Unlawful Combatant Historical Basis In International Law And

The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. It was introduced into US domestic law in 1942 by a United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):

Other countries, including the United Kingdom, Israel, Australia, Canada, and New Zealand make theoretical distinctions between lawful and unlawful combatants and the legal status thereof.

1 Historical basis in international law and practice

1.1 Prisoners of war

The Geneva Convention relative to the Treatment of Prisoners of War, 12 August ( 19491949 is the common year starting on Saturday. see link for calendar) Events January-February January 4 RMS Caronia of the Cunard Line departs Southampton for New York on her maiden voyage January 4 February 22 Series of winter storms in Nebraska, Wyoming,) ( GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a Prisoner of war. A lawful combatant is a person who commits belligerent acts but if captured, would be a considered POW. An unlawful combatantUnlawful combatant (also illegal combatant or unprivileged combatant describes a person who engages in combat without meeting the requirements for a lawful belligerent according to the laws of war as specified in the Third Geneva Convention. Countries tha is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5.

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

B. The following shall likewise be treated as prisoners of war under the present Convention:

These terms thus divide people in a war zone into two classes. Those in armies and militias and the like (lawful combatants), and then those who are not. Those in armies and militias and the like have the right to be treated as prisoners of war upon capture and those not in armies and militias do not have the right to be treated as prisoners of war upon capture.

The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for acts prosecuting that combat, unless they commit war crimes or crimes against humanity. And if captured, they have to be treated as prisoners of war - basically they can be detained (more humane than killing them), but must be provided for, treated with respect, and so on.

If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal". If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention.

1.2 Persons who are not prisoners of war in an international conflict

A non-combatant civilian "in the hands" of an enemy or an Occupying Power often gains rights through Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August ( 1949) ( GCIV) if they qualify as a "protected person".

Article 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

If they fulfil the criteria they are a 'protected person' and are entitled to all the protections mentioned in GCIV. It should be emphasised that a national of neutral state, with normal diplomatic representation, in a war zone is not a protected person under GCIV.

But what of a combatant who does not qualify for POW status? If they qualify as a 'protected person' they get all the rights which a non-combatant civilian gets under GCIV but the Party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are Article 5 and Article 42.

Part I. General Provisions

...

Art. 5 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.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, 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 present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

...

Section II. Aliens in the territory of a party to the conflict

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Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

It is likely that if they have been found to be "unlawful combatant" by "a competent tribunal" under GCIII Article 5 and they are a protected person under GCIV, that the Party to the conflict will invoke GCIV Article 5. In which case the "unlawful combatant" does not have the "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". They do however retain the right "to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention."

If after "fair and regular trial" they are found guilty of a crime then the "unlawful combatant" can be punished by whatever lawful methods are available to the Party to the conflict.

If the Party does not use Article 5 the Party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".

1.3 Persons who are not prisoners of war in an internal conflict

Civilians are covered by GCIV Article 3:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

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(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.

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An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

...

But what of a combatant who does not qualify for POW status? Then they can expect to be treated humanely and before they are punished they can expect to get a trial in "a regularly constituted court".

The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Mercenary trial in Angola in June, 1976.

2 Criticism

The purported legal status of "unlawful combatants" in those nations currently holding detainees under that name, has been the subject of criticism by other nations and international human rights institutions; including Human Rights Watch and the International Committee of the Red Cross. The ICRC in response to the US-led military campaign in Afghanistan published a paper on the subject The legal situation of unlawful/unprivileged combatants (IRRC March 2003 Vol.85 No 849) and state in it:

Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and defined in the treaties of international humanitarian law, the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.

In the US the term unlawful combatant, critics maintain, has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted.

Some governments whose nationals have been detained with this status, notably Canada, the UK, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.

Many governments and human rights organizations worry that the introduction of the unlawful combatant status sets a dangerous precedent for other regimes to follow. When the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints of the United States, responding that he had been detained as an unlawful combatant.

3 See also

4 References

Supreme Court Decisions of June 28, 2004: Hamdi v. Rumsfeld, Rumsfeld v. Padilla, Rasul v. Bush
President George W. Bush's Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism; 66 FR 57833
US Congress' joint resolution of September 18, 2001 Authorization for Use of Military Force ("AUMF"); public law 107-40, 115 Stat. 224
Ex parte Quirin, U.S. Supreme Court Decision ( 1942)

5 Articles

Michael Greenberger: "Is Criminal Justice a Casualty of the Bush Administration's 'War on Terror'?" in American Bar Association's Human Right Magazine, Winter 2004
Daniel Kanstroom: "'Unlawful Combatants' in the United States - Drawing the Fine Line Between Law and War" in American Bar Association's Human Right Magazine, Winter 2003
Knut Dörmann: "The legal situation of unlawful/unprivileged combatants". Article in the International Review of the ICRC, March 2003
People for the American Way's critical report "Undermining the Bill of Rights" with extensive legal references
Eurolegal Services' highly critical article on the Bush administration's detention practices at Guantanamo Bay.

Laws of war U.S. detainees

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