does being at war make them all warriors?

8/2/2019 Does Being At War Make Them All Warriors?

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Does Being At War Make Them All Warriors?

Categorization of Persons Involved in an Armed Conflict and Whether a Different

Categorization Would Yield a Different Result in the Conflicts in Iraq and Afghanistan

Jan Fleckenstein*

On Saturday, February 13, 2010, American, British and Afghan forces swept down on the

town of Marjah, Helmand Province, Afghanistan, in an offensive designed to wrest the town

from Taliban control.1

Unlike most previous offensives into Taliban-held territory in

Afghanistan, this military action was announced to the regions inhabitants weeks in advance2

on

the theory that the Taliban would abandon the town before the North Atlantic Treaty

Organization (NATO)

3

forces arrived and that local elders would convince young Afghans not to

resist.4 The U.S. and Afghan governments also announced that once secured, the troops would

not leave Marjah to be retaken by the Taliban; this time, Coalition forces were in Helmand for

the long haul to support the Afghan governments establishment of control over the province.5

But once on the ground in Marjah, NATO forces encountered stiff resistance in an initial battle

* Jan Fleckenstein, J.D., M.L.S., M.S./I.R.M, Syracuse University. Associate Director, H.

Douglas Barclay Law Library, Syracuse University College of Law. A version of this paper wasoriginally submitted in satisfaction of a requirement for Law 840, Laws of Armed Conflict,Professor David M. Crane, Syracuse University College of Law, April 2010.

1Michael M. Phillips & Matthew Rosenberg, U.S. Starts Afghan Surge, Wall St. J., Feb. 13,

2010, http://online.wsj.com/article/SB10001424052748703382904575059921198076854.html

(see also http://online.wsj.com/article/SB10001424052748703382904575059921198076854.html#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26articleTabs%3Dinteractive).

2Id.

3NATO joined the military action in Afghanistan that was initially named Operation Enduring

Freedom, a U.S.-led defensive action under Article 51 of the United Nations Charter, latersanctioned by U.N. Security Council Resolutions 1379 and 1401. LESLIE C. GREEN, THE

CONTEMPORARY LAW OF ARMED CONFLICT, 3RD ED. 19 (2008).

4Phillips & Rosenberg,supra note 1.

5Id.


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2

that lasted for fourteen days.6

In the weeks after the battle of Marjah, Afghans and U.S. forces alike complained that the

Taliban were still present in the area, killing, beating and intimidating local residents, and even

coming to collect compensation from the Marines for property damages in the February

offensive. You shake hands with them, but you dont know they are Taliban, Colonel Sakhi

said. They have the same clothes, and the same style. And they are using the money against the

Marines. They are buying I.E.D.s7

and buying ammunition, everything.8

The frustration of troops fighting in Afghanistan, who were driving Taliban fighters out

of various regions of the country only to have them re-infiltrate villages and towns as soon as

U.S., NATO and International Security Assistance Force (ISAF) forces moved on, was echoed

by a segment of American public opinion9

and a broader swath of criticism from around the

world as to how the U.S. was conducting its wars in Afghanistan and Iraq.10

Support for the

2010 surge of troops into Afghanistan was tempered by frustration that, after eight years, the

Afghan government led by President Harmid Karzi controlled only 20% of the sovereign

6Interactive Map: Regional Violence Follow Events in Afghanistan and Pakistan, Day by Day,

WALL ST. J. ONLINE, Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904575059921198076854.html#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26

articleTabs%3Dinteractive.

7Improvised Explosive Devices.

8Richard A. Oppel , Jr., Violence Helps Taliban Undo Afghan Gains, N.Y. TIMES, Apr. 3, 2010,

http://www.nytimes.com/2010/04/04/world/asia/04marja.html.

9Jackie Northam,Afghan Deaths Threaten Support For U.S. Offensive, NATIL PUB. RADIO,

Apr. 23, 2010, http://www.npr.org/templates/story/story.php?storyId=126195738.

10 Jennifer Agiesta & Jon Cohen,Public Opinion in U.S. Turns Against Afghan War, WASH.

POST, Aug. 20, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/19/AR2009081903066.html.


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territory of Afghanistan.11

Meanwhile, Iraq continued to be plagued by sectarian violence and a

growing insurgency, which threatened the scheduled removal of American fighting forces in

2010 and the withdrawal of all U.S. military forces by the end of 2011.12

CAUSES OF FRUSTRATION FORTROOPS IN AFGHANISTAN AND IRAQ

The inability of the U.S. and its allies to decisively defeat al Qaeda and the Taliban in

Afghanistan, or to end the sectarian insurgency in Iraq, has raised questions about the sufficiency

of international law to govern armed conflicts between a national military and extremist

militants, and to control the conduct of militant forces with regard to civilian populations.

While armed conflicts between national armies and rebel groups are not new, the laws of

armed conflict grew out of the experience of the horrors of war between nations with regularly-

constituted national armies, not civil wars, insurgencies or terrorist plots.13 Additionally, the

assertions of the U.S. government under President George W. Bush that the U.S. was engaged in

a global war on terror, and that the Geneva Conventions did not apply to the conflicts in Iraq

and Afghanistan, have raised questions about the role and sufficiency of the laws of war to

control the actions of state parties when national armies are arrayed against terrorist groups or

11Eight years after 9/11 Taliban now has a permanent presence in 80% of Afghanistan, ICOS,

Sept. 10, 2009, http://www.icosgroup.net/modules/press_releases/eight_years_after_911(According to the International Council on Security and Development, Taliban forces have

moved back into regions once secured by the U.S.).

12Iraq, N.Y. TIMES ONLINE, http://topics.nytimes.com/top/news/international/countriesand

territories/iraq/index.html?scp=2&sq=american%20public%20opinion%20iraq&st=cse (last

updated Feb. 24, 2012).

13See generally Denise Plattner,Assistance to the Civilian Population: the Development and

Present State of International Humanitarian Law, INTL COMMITTEE RED CROSS, June 30, 1992,http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jmar?opendocument.


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rogue states.14

The wars in Afghanistan and Iraq have pitted the best military in the world against

multiple groups of extremist militants, who make up for their lack of numbers and lack of

technologically advanced weaponry with their ability to infiltrate civilian populations, their

willingness to sacrifice civilian lives, and their use of terror tactics to force civilian cooperation.

The presence and role of civilians is the most complicated aspect of the fighting in Iraq and

Afghanistan because the insurgents blend with the civilian population: Civilians become

unintentional casualties in attacks by U.S. forces, and a high number of civilian casualties are

intentionally or collaterally inflicted by the insurgents. These casualties are often blamed on the

U.S. and its allies simply due to the U.S. military presence in the country.15 The difficulty in

accomplishing military and political goals in this asymmetric16

conflict caused political

support for military operations in Iraq and Afghanistan to waver, increasing the likelihood that

the U.S. would declare victory and go home, leaving the Iraqi and Afghan governments to

contend with ongoing violence completely on their own.17

The Obama Administration reaffirmed the commitment of the U.S. to international law,

14 GREEN,supra note 3, at 53.

15SeeNortham,supra note 9.

16

Jakob Kellenberger, President of the ICRC, statement to the conference on the challenges forIHL posed by new threats, new actors and new means and methods of war (Nov. 9-10, 2009)(transcript available athttp://www.icrc.org/eng/resources/documents/statement/geneva-

convention-statement-091109.htm).

17Mark Landler,NATO Backs Plan to Give Command to Afghans, N.Y. TIMES, Apr. 23, 2010,

http://www.nytimes.com/2010/04/24/world/asia/24diplo.html?scp=

1&sq=NATO%20Backs%20Plan%20to%20Give%20Command%20to%20Afghans&st=cse.


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including international humanitarian law.18

The U.S. no longer claims that the armed conflicts in

Iraq and Afghanistan are not subject to The Hague Regulations, the Geneva Conventions, and

customary international law.19

Nonetheless, compliance with the tenets of international

humanitarian law has been a challenge for the Obama Administration. Distinguishing civilians

from belligerents, disposition of detainees captured by the U.S. (including those turned over to

the governments of Iraq and Afghanistan), and the use of advanced technology like unmanned

drones to carry out attacks in the hope of killing more belligerents and fewer civilians raise

issues of international humanitarian law that are just as important to understanding the Obama

Administrations challenges in Iraq and Afghanistan as the application of Common Article 3 to

persons detained during the Bush Administration was to that administration.

THE LEGAL BASIS FOR THE INVASIONS OF AFGHANISTAN AND IRAQ

The U.S. launched an attack on the Taliban government that controlled Afghanistan in

2001 in pursuit of al Qaeda, an international terrorist network led by Osama bin Laden20 that

hijacked four airplanes and crashed them into the World Trade Center, the Pentagon, and a field

in rural Pennsylvania on September 11, 2001, after the Taliban refused to hand over Osama bin

Laden,21 who was believed to be hiding out in an al Qaeda stronghold in the mountainous Tora

18 President Barak Obama, Remarks by the President at the Acceptance of the Nobel Peace Prize

at Oslo, Norway (Dec. 10, 2009) available athttp://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-prize.

19Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

20Jayshree Bajoria & Greg Bruno, al-Qaeda, COUNCIL FOREIGN REL., Aug. 29, 2011,

http://www.cfr.org/publication/9126/.

21See John F. Murphy,Afghanistan, Hard Choices and the Future of International Law, 85

INTL L. STUD. 79, 84 (Michael N. Schmitt, ed., Naval War College 2009).


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Bora region of Afghanistan.22

The U.S. invaded Afghanistan pursuant to its right of self-defense

under Article 51 of the U.N Charter23

and pursuant to a Congressional Joint Resolution.24

The

U.S. did not operate under a U.N. Security Resolution authorizing the use of force, although the

U.N. later sanctioned American military action (or at least the resulting regime change in

Afghanistan) in Security Council Resolutions 1379 and 1401.25

The U.S. invaded Iraq in 2003. The U.S. sought, but did not get, U.N. support for

military action against Iraq on the grounds that Saddam Hussein had the capability to

manufacture weapons of mass destruction (WMDs) in violation of prior U.N. Security Council

Resolutions and U.N. sanctions and that Saddam Hussein was harboring terrorists.

26

U.S. troops

invaded Iraq pursuant to a Joint Resolution of Congress27

and defeated the Iraqi Army. Despite

the Bush Administrations contention that, three weeks later, the Iraq war was a mission

accomplished, the country soon sank into civil war and a recurrent insurgency marked by

continued fighting and civilian casualties.28

The U.S. executed a Status of Forces Agreement

22 John Bowman, Tora Bora, CBC NEWS ONLINE, Dec. 2001,http://web.archive.org/web/20041010142231/http://www.cbc.ca/news/indepth/targetterrorism/backgrounders/torabora.html

23U.N. Charter art. 51, available athttp://www.un.org/en/documents/charter/chapter7.shtml.

24S. J. Res. 23, 107th Cong. (2001).

25 GREEN,supra note 3, at 19.

26Colin Powell, Secretary of State, United States of America, Presentation to the U.N. Security

Council on the U.S. case against Iraq (Feb. 6, 2003), available athttp://www.cnn.com/2003/US/02/05/sprj.irq.powell.transcript/.

27H. J. Res. 114, 107th Cong. (2002).

28 HANNAH FISCHER, CONG. RESEARCH SERV., RL 40824, IRAQ CASUALTIES: U.S.

MILITARY FORCES AND IRAQI CIVILIANS, POLICE, AND SECURITY FORCES(2010)available athttp://www.fas.org/sgp/crs/mideast/R40824.pdf.


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with Iraq in 2008 that called for all U.S. forces to withdraw no later than December 31, 2011.29

SOURCES AND SCOPE OF THE LAWS OF ARMED CONFLICT

International humanitarian law is comprised of international human rights law, codified

in the Universal Declaration of Human Rights30

and other human rights treaties, and the laws of

armed conflict, also referred to as the laws of war.31

The laws of armed conflict govern the

conduct of hostilities between warring parties. It is codified in the Hague Conventions (1899 and

1907), the Geneva Conventions (1949), Additional Protocols I and II (1977), Additional Protocol

III (2005) and other international treaties. For example, the Hague Conventions32 govern the

methods and means of warfare and the protection of cultural property. Although limited on their

face to the states that are parties to the treaty, the Hague Regulations (1907) have since been

recognized, to the extent that they have not been superseded by later instruments, as customary

international law that is therefore binding on all parties to an armed conflict.33

Customary law is

29Agreement Between the United States of America and the Republic of Iraq On the Withdrawal

of United States Forces from Iraq and the Organization of Their Activities during TheirTemporary Presence in Iraq, Art. 24.1, Nov. 17, 2008, available athttp://graphics8.nytimes.com/

packages/pdf/world/20081119_SOFA_FINAL_AGREED_TEXT.pdf.

30Universal Declaration of Human Rights, G. A. Res. 217 (III) A, U.N. Doc A/RES/217(III)

(Dec. 10, 1948), available athttp://www.un.org/en/documents/udhr/.

31 For a list of international humanitarian law treaties and the countries that have ratified orsigned them, see the Treaty Database maintained by the International Committee of the Red

Cross, http://www.icrc.org/ihl.

32

See generally Hague Convention (IV): Regulations Respecting the Laws and Customs of Waron Land, Oct. 18, 1907; Hague Convention for the Protection of Cultural Property in the Eventof Armed Conflict, May 14, 1954; Geneva Convention on Prohibitions or Restrictions on the Use

of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to haveIndiscriminate Effects, Oct. 10, 1980.

33Terry Gill & Elies van Sliedregt, Guantnamo Bay: A Reflection On The Legal Status And

Rights Of Unlawful Enemy Combatants, 1 UTRECHT L. REV. 28, 34, note 25 (2005).


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the common law of war. Customary law includes the rules of warfare that predate

international conventions or that have developed as international conventions are interpreted by

State Parties (the countries that have ratified the conventions) and by international and domestic

courts.

Common Article 3 to the Geneva Conventions (1949) governs the treatment of all

persons in time of international or non-international armed conflict.34

Common Article 3

prohibits:

(a) violence to life and person, in particular murder of all kinds, mutilation, crueltreatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading

treatment;

(d) the passing of sentences and the carrying out of executions without previousjudgment pronounced by a regularly constituted court, affording all the judicial

guarantees, which are recognized as indispensable by civilized peoples.35

The laws of armed conflict govern only the conduct of military forces engaged in armed

conflict. They do not address the circumstances that result in a declaration of war or whether the

military action is justified. For example, the laws of armed conflict do not answer the question

as to whether the U.S. was entitled under international law to invade Afghanistan when the

Taliban government of Afghanistan refused to turn Osama bin Laden over to the U.S., or

whether the U.S. was entitled to invade Iraq in order to overthrow Saddam Husseins

34THE GENEVA CONVENTIONS OF 12 AUGUST 1949 : COMMENTARY I (1952) at 38, alsoavailableathttp://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument.

35 Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6U.S.T. 3316, 75 U.N.T.S 135 [hereinafter Geneva Convention III]. The four Geneva

Conventions and Two Additional Protocols are available athttp://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions#a2.


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government. It does not answer the question of whether regime change (in either Afghanistan or

Iraq) is a legal basis for military invasion. The laws of armed conflict set the rules for how an

armed conflict is conducted by military forces once hostilities have commenced. It does not

govern the actions of a countrys international intelligence agency or of a countrys international

law enforcement agency, which are subject to the domestic law of the country and other

international agreements that specifically address intelligence and law enforcement.36

APPLICATION OF THE LAWS OF ARMED CONFLICT TO AFGHANISTAN AND IRAQ

The laws of armed conflict govern the conduct of warring parties in two kinds of armed

conflicts: International armed conflict, defined as an armed conflict between two or more parties

who are states, or who are states and rebel groups, and non-international armed conflict, defined

as an armed conflict between either states and armed groups, or just armed groups.37

The U.S. and Afghanistan are both parties to the Geneva Conventions.38

The U.S. has

36International humanitarian law and terrorism: questions and answers, INTL COMM. OF THE

RED CROSS: RES. CTR. (Jan. 1, 2011), http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.html.

37Id.

38 The U.S. ratified Hague Convention (IV) 1907 in 1909, and the Geneva Conventions in 1955.

Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907,[hereinafterHague Convention (1907)], State Parties, available at

http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=195&ps=P. Geneva Convention, availableathttp://www.icrc.org/ihl.nsf/WebSign?ReadForm &id=375&ps=P. Afghanistan ratified the

Geneva Conventions in 1956. Geneva Conventions, State Parties, available at

http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P. Whether treaty obligationscarry over from a de jure government to a de facto government such as the de facto Talibangovernment in Afghanistan is assumed for the purposes of this analysis. Since the ICRC lists

parties to international conventions by country name, not by government, it must be that anational government in power, even if it overthrows a previous government by force, remains

bound by the treaty obligations of its predecessor governments unless the successor governmentexpressly repudiates the treaty, and even then the successor government would be bound by

customary international law.


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not ratified Additional Protocols I, II, or III, but it complies with the provisions of those three

protocols to the extent that they represent the codification of customary international law.39

Under the Third Geneva Convention, the military forces of a state party to the armed

conflict are lawful combatants.40

A non-state party to an armed conflict may be recognized as a

lawful combatant party to the armed conflict if it is a militia or other volunteer corps, including

organized resistance movements, belonging to a [state] party to the conflict if they fulfill the

conditions of being in a chain of military command, having a fixed distinctive sign recognizable

at distance, carrying arms openly, and conducting their operations in accordance with the

laws and customs of war [emphasis added].

41

Additional Protocol I removes the requirement

that a non-state party to an armed conflict have a fixed distinctive sign recognizable at a

distance.42

The U.S. has not ratified Additional Protocol I, in part due to the belief that removal

of the requirement for a fixed distinctive signal would include terrorist groups in the category of

lawful combatants.43 Afghanistan did not become a signatory to Additional Protocol I until

October 2009.44

At the time of the invasion of Afghanistan, the Taliban controlled the Afghan national

39THE LAW OF LAND WARFARE vi (DEPT. OF THE ARMY FIELD MANUAL, 27th ed.) (July 1956),

available athttp://www.afsc.army.mil/gc/files/fm27-10.pdf.

40Geneva Convention III,supra note 35, at art. 4(1).

41Id. at art. 4(2).

42See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the

Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S.3, [hereinafter Additional Protocol I], available athttp://www.icrc.org/ihl.nsf/FULL/470?OpenDocument.

43THOMAS M. MCDONNELL, THE UNITED STATES, INTERNATIONAL LAW, AND THE STRUGGLE

AGAINST TERRORISM 112 (2010).

44 Additional Protocol I,supra note 42.


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government. Although only a few countries recognized the Taliban as a legitimate (de jure)

government, as a de facto government the Taliban was in control of the Afghan state.45

Therefore, U.S. forces fighting the Taliban were engaged in an international armed conflict

because they were fighting the military forces of the existing government, a state party to the

Conventions. 46

At the time of the Afghanistan invasion, al Qaeda was allied with the Taliban government

of Afghanistan. Under additional Protocol I, members of al Qaeda would be lawful combatants

and U.S. military action against al Qaeda would be an international armed conflict because of the

militia or volunteer corps relationship between the Taliban and al Qaeda. However, the U.S.

maintains that while the armed conflict against the Taliban government of Afghanistan was an

international armed conflict, its fight against al Qaeda at that time constituted a separate armed

conflict from that waged against the Taliban government.47

The U.S. Supreme Court did not

reach the issue of whether the U.S. was involved in one or two armed conflicts (one

international, one non-international), when it ruled inHamdan v. Rumsfeldthat Common Article

3 applied, even if the relevant conflict is not one between signatories to the Geneva

Conventions.48

Nonetheless, the Court signaled it considered the conflict against al Qaeda,

before the Taliban was driven from power, to be a non-international armed conflict. Common

45MCDONNELL,supra note 43, at268.

46Green points out that there was no recognition on the part of the Bush Administration that it

was involved in an international armed conflict when it invaded Afghanistan in 2001; rather, the

military action was premised on pursuit of the war on terrorism. GREEN,supra note 3, at 344.The U.S. acknowledged in 2002 that its war against the Taliban government of Afghanistan wasan international armed conflict. Hamdan v. Rumsfeld, 548 U.S. 557, 629, n. 60 (2006).

47Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), revd on other grounds, Hamdan v.

Rumsfeld, 548 U.S. 557 (2006).

48Hamdan, 548 U.S. at 629.


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Article 3 . . . provides that in a conflict not of an international character occurring in the territory

of one of the High Contracting Parties, each Party to the conflict shall be bound to apply . . .

certain provisions protecting persons.49

When Harmid Karzai was selected as Chairman of the Transitional Administration50

of

the government of Afghanistan, the status of U.S. military forces in Afghanistan changed from

an invader to an armed force in Afghanistan at the invitation of the Afghan government. With

the change in the government in Afghanistan, the status of the Taliban changed to that of a non-

state actor. Under the Third Geneva Convention, the Taliban became an armed group and the

armed conflict in Afghanistan became solely a non-international armed conflict.

The U.S. and Iraq are both state parties to the Geneva Conventions.51 Armed conflict

between state parties to the Geneva Conventions are denoted international armed conflicts,

which bind both warring parties to compliance with the terms of the Conventions.52

When

Saddam Husseins army was defeated, the U.S. stayed on as an occupying force supporting a

49Id.

50Amy Waldman,A Nation Challenged: Interim Authority; A Government Meets With No

Budget, and Very Little Else, N.Y. TIMES, Dec. 23, 2001,http://www.nytimes.com/2001/12/23/world/nation-challenged-interim-authority-government-

meets-with-no-budget-very-little.html?scp=5&sq=Hamid+Karzai+Chairman+of+the+Transitional+Administration&st=nyt.

51Iraq was part of the Ottoman Empire until the end of World War I. It was under a British

Mandate from 1918 until 1932. Iraq. ENCYCLOPDIA BRITANNICA ONLINE (2010), available athttp://www.britannica.com/EBchecked/topic/293631/Iraq?cameFromBol=true. Iraq ratified the

Geneva Conventions in 1956. Geneva Conventions, State Parties, available athttp://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P.

52 Geneva Convention III,supra note 35, at art. 2.


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Coalition Provisional Authority.53

The Third Geneva Convention still applies in cases of partial

or total occupation of the territory of a state party.54

As in Afghanistan, after the establishment

of a new Iraqi government, the fighting shifted to the combined U.S. military and Iraqi security

forces against non-state actors, armed groups, and the conflict became a non-international

armed conflict under the Third Geneva Convention.

CATEGORIZATION OF PERSONS INVOLVED IN AN ARMED CONFLICT

One of the challenges posed by the wars in Iraq and Afghanistan stemmed from the

attempt by the Bush Administration to place the war against al Qaeda, the Taliban, and

insurgents in Iraq outside the constraints of the Geneva Conventions and customary international

humanitarian law. The Bush Administrations claim that persons detained by the U.S. and its

allies were not entitled to the protection of Common Article III formed the basis for its

contention that the wars in Iraq and Afghanistan were not armed conflicts to which the Geneva

Conventions applied.55 In effect, the U.S. claimed that the global war on terror was not a war

that invoked the protections of international humanitarian law. However, in holding that a

military commission convened to try Salim Ahmed Hamdan violated both the U.S. Uniform

Code of Military Justice and the Geneva Conventions, the U.S. Supreme Court analyzed the

conflict in Afghanistan as a non-international armed conflict,56

bringing U.S. law into line with

the position of the International Committee of the Red Cross that the conflict in Afghanistan is

53Roger Cohen, The World: Traps Ahead;Iraq and Its Patron, Growing Apart, N.Y. TIMES,

Dec. 21, 2003, at 4:1, http://www.nytimes.com/2003/12/21/weekinreview/the-world-traps-ahead-iraq-and-its-patron-growing-apart.html?pagewanted=all&src=pm.

54 Geneva Convention III,supra note 35, at art. 2(2).

55GREEN,supra note 3, at 53.

56 Hamdan v. Rumsfeld, 548 U.S. 557, 629 (2006).


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an armed conflict to which international humanitarian law applies.57

There are three categories of persons under the laws of armed conflict, and every person

fits into one of the three categories: Lawful combatants, noncombatants, and unlawful

combatants. Each of the three categories of persons has different legal rights.58

All categories of

persons involved in an armed conflict have the right to humane treatment under Common Article

3.59

If a captured persons status is undetermined, the person has a right to be treated as a

prisoner of war until legal status can be determined.60

Combatants, or lawful combatants, are lawfully entitled to engage in hostilities.61 Lawful

combatants must be in the military force of a national government, militia, or organized

resistance movement.62 Lawful combatants must be under organized command, wear a

distinctive emblem, carry arms openly, and conduct their operations in accordance with the

laws and customs of war.63

Lawful combatants cannot be prosecuted for lawful warlike acts

57Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law,INTL COMM. OF THE RED CROSS, NEWS RELEASE 01/47, Oct. 24, 2001,

http://www.icrc.org/eng/resources/documents/misc/57jrdn.htm.

58 DIETERFLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65 (1995).

59The Geneva Conventions of 1949 and Their Additional Protocols, INTL COMM. OF THE RED

CROSS, Oct. 29, 2010, http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm.

60Geneva Convention III,supra note 35, at art. 5(2).

61Hague Convention (IV): Regulations Respecting the Laws and Customs of War on Land, art.

1, Oct. 18, 1907.62

Id.

63Id. Additional Protocol I (1977) to the Geneva Conventions drops the requirement that lawfulcombatants wear a distinctive emblem. The U.S., which has not ratified Additional Protocol I,

has not acceded to this change, arguing that it is not in conformance with the customary laws ofwar.


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committed while engaged in hostilities (combat immunity).64

They can be prosecuted for grave

breaches of the laws of armed conflict (war crimes) either by their own country or by any

country or an international court.65

There is no statute of limitations on war crimes.66

Lawful

combatants have a right to prisoner of war status when captured.67

Noncombatants are persons who do not take part in hostilities, i.e. civilians.68 Included in

this category are medical personnel and chaplains accompanying the force, so long as they do not

take up arms themselves, and persons who are hors de combat(out of the combat) because they

have surrendered, are sick, or have been wounded, shipwrecked, or captured.69 Noncombatants

have the right not to be the objects of direct attack.

70

Noncombatants can lose their protected

status as civilians under the Fourth Geneva Convention if they engage in hostilities.71

Unlawful combatants are persons who engage in hostilities without being legally

64THE LAW OF LAND WARFARE, supra note39,at cl. 3(a).

65SeeHow "Grave Breaches" are Defined in the Geneva Conventions and Additional Protocols,

INTL COMM. OF THE RED CROSS: RES. CTR. (June 4, 2004),http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/5zmgf9?opendocument (for the complete list

of grave breaches). Grave breaches that are common to all four Geneva Conventions are: willfulkilling, torture or inhuman treatment, including biological experiments, willfully causing great

suffering or serious injury to body or health. See Id.

66FRANOISE BOUCHET-SAULNIER, THE PRACTICAL GUIDE TO HUMANITARIAN LAW 285 (2007).

67Geneva Convention III,supra note 35, at art. 5.

68Id. at art. 3.

69Id. at art. 4.

70Id.

71Id.


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privileged to do so.72

Unlawful combatants are also referred to as unprivileged combatants or

unprivileged belligerents.73

Unlawful combatants do not have combat immunity for acts they

commit while engaged in hostilities and therefore are not entitled to prisoner of war status upon

capture.74

They can be tried as criminals under the domestic law of the state that captures them

for acts they commit that would be lawful if they were lawful combatants.75

Terrorist is not a category of person under international humanitarian law.76

Terrorist and terrorism have not been defined in ratified international humanitarian law

treaties because it has proven difficult to craft definitions which are both sufficiently precise and

sufficiently encompassing of the acts that are denoted as terrorist acts.

77

However, measures or

acts of terrorism that are perpetrated in the context of an armed conflict are prohibited under Art.

33 of the Fourth Geneva Convention.78

In the laws of armed conflict, there is no legal

significance[to designating acts] as terrorist because [those] acts already constitute war

72Knut Drmann, The Legal Situation of Unlawful/Unprivileged Combatants, 85 INTL REV.

RED CROSS,45 (2003).

73The words unlawful combatant or unlawful/unprivileged belligerent do not actually

appear in the Geneva Conventions. Id. at 46.

74The Relevance of IHL in the Context of Terrorism, INTL COMM. OF THE RED CROSS: RES.

CTR., Jan. 1, 2011, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-ihl-210705?opendocument.

75Id.

76

Hans-Peter Gasser,Acts of Terror, Terrorism and International Humanitarian Law, 84INTL REV. RED CROSS 547, 552 (2002).

77Id. at 552-554.

78Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 33,

Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, available at

http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument.


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crimes.79

Terrorist acts are criminal under the domestic law under the country in which they take

place.80

In 1987, the U.S. defined terrorism as premeditated, politically motivated violence

perpetrated against noncombatant targets by sub-national groups or clandestine agents, and

terrorist group as any group practicing, or which has significant subgroups which practice,

international terrorism.81

Enemy combatant and unlawful enemy combatant are not categories of persons

under international humanitarian law.82 The term enemy combatant in international

humanitarian law means lawful or unlawful combatants of one country, with who another

country is at war.83 After 9/11, the Bush administration used the term enemy combatant to

describe members of al Qaeda and the Taliban, as well as to detain persons without charge on the

authority of the Presidents powers as Commander in Chief.84

In 2006, Congress defined

79International Humanitarian Law and Terrorism: Questions and Answers, INTL COMM. OF THE

RED CROSS: RES. CTR., Jan. 1, 2011,

http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm.

80International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, INTL

COMM. OF THE RED CROSS:REPORT 12, OCT. 2011,

http://www.icrc.org/eng/resources/documents/report/31-international-conference-ihl-challenges-report-2011-10-31.htm.

81 22 U.S.C. 2656 (f) (2006). Different Acts of Congress and different branches of the U.S.government use different definitions of terrorism. For links to statutory definitions in U.S.

federal and state law, see U.S. ANTI-TERRORISM LAWS,http://jurist.law.pitt.edu/terrorism/terrorism3.htm.

82THE LAW OF LAND WARFARE,supra note 39, at cl. 60.

83The Relevance of IHL in the Context of Terrorism, supra note 74.

84Terry Frieden, U.S. Reverses Policy, Drops 'Enemy Combatant' Term, CNN, Mar. 13, 2009,

http://articles.cnn.com/2009-03-13/politics/enemy.combatant_1_guantanamo-prisoners-

guantanamo-bay-al-qaeda-operatives?_s=PM:POLITICS.


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unlawful enemy combatant to mean:

[A] person who has engaged in hostilities or who has purposefully and materiallysupported 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 Qaeda,

or associated forces).

85

The definition was made retroactive to include, a person who, before, on, or after the date of the

enactment of [the Act] has been determined to be an unlawful enemy combatant by a . . . tribunal

established under the authority of the President.86

This definition was repealed in the Military

Commissions Act of 2009, which replaced the term unlawful enemy combatant with

unprivileged enemy belligerent, and defined it as:

[A]n 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.87

In contrast, a privileged belligerent was defined in the same legislation to mean, an individual

belonging to one of the eight categories enumerated in Article IV of the Geneva Convention

Relative to the Treatment of Prisoners of War.88

The terms terrorists, enemy combatants, unlawful enemy combatants, and unprivileged

enemy belligerents can all have meaning under the domestic law of a country. However, all

persons who fit into those categories are lawful combatants, unlawful combatants, or

85Military Commissions Act of 2006, Pub. L. No. 109-366, 948a(1)(A)(i), 120 Stat. 2601.

86Military Commissions Act 948a(1)(A)(ii).

8710 U.S.C. 948a(7) (2009).

88Id. at 948a(6).


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noncombatants under international humanitarian law.

A terrorist who commits a criminal act in peacetime is a common criminal.89

A terrorist

who is a lawful combatant in an armed conflict has combat immunity for lawful hostile acts

committed in the course of the armed conflict; but can be prosecuted as a war criminal for

unlawful acts committed in the course of the armed conflict, such as for intentionally targeting

civilians.90

A terrorist who is a lawful combatant in an armed conflict is entitled to prisoner of

war status upon capture; although, once captured, he may be arrested, charged, and tried for

crimes committed before the inception of the armed conflict.91

A terrorist who is an unlawful combatant has no combat immunity for hostile acts

committed in the course of an armed conflict.92 Hostile acts committed by unlawful combatants

are not war crimes.93

Instead, acts such as killing members of the U.S. armed forces and

civilians are criminal acts and can be prosecuted under the domestic laws of the country in which

the act was committed.94 A terrorist who is captured during the course of an armed conflict is

not entitled to prisoner of war status, although he is entitled to the protection of Common Article

3, which includes the right to humane treatment.95 Once captured he may be arrested, charged,

and tried for crimes committed before and during the armed conflict.96

89Gasser,supra note 76, at 552.

90Id. at 568.

91Id. at 556.

92Fleck,supra note 58, at 68.

93Drmann,supra note 72, at 70.

94Id. at 71.

95Geneva Convention III,supra note 35, Common Article 3, cl. 1.



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A terrorist who commits a criminal act before the onset of an armed conflict, but who

does not take up arms during the course of an armed conflict is a noncombatant for the purposes

of the laws of armed conflict.97

Such a person is a civilian in regard to the armed conflict.98

If

captured during the course of an armed conflict, he can be tried for criminal acts committed in

the country in which he was captured under the domestic law of that country, or extradited by

agreement between countries to be tried in the country in which the criminal act was

committed.99

Enemy combatant and unlawful enemy combatant were designations under U.S.

domestic law, which were meant to place such combatants outside the framework of

international humanitarian law.100 These individuals are neither lawful combatants entitled to

combat immunity, unlawful combatants not entitled to combat immunity, nor noncombatants

all of whom would be entitled to the protections of Common Article 3.

Unprivileged enemy belligerent is a current legal definition under U.S. law that is more

closely aligned with the designation unlawful combatant under international humanitarian law.

However, under U.S. law, a person may be designated an unprivileged enemy belligerent

based solely on the characteristic of having been a member of al Qaeda at the time of the

alleged offense under this chapter.101

But because combatant status is decided at the time a

97Id. at 72.

98Id.

99THE GENEVA CONVENTIONS OF 12 AUGUST 1949 : COMMENTARY IV (1952) at 39, also

available athttp://www.icrc.org/ihl.nsf/COM/380-600006?OpenDocument.

100MCDONNELL,supra note 43, at 38.

101 10 U.S.C. 948a(7)(C).


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person is captured under the Third Geneva Convention,102

a person may be an unprivileged

enemy belligerent under U.S. law but still be designated a noncombatant under the laws of

armed conflict if that person has not engaged in hostilities in the armed conflict.

INTERNATIONAL HUMANITARIAN LAW CHALLENGES OF THE BUSH ADMINISTRATION

The Bush administration caused two problems for itself with the invasion of Afghanistan

in 2001. First, by soliciting from Congress a Joint Resolution authorizing the use of the U.S.

Armed Forces against those responsible for the recent [9/11] attacks launched against the U.S.

inself-defense against those nations, organizations, or persons who carried out the attacks103

under the War Powers Resolution,104

it elevated the criminal acts committed by al Qaeda to acts

of war. This gave al Qaeda terrorists the status of combatantslawful or unlawfulin an armed

conflict governed by the laws of armed conflict. While the outcome of a trial on criminal

charges for murder for 9/11 or a trial on war crimes under the Geneva Conventions for

intentionally targeting civilians for 9/11 would no doubt be the same, the members of al Qaeda

who fought with the Taliban after the U.S. invaded Afghanistan in 2001 gained the status of

lawful combatants in the eyes of the international community.105

They gained this status because

the U.S. used military force against the nation of Afghanistan, of which the Taliban was the de

facto government, in response to an attack lodged by persons (al Qaeda) allied with the Taliban

government, thereby elevating the conflict to the status of an international armed conflict. If the

102

Geneva Convention III,supra note 35, at art. 5.103

Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, 115 Stat. 224 (emphasis

added).

104War Powers Resolution, 50 U.S.C. 1541-1548 (2006).

105 MCDONNELL,supra note 43, at 259.


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U.S. had pursued the persons who carried out the 9/11 attacks under the treaties and domestic

laws governing international law enforcement, the perpetrators would have no status except that

of fugitives from the domestic criminal law of the U.S..

Second, by attempting to deny persons captured since 2001 both the protections of the

Geneva Conventions and habeas corpus protection under the U.S. Constitution, the Bush

administration opened itself up to charges that it committed war crimes under Common Article 3

against detainees who were subject to torturous, humiliating, degrading treatment and who were

denied access to either a regularly constituted court, a trial by military commission, or court

martial.

INTERNATIONAL HUMANITARIAN LAW CHALLENGES FACED BY THE OBAMA ADMINISTRATION

The Obama administration has reaffirmed the commitment of the U.S. to international

law, including international humanitarian law.106

However, it still faces law of armed conflict

issues in Iraq and Afghanistan in light of the withdrawal from Iraq and the hoped-for withdrawal

from Afghanistan.

One ongoing, but immediate, issue in Afghanistan is the continued problem with civilian

casualties. The problem in the field is telling the civilians apart from the combatants. The U.S. is

now in Afghanistan at the invitation of the Afghan government, allied against the Taliban and al

Qaeda, two non-state parties.107

Under the laws of armed conflict, the conflict in Afghanistan is a non-international armed

106President Barack Obama, Remarks by the President at the Acceptance of the Nobel Peace

Prize in Oslo, Norway, (Dec. 10, 2009), available athttp://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-prize.

107Ray Rivera,Biden Assures Karzai of Aid From U.S. Beyond 2014, N.Y. TIMES, Jan. 11, 2011,

http://www.nytimes.com/2011/01/12/world/asia/12afghan.html.


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conflict. In a non-international armed conflict, the armed forces of a state party directly engaged

in hostilities are lawful combatants.108

The forces of a non-state party directly engaged in

hostilities are not granted lawful combatant status, they are unlawful combatants.109

These

unlawful combatants are not entitled to prisoner of war status if captured, nor are they immune

from prosecution under domestic law for taking up arms.110 Civilians who take no part in

hostilities are noncombatants.111

Civilians who directly participate in hostilities lose their

protected status as civiliansthey are unlawful combatants.112

Because al Qaeda and the Taliban are non-state parties to a non-international armed

conflict

113

, they cannot gain the status of lawful combatants solely through compliance with

requirements of the Third Geneva Convention, i.e., being under military discipline in a chain of

command, bearing a fixed distinctive emblem, carrying arms openly, and following the law of

war.114

The Taliban and al Qaeda can only gain status as lawful combatants by becoming the

militia, volunteer corps, or organized resistance movement of a state party to the conflict,115 for

108The Relevance of IHL in the Context of Terrorism, International Committee of the Red Cross,July 21, 2005, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-ihl-

210705?opendocument.

109Id.

110Id.

111 BOUCHET-SAULNIER,supra note 66, at 36.


113 Hague Convention (1907),supra note 38, at art. 1.


115Id.


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example, by becoming the acknowledged allies of a country like Afghanistan or Pakistan.116

While under the laws of armed conflict all parties to the conflict are bound, if not

specifically to the Geneva Conventions, then generally to the laws and customs of war, there is

no incentive for stateless militant groups like the Taliban or al Qaeda to comply with the laws of

armed conflict in an asymmetrical war with the U.S. military. Wearing distinctive emblems

makes them targets, and protecting civilians rather than exploiting them cuts off their chain of

supply and source of intelligence.

For U.S. troops, it means that only good intelligence and discrimination in targeting will

minimize civilian casualties, and that the NATO forces in Afghanistan will face accusations of

targeting or not protecting civilians for as long as military forces remain in the field.

Another challenge for the Obama administration is the disposition of persons captured

during combat operations since he took office. The Bush administrations attempt to place

detainees outside both the protection of Common Article 3 and the habeas corpus protection of

those accused of a criminal offense under the U.S. Constitution117

delayed decisions to try

captives in Article III courts, by military commissions that pass constitutional muster,118 or by

116 In a snit over pressure to reform his government, Harmid Karzai reportedly threatened to jointhe Taliban, apparently suggesting that the militant movement would then be redefined as one

of resistance against a foreign occupation rather than a rebellion against an elected government.Karzai Threatened to Join Taliban, Sources Say, CBS NEWS, May 9, 2010,

http://www.cbsnews.com/stories/2010/04/05/world/main6365107.shtml.

117 Boumediene v. Bush, 553 U.S. 723, 735 (2008).

118A previous attempt, the Military Commissions Act of 2006, 7, was an unconstitutional

suspension of the writ of habeas corpus. Boumediene, 553 U.S.at 792.


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courts-martial.119

Under the Third Geneva Convention, where the status of a captive is in doubt, he is to be

treated as a prisoner of war until a competent tribunal determines his status.120

A trial on charges

lodged after categorization of the captive must be before a regularly constituted court.121

The

Bush administration first tried to hold detainees indefinitely without charge or trial, and then

used a military commission established under the Military Commissions Act of 2006 to try

detainees until the U.S. Supreme Court held in Hamdan v. Rumsfeld that a commission

established under the Act lacked the power to proceed because its structure and procedures

violated the Geneva Conventions.

122

Part of the reluctance to convene a court-martial under the Uniform Code of Military

Justice may be due to a fear that trying unlawful combatants by courts-martial would be

perceived as elevating their legal statuses to that of lawful combatants. However, under the

Third Geneva Convention, determination of a captives status is made at the time of capture; 123 it

is not based on trial venue for any charges subsequent to capture. Common Article 3 does not

impose any conditions on trial venue except that it be a regularly constituted court affording all

the judicial guarantees which are recognized as indispensable by civilized peoples.124

119Jordan J. Paust, Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees,

JURIST, Mar. 12, 2010, http://jurist.law.pitt.edu/forumy/2010/03/court-martial-third-option-for-

trying.php.


121Id. at art. 3.

122548 U.S. 557, 567 (2006).

123 Geneva Convention III,supra note 35, at art. 5.

124Id. at art. 3(1)(d).


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Lawful combatants, such as members of the Taliban who were captured before the

Taliban was driven from power in Afghanistan and should therefore have prisoner of war status,

can be tried for violations of the laws of armed conflict (war crimes) that they may have

committed before they were captured. Members of al Qaeda, whether they are determined to be

lawful combatants who were allied with the Taliban government fighting against U.S. forces at

the time they were captured or whether they are unlawful combatants who were captured after

they were allied with the Taliban insurgents against the Karzai government, can be tried for

violations of the laws of armed conflict committed before the Taliban was driven from power.

These members of al Qaeda can be prosecuted for violations of the customary laws of war,

including war crimes, for taking up arms as unprivileged combatants, and for criminal acts they

may have committed in connection with 9/11 or other terrorist incidents. While the U.S.

continues to struggle with whether a regularly constituted court means a court that was in

existence before the start of the armed conflict or whether it means a court that is created

according to the U.S. domestic law, any of the three U.S. venues chosen would be appropriate

for both lawful combatants and unlawful combatants without changing their legal status under

international law.

A third challenge for the U.S. is the surrender of detainees into the custody of the Afghan

and Iraqi governments. President Obama ordered the prison at Guantanamo Bay, Cuba closed by

January 2010;125

however, it remains open while the Presidents administration works toward

disposition of those detainees who have not been released since he took office.126

In Iraq, where

125Obama Orders Guantanamo Closure, BBC NEWS, Jan. 22, 2009,

http://news.bbc.co.uk/2/hi/7845585.stm.

126Anne E. Kornblut, Obama Admits Guantanamo Wont Close by January Deadline, WASH.

POST, Nov. 18, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/11/18/

AR2009111800571.html.


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detainees have been turned over to the Iraqi government,127

there were reports of torture of Sunni

detainees at a secret prison in Baghdad.128

In Afghanistan, the U.S. military opened a new

detention center129

to replace the prison at Bagram Air Base, where detainees were to be handed

over to the Afghan government.130

Yet, the situations in Iraq and Afghanistan are not parallel

because Iraq lapsed into a civil war between the Sunnis and the Shiites.131 The weakness of the

Afghan government in controlling factionalism may result in detentions based on personal

grudges and paid informants, which has been charged by Afghans about detentions since the

2001 invasion.132

When an armed conflict is terminated, lawful combatants who are prisoners of war are

repatriated to their home country. Unlawful combatants may be held until they no longer pose a

serious security threat, and they may be prosecuted for unlawfully taking up arms, war crimes,

and other crimes.133

They can be tried as criminals under the domestic law of the state that

captures them or under the domestic law of the state in which they committed the acts that led to

127

Lindsay Wise,Houston Guard Members Watch Over Detainees in Iraq, HOUS. CHRON., Jan.10, 2010, http://www.chron.com/news/houston-texas/article/Houston-Guard-members-watch-over-detainees-in-Iraq-1715670.php.

128Sam Dagher,Report Details Torture at Secret Baghdad Prison, N.Y. TIMES, Apr. 27, 2010,

http://www.nytimes.com/2010/04/28/world/middleeast/28baghdad.html?_r=1.

129 Rod Nordland, U.S. and Afghanistan Agree on Prisoner Transfer as Part of Long-TermAgreement, N.Y. TIMES, Mar. 9, 2012, http://www.nytimes.com/2012/03/10/world/asia/us-and-

afghanistan-agree-on-detainee-transfer.html.

130

Alissa J. Rubin, U.S. Frees Detainees, but Afghans Anger Persists, N.Y. TIMES

, Mar. 19,2010, http://www.nytimes.com/2010/03/20/world/asia/20kabul.html.

131James D. Fearon,Iraqs Civil War, 86 FOREIGN AFF., Mar.-Apr. 2007, at 2.

132 Rubin,supra note 130.

133The Relevance of IHL in the Context of Terrorism,supra note74.


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their capture, or by any state under universal jurisdiction for war crimes.134

Unlawful

combatants are entitled under Common Article 3 to be protected against the passing of sentences

and the carrying out of sentences without judicial due process.135

Common Article 3 also

requires that all persons, no matter what their combatant status, be treated humanely.136

The

U.N. Convention Against Torture, ratified by the U.S. and Afghanistan, but not Iraq, forbids a

state to transfer a person to the custody of another state where there are substantial grounds for

believing that he would be in danger of being subjected to torture.137

The Bush Administration was accused of violating Common Article 3 and the

Convention Against Torture, not only for the harsh interrogation techniques employed at the

Guantanamo Bay Prison, but also for transferring detainees to overseas prisons where they were

tortured,138

a policy allegedly justified by the need for information to fight terrorism.139

The

Obama administration, while fulfilling its international humanitarian law obligations in one

134 GREEN,supra note 3, at 306-07.


136Id.

137Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51

(Dec. 10, 1984); Status of Treaties, UN TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (last visited Mar. 30, 2012).

138 Jane Mayer, Outsourcing Torture: The Secret History of Americas Extraordinary

Rendition Program, NEW YORKER, Feb. 14, 2005,http://www.newyorker.com/archive/2005/02/14/050214fa_fact6?currentPage=all.

139 David Wippman,Introduction: Do New Wars Call for New Laws?, inNEW WARS, NEW

LAWS? APPLYING THE LAWS OF WAR IN 21ST CENTURY CONFLICTS 1, 22-23 (David Wippman &Matthew Evangelista eds. 2005).


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respect by disavowing the use of torture by the U.S.,140

may still be in violation of the Geneva

Conventions and the U.N. Convention Against Torture if it transfers detainees to the custody of

Iraq or Afghanistan where it has substantial grounds to believe they will be tortured. However, if

the Obama administration has to leave troops in Afghanistan to monitor the compliance of those

U.S. allies with international humanitarian law because of international pressure to follow

through on the armed conflicts in which it has been engaged, it will compromise the commitment

the administration has made to completely withdraw U.S. forces from both countries.

WOULD A CHANGE IN STATUS FROM UNLAWFUL COMBATANTS TO LAWFUL COMBATANTS

YIELD A DIFFERENT RESULT?

Additional Protocol I (1977) confers privileged belligerent status on non-state parties to a

conflict if they meet the criteria of being affiliated with a party to the conflict, even if the

authority of the adverse party is not recognized,141

and even if they do not bear a distinctive

insignia viewable from a distance so as not to be distinguished from civilian noncombatants.142

Accession to this provision binds the parties to the Convention to treat captured combatants as

prisoners of war and to repatriate them at the end of the armed conflict unless war crimes charges

are warranted.143

Since combatant status is not conferred until capture, the legal status of belligerents

involved in the armed conflict does not really matter until a belligerent is taken prisoner. At that

point, lawful combatants are granted combat immunity for the lawful acts they committed in the

140

Obama Names Intel Picks, Vows No Torture, MSNBC, Jan. 9, 2009,http://www.msnbc.msn.com/id/28574408/.

141Additional Protocol I,supra note 42, at arts. 43-44.

142 MCDONNELL,supra note 43, at 112.

143Additional Protocol I,supra note 42, at art. 45(2).


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course of the armed conflict.144

They can be charged only with violations of the laws of armed

conflict itself or with violations of international human rights law.145

For example, lawful

combatants can be charged for grave breaches of the Geneva Conventions, such as targeting

civilians, taking hostages, or using civilians as human shields. Unlawful combatants are not

granted combat immunity; in addition to charges of grave breaches of the laws of armed conflict,

they can be tried for the act of taking up arms itself.146

Still, if a combatant is to be charged with

war crimes, such as targeting civilians, taking hostages, or using civilians as human shields, the

charges lodged will be the same whether the combatants status is lawful or unlawful.

Combatant status matters to civilians because they are entitled to protection from targeted

attack.147 It does not matter to lawful or unlawful combatants because they are lawful targets in

either case. Combatants who masquerade as civilians are still lawful targets. Taking up arms

against the opposing military force is what makes a combatant a combatant.148

As a result, there

is no advantage to a combatant to gain lawful combatant status while he is at liberty, or any

incentive to conform his acts to the requirements of international humanitarian law. If he is

captured, lawful combatant status will not protect him from charges for violations of the laws of

war, compared to which the charges for taking up arms are de minimus. Since he will not be

released until the end of the armed conflict in either case, the only penalty he will face for taking

144MCDONNELL,supra note 43, at 110.

145Id.

146Id. at 112.

147Gasser,supra note 76, at 554.

148 Fleck,supra note 58, at 68.


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up arms is the possibility of longer confinement than that faced by lawful combatants who are

prisoners only so long as they are prisoners of war.

CONCLUSION

While the U.S. has reasonable concerns about the ramifications of conferring combatant

status on persons who do not already meet the criteria of Geneva Convention III, Article 4, that

is, in effect, what the U.S. did when it entered into a non-international armed conflict with al

Qaeda in Afghanistan. By conferring an unlawful combatant status on al Qaeda, as the Court

found that it did in Hamdan v. Rumsfeldwhen it instituted a military action against a terrorist

organization, the U.S. elevated common criminals to a legal status under the laws of war to

which they would otherwise not be entitled. When a political decision is taken to invoke the

laws of armed conflict by deploying military forces to track down persons who are criminals

under U.S. domestic laws, one of the unintended consequences is that the laws of armed conflict

impose legal duties and constraints on the pursuers.

The difficulty in sorting out the provisions of, and distinctions between, international

human rights law, the laws of armed conflict, and international and domestic criminal law is

exacerbated when a national military engages in an armed conflict with a non-state party outside

the nations borders with the purpose of hunting down and destroying criminals. To members of

the public, if it looks like a war, sounds like a war, and feels like a war, it must be a war. If a

nation is at war, then the persons doing the fighting must be warriors.

The difference between an international armed conflict and a non-international armed

conflict is not made clearer when the state party is bound to fight in compliance with the Geneva

Conventions and Hague Rules, but the non-state party has no incentive to fight under these same

rules. When it is obvious that the non-state party would lose its only strategic and tactical


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advantage against a superior military force if it complies with the rules of war by protecting

civilians and identifying itself by a distinctive insignia, then there is a temptation placed on the

state party to the conflict to use the same strategies and tactics in order to even up the fight.

This is not what the Geneva Conventions were designed to accomplish in the High Contracting

Parties attempt to alleviate unnecessary suffering in time of war.

The American experience in Afghanistan and Iraq demonstrates that the rules by which

the U.S. fights its wars, the laws of armed conflict to which the U.S. is bound under the Geneva

Conventions, the Hague Rules, and the customary laws of war, cannot necessarily rescue a

political decision to use the U.S. military as an instrument of international law enforcement or as

an instrument of regime change. But neither can the laws of armed conflict be changed to suit

the needs of a military force from conflict to conflict, depending on the enemy. In that regard,

the experience of the U.S. fighting against al Qaeda terrorists in Afghanistan and politically-

motivated factions in Iraq may be instructive as to further development of international

humanitarian law to prevent unnecessary suffering in times of war.

does being at war make them all warriors?

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