Why Terrorists Are NOT Combatants

Over at Opinio Juris, guest commentator Marko Milanovic has posted on the interface between the law of war (he uses the "modern" term International Humanitarian Law) and International Human Rights Law.  One of his many points is that in its seminal December 2006 opinion on the legality of targeted killings, the Israeli High Court of Justice cited a mixture of rules from the two regimes.  I thought a [lightly edited here] comment I posed in response, which begins with a quotation from Marko's post, might be of interest to readers of this blog:


What is so interesting here is that only the last of these conditions, i.e. the principle of proportionality, is a rule of international humanitarian law. There is no rule of humanitarian law obliging states not to kill combatants if they can be arrested or detained - as long as the combatant is not hors de combat, he can be lawfully killed.

That's true, but what Marko misses is that terrorists are not "combatants."  Many readers are likely familiar with the famous four criteria found in Article 4 of the Third Geneva Convention concerning eligibility for POW status; i.e., requirements to: (a) be commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conducting their operations in accordance with the laws and customs of war. What seems less well known, however, is that these criteria predate the Geneva Conventions/International Humanitarian Law by at least a half century.  They are the qualifications for enjoying belligerent rights as a  combatant first explicitly ennumerated in the 1874 Brussels Declaration and subsequently incorporated in the 1899 and 1907 Hague Regulations for Land Warfare.

The essential point is that the combatant enjoys all the "rights" of war.  Modern commentators seem fixated on POW status.  But the essential right of a combatant is authority to kill the enemy on sight and destroy his war material while enjoying complete immunity from domestic laws while doing so.  In exchange for the this immunity, the combatant is himself subject to being shot on sight.  While his surrender must be accepted if offered, an adversary need not offer the enemy this opportunity before attacking, unlike law enforcement personnel who must do so. 

The U.S.; Israel; indeed almost all civilized nations wish to deny terrorists any lawful standing for their attacks.  That's perfectly acceptable under the law of war; at a minimum they don't wear distinguishing emblems, frequently don't carry their arms openly, and certainly don't seem to follow the law of war themselves.  But these individuals are not then "combatants."  While modern International Humanitarian Law instruments (e.g., Geneva IV, Additional Protocol I) seem to support using the term "civilian" to describe those not enjoying belligerent or combatant immunity, I believe the better term is "non-combatant."  There are actually a number of uniformed military personnel, such as doctors and other medical personnel, who also fall outside the scope of combatants and lack authority to either kill or be directly targeted, but are also not "civilians." 

As the Israeli Supreme Court correctly noted, the "civilian" (or "non-combatant") has no right to participate in hostilies and may be shot on sight while doing so.  The Court then went on to reasonably, I think, suggest that in the modern environment "participating" should be interpretted more broadly than literally being in the process of conducting an attack. But the key point is that lacking the belligerent's right to engage in hostilities, the terrorists become ordinary criminals by doing so, and are subject to the sanctions (but also the rights) accorded to criminal defendants vice those provided to combatants by the law of war.  That's why the Israeli court correctly notes they should be apprehended where possible and subjected to ordinary criminal regimes.  This is especially true in occupied territory where the occupier is supposed to be maintaining public life and safety, not making war on the inhabitants.

It is extremely unfortunate that the Bush Administration has clouded the issue by its manufactured term "enemy combatant."  Either a terrorist is a combatant, enjoying immunity from conventional criminal law, or they are a non-combatant, subject to being targeted while engaged in hostilities but otherwise subject to conventional criminal sanctions and procedures.

Comments

[Daniel J. Graeber]

Thank you so much for pointing out this issue. I think it's one that gets glossed over in the larger discussions on who is what in the 'war on terror'. Regarding Marko's post on Opinio Juris, it seems that - and this is something of a sub-issue - that there was a misreading of international human rights law and international law. It seemed some would argue they are one in the same.

Regardless, there was a posting earlier here regarding the status of Jose Padilla which argued he was a 'soldier' for al Qa'ida. Im happy to see the four points laid out in here clarification.

In discussing the status of detainees and the use of civilian courts, I've wondered in my own research why the US is so reluctant to use civlian courts to try suspected terrorists. It worked in the US regarding the 1993 WTC bombings. The civlian courts have worked in other countries as well, for example, Carlos the Jackal. Why the apprehension now? The consipiracy theorist in me would think that there are some secrets being held here on both sides of the coin; both from al Qa'ida operatives and from US officials in regards to their international conduct. However, given the broad scale, I could also take the argument that processing the sheer volume warrants a seperate commission, ie military tribunal (not to mention states secrets).

It was pointed out to me by the folks at SCOTUS blog that the US did not much enjoy its experience in civlian courts with Zacarias Moussaoui and probably didn't enjoy Padilla too much either.

[Anderson]

I've wondered in my own research why the US is so reluctant to use civlian courts to try suspected terrorists.

Because we torture the suspects.

[Tung Yin]

Very well put, Dave, but I take your point not to be that the war model can't be employed against al Qaeda, but rather that there are legal consequences to doing so, one of which is that "terrorists" would have to be accorded combatant immunity for killings that they commit in compliance with the law of war.

[Howard Gilbert]

"Terrorist" is an unworkably imprecise term. On March 10, 1945 330 B29s appeared over Tokyo to drop napalm bombs that destroyed 16 square miles of the city, leaving a million people homeless and killing 100,000 people, mostly women, children, the old and infirm. They were burned alive. That is typically called "combat". On 9/11 one plane was crashed into the Pentagon, military headquarters of the US. Admittedly civilians on the plane died, but far fewer than died from a typical US WWII bombing raid on what were mostly civilian targets. We call this spectacularly successful attack on a military target "terrorism".

I would suggest that if you want to claim that the enemy we face in al Qaeda are not combatants, then you better come up with a realistic alternative classification that isn't racist nonsense. For example, when they used a boat to attack the USS Cole, a navy warship, how do you argue that it wasn't combat? Remember, before al Qaeda turned its attention to the US, it participated in the decade of warfare that expelled the Soviets from Afghanistan.

Until recently we have confronted enemys that agree to play by the rules of the white, christian, european, colonial powers. Wear uniforms, have ranks like private and general, carry a flag, march to music. The colonial powers were so successful that other cultures (Japan, China, Turkey) adopted the western military tradition completely. Now, for the first time in recent history, we confront an enemy that plays by a different set of rules, Sharia, that date back 1500 years. They don't want to look like or act like the British Army of the 19th century. They take inspiration from the armies that spread Islam to Spain and to India. Those armies didn't wear uniforms, salute, have ranks, and march to a drum.

Now you can insult the enemy and call them "rag heads", "camel jockeys", and "terrorists" just like a previous generation desparaged "Japs" and "Krauts". But don't pretend that it is a legal argument. Ultimately you are saying that no matter what the Islamic fundamentalists do, any army they create according to Sharia is just a bunch of trash you don't have to accept as "real soldiers". That is at least cultural bigotry if not outright racism.

I say that if they train as soldiers, carry arms openly, follow the orders of commanding officers, and conduct their operations according to some reasonable laws of war then we should treat an Islamic army with military respect. Our objections should then be limited to conduct, not the absence of pretty red uniforms.

The hijackers who crashed the plane into the Pentagon began by committing piracy. Piracy is not excused because the target happend to be military. So they, and more importantly their commanding officers who are now "high valued" detainees at Guantanamo, should be charged with piracy. They should not be charged with terrorism. They should not be charged with a single death on the ground (though they can be hung for the deaths of the air crew and passengers on the plane). It is sufficient to hold them responsible for the part of their conduct that falls clearly outside the laws of war, international law, and civilized behavior. But they can be charged as soldiers who committed an act of piracy and not as "camel jockeys" who committed an act of terrorism.

Israel confronts a military enemy that fires rockets and dispatches bombs. When the US or Israel want to bomb a target, we use F16's. When al Qaeda or Hamas want to hit a target, they have to strap the bomb on the back of a 16 year old kid. When Israel kills the person who made the bomb, that is just as legitimate a military target as a German factory making V2 rockets.

I don't agree with the Bush Administation's attempt to denegrate the enemy, but neither will I accept the left wing attempt to claim they are all criminals. Neither side gives the enemy the respect it deserves. For the first time since the Crusades, we confront an enemy that doesn't play by Western rules. We can throw away the rule book and behave as savagely as we desire, or we can come to some civilized compromise. Maybe they are not "combatants" as we traditionally define the term, but clearly they are not simply criminals. We have to be flexible. It is ideological nonsense to try to attack Bush by pointing out that the enemy doesn't exacly match our traditional classifications for soldiers. That much should have been obvious from the start. The real question is whether the administration critics will be constructive by suggesting that we need more flexibility to deal with the challenge posed by a new enemy, or whether they will attempt to be as inflexible and ignorant as the administration in their attempt to assert another set of rules and classifications that also make no sense in the current conflict.

I propose to begin with two simple rules. If it looks like an army, and it fights like an army, and it dies like an army, then it's an army. And when a member of that army looks like a soldier, and carries a weapon like a soldier, and fights as a soldier, and dies like a soldier, then he is a soldier. This is not a definiton from the Geneva Convention, but as with the old saying about "atheists", there are no lawyers in a foxhole.

[Daniel J. Graeber]

Howard,

Perhaps "criminal" works rather than soldier? At least that's what the UN uses. If al Qa'ida operatives are soldiers, than that acknowledges the caliphate they wish to establish is a legitimate soverign entity that conducts trade with other nations, has a functioning economy that works within internationally recognized borders, has a functioning governmental organization that is also internationally recognized and the sovereign representative of the people within said geopolitical entity. A state may be defined as an autonomous structural unit that is characterized by an identifiable group existing in geographically prescribed area. The convential use of the word "soidier" typically refers to one who is conscripted by the state as it I just defined it. Certainly, we can recognize terms such as 'soldiers of fortune' and so on, but to imply that soldiers of fortune are the same as the armed forces of Spain, Britain, France or the United States is simply wrong.

If that shoe fits and you are equating al Qa'ida operatives as soldiers defending some internationally recognized 'state', I'm sure some members of the Bush administration would like a word with you.

[Howard Gilbert]

By that definition, George Washington was a criminal. Not just that the British may have regarded him as a criminal, which is frequently true of any enemy. He was a real certified criminal defined in international law. So was Mao, Tito, Charles deGaul, ... At that point "criminal" becomes meaningless. More to the point, the Knights Templar and a few other international Western military organizations created to fight specific enemies (the Crusades) were not soldiers but rather criminals (supported by the Church and most Western governments, but not tied to a specific state).

Periodically there is a suggestion that the UN should have its own permanent military force that it can use immediately in a crisis. Be careful, because by this definition the members of such a force and their UN commanders would be criminals, because the UN itself is not a state.

It is true that the Western concept of soldier implies a whole bunch of Western tradition that simply does not transfer to Islamic tradition. When you "take the King's shilling" as they would say around 1800, you make a vocational decision. You contract to serve for a period of time in a particular job in exchange for pay. You become separate from those with other types of jobs, symbolized by the uniform you wear. If you break the contract, you are regarded as a deserter.

Al Qaeda regards armed struggle as a religious obligation between each individual and God. Since there is no change of status, the Islamic soldier doesn't put on a uniform. Since he can decide to fight, he can also leave when he chooses. He has no contract, but only a duty to God.

While they may dream of a larger Caliphate, they can get started wherever they are. So before 9/11 they controlled most of Afghanistan and today their supporters control most of Waziristan. At the end of the Long March, Mao had 8000 troops and controlled some caves in Yan'an. Today, the PLA has millions of men and represents one of the largest countries on earth. History judges an army and its soldiers by what they end up controlling, not what they start out with.

[Daniel J. Graeber]

I'll take your points in turn;

The British probably did consider Washington a criminal, yes. But to invoke Washington and The Crusades as your supporting evidence ignores modern international law.

The UN is composed of a compendium of member states. The UN acts as a representative of the international community and any standing UN force would be composed of a collection of active soliders from the armed forces of UN member states. The UN is more of an umbrella of collective will in that sense. Yes, they wear a blue helmet, but they retain their status from their country of origin, be it Canadian, French, or otherwise.

Al Qa'eda; your last point specifically; "History judges an army and its soldiers by what they end up controlling, not what they start out with." I would argue by that standard alone al Qa'ida is not defending anything. They are an offensive organization, not defensive I would argue. Nor do they 'control' anything. The Taliban were hosting members of al Qa'ida; al Qa'ida did not specifcally act on behalf of the government of Afghanistan. Same with Sudan, Yemen, etc etc etc. al Qa'ida would be more related to the mafioso than it would a standinig army of soldiers representing a nation, i.e. criminals

Let me go back to a key point in the original posting. A combatant enjoys combatant immunity from criminal prosecution. If you do not grant al Qaeda combatant immunity, the logically you have to deal with them through the criminal justice system and not hold them as prisoners of war.

The rest of the comments are a dispute about which of the two alternatives hold. I argue that they should be entitled to combatant immunity unless captured under circumstances that would stip such immunity from any soldier of any previous enemy (such as WWII Germans). Others argue that they are criminals and should be charged as such.

This discussion obsures the important point that current US Policy does not conform with either side. The US would like to deny the enemy combatant immunity, but also deny them a criminal trial. Despite the lively discussion here, nobody agrees with that position.

There are some upcoming cases that will test these propositions. The al Marri case of an al Qaeda operative captured in the US who has been subject to a "combatant detention" hearing in US District Court, but is asking for something like a criminal proceeding. The Omar Khadr MCA trial takes the opposite position: Khadr is being charged criminally for activity that would have been combat if he was given combatant immunity.