Distinguishing eligibility for military detention from eligibility for the combatant's privilege: A commentary on the Clark-Raustiala op-ed

[Update: Ken Anderson has weighed in on this issue in great and persuasive detail - be sure to check it out.]

Wesley Clark and Kal Raustiala have an op-ed in today's New York Times in which they criticize the Bush Administration's policy of treating al Qaeda members as combatants rather than mere criminals.  Among other things, Clark and Raustiala contend that

Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon.

It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant's privilege.  Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.

Or so it seems to me.  If anyone takes a contrary view, I'd be interested in seeing the counterargument.  (One might argue, for example, that eligibility for detention cannot be separated from eligibility for the combatant's privilege.  I don't agree with that view, but perhaps someone wants to advance it in more detail).  Please note that I'm not trying to solicit comments for or against the general wisdom of adopting military or criminal models of response to terrorism; I'm just interested in the IHL question implicated by the quoted passage.

Comments

[HowardGilbert]

It is clear that the military can detain people other than combatants. Generally, in war the military can detain enemy nationals within the context of the Fourth Geneva Convention. Certainly the military can detain spies, saboteurs, and civilians who engage in combat without privilege. Generally the criteria for combatant privilege corresponds to the criteria for POW status in Article 4 of the third Geneva Convention (when considered separately from the other articles).

On 9/11 the al Qaeda main force in Afghanistan was estimated at 18,000 foot soldiers. This is about the strengh of a Marine division (but without any heavy equipment). Compared to the active duty armies of the world, this would rank around 100 (64 countries have smaller armies, and this does not account for the Taliban). However, US rhetoric concentrates on a handful of special operators under the command of Khalid Sheikh Muhammed (the 19 hijackers, Moussaui, Padilla, and al Marri). Even if you could label the KSM unit as "terrorists", that label cannot plausibly be applied to the division of light infantry.

If the hijackers had stolen 4 Fedex cargo planes and rammed them into the Pentagon and World Trade Center, the attack would have been lawful if conducted by privileged combatants. By hijacking airliners, however, they became pirates and their attack was clearly unlawful.

Suppose, however, a unit of al Qaeda commandos came ashore on the East Coast in rubber rafts at night from an offshore freighter. Suppose they were wearing uniforms, carrying arms openly, and they attacked a clearly legitimate military target. When captured they gave name, rank, and serial number and demanded rights under GC III. By what legal theory do we deny them privilege.

Clearly a non-state enemy is not entitled to privilege or POW status under GC III. That does not, however, mean that they are unprivileged under common international law. For example, neither Korea was a party to Geneva at the start of the war. More importantly, the US did not legally regard either the North Korean or Communist Chinese governments. We recognized the South Korean govenment as the only legitimate government of the entire peninsula, and China was of course ruled by the goverment on Taiwan. So both the North Korean army and the Chinese Volunteers in the Korean conflict were legally "non-state" parties from our point of view, and Geneva clearly did not apply. Nevertheless, we treated the enemy as privileged combatants and POWs because, as a uniformed army, they carried arms openly and conformed to the common law requirements for combatant privilege. It is difficult to come up with a legal distinction between North Korea and the Taliban, or between the Chinese Volunteers and the al Qaeda main force.

If al Qaeda behaved similarly to the Chinese, there is certainly a strong argument that they should be given the same treatment. Thus Clark is right that a decision to hold al Qaeda members as "enemy combatants" implies that if they meet all the other criteria in Article 4 that they would be entitled to privileged status. Then the hypothetical commando raid would be lawful and all captured enemy soldiers would be real POWs, even though as a force not associated with a recognized state this recognition would not be required by GC III. Alternately, if you insist that al Qaeda forces can never, ever, ever qualify as privileged combatants or POWs, then it becomes impossible to define them as "enemy combatants" and they must be treated as criminals.

[Michael Lewis]

Some of this is overlap from my comment on Terrorism as War Crime. I agree with Bobby that al Qaeda currently lack combatant privilege, even when attacking the Cole. However, as my other post indicates, there is nothing preventing the organization from acquiring the privilege for all of its members. If al Qaeda (or a theater-wide component therof) forswears targeting civilians, taking hostages and executing prisoners and backs that up with a general change in behavior and an internal disciplinary system designed to make the change effective that organization (say al Qaeda in Iraq) would then be entitled to combatant status.

I would go one step further than Howard on the 9/11 attacks. If al Qaeda operated as a privileged organization, hijacking airliners and flying them into military installations would arguably be permissible with the civilian casualties on the airliners being deemed collateral damage. This would have to go through a proportionality analysis and al Qaeda would have to show some attempt to minimize the number of civilian passengers involved, just as the USAF has to show that it takes steps to minimize, but not eliminate, civilian casualties collateral to aerial bombardment of a military target. But the mere act of hijacking (while creating criminal liability for those involved) should not exclude al Qaeda members from combatant status, just as the actions of the British Commandos during WWII did not forfeit combatant status for the entire British military.

[Howard Gilbert]

If there were no treaties concerning airline hijacking then the validity of this strategy would again be based on proportionality. However, airline hijacking turns out to be the one thing actually covered by international law. It is never permitted no matter what the purpose may be. The hijackers and their chain of command became pirates when the hijacking started, and after that their status doesn't change whether they crash the plane into the Pentagon or sell it on eBay.