court, regardless of
the critiques, have essentially upheld the governments’ power to label terrorist suspects as
unlawful combatants, subject to preventative detention or trial and punishment at the hands of
the Detaining Power. Besides the developments in their own legal systems, the state practice
of Israel and the US has moreover lead to a spillover effect on other countries that are
struggling with national security issues arising from the international terrorist threat.
However, it remains crucial to make a clear distinction between facing this threat manu
militari and facing it in peacetime seeing as a different set of rules applies depending on the
employed paradigm. Terrorist acts committed outside the situation of an armed conflict are
not regulated by IHL and terrorist attacks that do not trigger the right to self-defense do not
amount to the application of ius ad bellum. Instead, domestic or international criminal law and
international human rights law govern these situations. During peacetime, the law
enforcement approach is as a rule considered the only legitimate strategy to fight terrorism.
Only when a military response to terrorism is warranted – i.e. at the very least in the
circumstances of a “war by proxy” – terrorists themselves and their organization become
combatants instead of common criminals, yet without the protections of lawful combatants.
IHL and unlawful combatant status are only relevant to a “War On Terror” to the extent that it
coincides with an actual armed conflict. So at least as long as terrorist organizations are
harbored by states, both the law enforcement approach and the military response will continue
to be a part of the fight against this unconventional threat.
Every single one of these “new” conflicts is different, but if we can identify which framework
applies to future situations without conflating law of war principles with domestic criminal
matters and follow the applicable law conscientiously, we will be able to confront the
95
international terrorist organizations head on whilst staying true to our constitutional values
and the rule of law. As the Supreme Court of Israel accurately refuted the saying by Cicero453:
“Every struggle of the state – against terrorism or any other enemy – is conducted
according to the rules and law. There is always law that a state must comply with. There
are no black holes.”454
453
See
p.
1.
“Inter
arma
enim
silent
leges.”
Israel
Supreme
Court,
HCJ
769/02
Pub.
Comm.
Against
Torture
in
Isr.
v.
The
Gov’t
of
Isr.
[2006],
elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf,
last
visited
July
7,
2010.
454
96
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